Opinion
CIV 03-765 MCA/KBM.
June 30, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
On March 9, 2004, the Magistrate Judge filed detailed proposed findings recommending that LaVoy's § 2254 petition be dismissed, and that his requests for counsel and an evidentiary hearing be denied. See Doc. 23. Both Respondents and Petitioner filed objections. See Docs. 24, 35. For the purposes of discussion only, I will assume, without deciding, that these objections are timely and sufficient, and thus review them de novo. Respondents' Objections. Respondents filed timely objections that provide "for the purpose of preservation of the procedural default arguments made in their [motion to dismiss]." Doc. 24. Usually "general" objections are insufficient to preserve an issue for appellate review. However, I will construe Respondents' reference to their motion to dismiss as incorporating the same arguments they made before the Magistrate Judge. And, for the same reasons as the Magistrate Judge, I find the objection without merit.
E.g, Nolon v. Martin, 188 F.3d 519 (10th Cir. 1999) (unpublished) ("The district court noted that Nolon's objection was ineffective. . . . Finding that Nolon had "waived any further review by this Court of the factual and legal issues contained in the recommendation," the district court nonetheless conducted a de novo review before adopting the magistrate judge's report and recommendation. . . . As the district court correctly noted, our opinion in One Parcel of Real Property, 73 F.3d at 1060, provides that `a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for . . . appellate review.' Thus, Nolon's general objection is not sufficient to preserve the specific issues he attempts to raise on appeal. Moreover, having reviewed the record, we conclude that the interests of justice do not warrant lifting the bar of appellate review here.") (other citations omitted).
Petitioner's Objections. The Magistrate Judge granted Petitioner two extensions in which to file objections, setting the date for him to do so as May 21, 2004, with no further extensions. She also permitted him to file supplemental material with his objections. See Docs. 30, 33.
The certificate of service on his objections is dated May 21, 2004, although the Court did not file the document until May 27, 2004. I do not have before me any evidence of the procedures adopted by the prison where Petitioner is housed. I will assume that an unsworn certificate of service is sufficient to establish the date that Petitioner delivered his objections to the prison for mailing, and therefore consider his objections timely under the "mailbox rule."
In United States v. Gray, 182 F.3d 762 (10th Cir. 1999), the Tenth Circuit held that where a prison's "legal mail system does not provide a log or other record of the receipt by prison authorities" and "the only evidence of the date appellant gave his [§ 2255 petition] to prison authorities for mailing is his certificate of service, which contains a declaration in compliance with 28 U.S.C. § 1746," the prisoner could benefit from the rule and his petition was timely. Subsequent decisions have not necessarily required strict adherence to the § 1746 requirement outside the context of notices of appeal. Compare United States v. Ceballos-Martinez, 358 F.3d 732, 735-36 (10th Cir. 2004) (noting that "[a]t first blush, our holding may appear to be in tension with established law dictating that we liberally construe a pro se litigant's pleadings . . . and that we interpret procedural rules in favor of "deciding cases on the merits as opposed to dismissing them because of minor technical defects. . . . Because Congress has delineated the methods in which a party may prove timely compliance with Fed.R.App.P. 4(c)(1)," that is, "a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid" and prisoner there did not comply with either requirement, Court lacked jurisdiction over the appeal) (internal quotations and citations omitted), with Adams v. LeMaster, 172 F.3d 62 at *3 n. 3 (10th Cir. 1999) (unpublished) ("Although many of our cases applying Houston v. Lack are unpublished, in at least one instance we found a proper certificate of service to be relevant proof of delivery to prison officials. See United States v. Warner, 1995 WL 307586, at *1 (10th Cir. May 11, 1995) [cert. denied, 516 U.S. 1152 (1996)]. Of course, the date of delivery to prison authorities is always a fact question, decided on a case-by-case basis."), and United States v. Hansen, 17 Fed. Appx. 934, 935 (10th Cir. 2001) ("As an initial matter, we address the question of jurisdiction. This court has adopted a `firm waiver' rule when a party fails to object to the findings and recommendations of the magistrate judge. . . . `Our waiver rule provides that the failure to make timely objection to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.' . . . However, Hansen mailed his objections on the tenth day after the report and recommendation was filed and the district court referenced his objections in its opinion. Therefore, we have jurisdiction to consider the case on its merits.") (citations omitted).
Nevertheless, I find Petitioner's specific objections without merit, and decline to "stay" this habeas matter for him to pursue a separate civil action alleging denial of access to the courts because of his asserted lack of access to "caselaw." See Doc. 35 at 2, 3, 6. I also note that the transcripts he attached as supplements to his objections provide no basis for arriving at a different conclusion from that of the Magistrate Judge. Those transcripts do not contradict the findings and, instead, support and strengthen them.
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. The Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 23) is ADOPTED;
2. Respondents' motion to dismiss (Doc. 12) is GRANTED IN PART;
3. The § 2254 petition is dismissed with prejudice;
4. Petitioner's motions for an evidentiary hearing and counsel (Docs. 17, 20) are DENIED; and
5. A final order enter concurrently herewith.