UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff - Respondent, Case No. 14-cr-20794 

v Honorable Thomas L. Ludington 

WILLIAM MCARTHUR SMITH, 

 Defendant - Petitioner. 

__________________________________________/ 

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING 

PETITIONER’S MOTION TO VACATE, DENYING CERTIFICATE OF 

APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 

 On December 16, 2014, Petitioner William McArthur Smith pleaded guilty to 

Distribution of Cocaine Base, 21 U.S.C. § 841(a)(1), and Using or Carrying a Firearm During 

and In Relation to a Drug Trafficking Crime, 18 U.S.C. § 924(c)(1)(A). Plea Agreement, ECF 

No. 20. On April 6, 2015, the Court entered judgment, sentencing Smith to a total of 100 

months’ imprisonment. J. 2, ECF No. 27. 

 On June 21, 2015, Smith filed a motion for leave to file a late notice of direct appeal. 

Because Smith’s motion was untimely, the Court denied it on July 17, 2015. See Order 2 

(quoting United States v. Tarrant, 158 F.3d 946 at *3 (6th Cir. 1998)). Smith’s attempt to appeal 

the order denying him leave to appeal was dismissed by the Sixth Circuit on December 15, 2015. 

See ECF No. 33. 

 Over a year after his judgment became final, on July 1, 2016, Petitioner Smith filed a 

motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his conviction and sentence 

was rendered unconstitutional by the Supreme Court’s decision in Johnson v. United States, 135 

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S. Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as 

unconstitutionally vague). See ECF No. 37. That motion was referred to Magistrate Judge 

Patricia T. Morris. See ECF No. 41. On January 19, 2017 the magistrate judge issued her report 

recommending that Smith’s motion to vacate be denied. See ECF No. 143. The magistrate 

judge reasoned that Johnson was inapplicable to Smith’s conviction and sentence under § 924(c). 

Although the magistrate judge’s report explicitly states that the parties to this action 

could object to and seek review of the recommendation within fourteen days of service of the 

report, neither party has filed any objections. The election not to file objections to the magistrate 

judge’s report releases the Court from its duty to independently review the record. Thomas v. 

Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation 

waives any further right to appeal. 

The Court concludes that Petitioner has failed to make a substantial showing of the denial 

of a constitutional right. Accordingly, a certificate of appealability is not warranted in this case. 

The Court further concludes that Petitioner should not be granted leave to proceed in forma 

pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a). 

Accordingly, it is ORDERED that the magistrate judge’s report and recommendation, 

ECF No. 44, is ADOPTED. 

 It is further ORDERED that Petitioner William McArthur Smith’s motion to vacate his 

sentence, ECF No. 37, is DENIED. 

It is further ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: February 22, 2017 

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PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on February 22, 2017. 

 s/Kelly Winslow for 

 MICHAEL A. SIAN, Case Manager 

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