Clovis Carl Green, Jr. v. Honorable O. Edward Schlatter United States District Court, District of Colorado , 992 F.2d 1222 ( 1993 )

992 F.2d 1222

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

CLOVIS CARL GREEN, JR., Petitioner-Appellant,
v.
HONORABLE O. EDWARD SCHLATTER; UNITED STATES DISTRICT
COURT, DISTRICT OF COLORADO, Respondents-Appellees.

No. 92-1247.

United States Court of Appeals, Tenth Circuit.

April 27, 1993.

ORDER AND JUDGMENT*

Before McKAY, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

This appeal is taken from an order of the district court dismissing Mr. Green's "Petition for Declaratory and Injunctive Relief." Mr. Green sought a declaration that the district court's practice of referring habeas corpus petitions to a magistrate judge for review when the filing fee has been paid by a petitioner is violative of due process and equal protection. He cites no authority for this proposition.

3

We disagree. It is clear that under 28 U.S.C. § 636(b)(1)(B) habeas corpus petitions by pro se prisoners may be referred to a magistrate judge. See Clark v. Poultin, 963 F.2d 1361 (10th Cir.), cert. denied, 113 S.Ct. 635 (1992). See also Washington v. Estelle, 648 F.2d 276, 280-81 (5th Cir.) (§ 2254 petition properly referred to magistrate judge's office), cert. denied, 454 U.S. 899 (1981); Grassia v. Scully, 892 F.2d 16, 18 (2d Cir.1989) (under § 636(b)(1)(B) district court may refer habeas petition to magistrate judge for preparation of report and recommendation).

4

Specifically, Mr. Green claims that one of his petitions for writ of habeas corpus, No. 92-N-1014, was not promptly resolved as required by 28 U.S.C. § 2243. However, as noted by the district court, there were numerous actions taken in No. 92-N-1014, including the district court's rejection of the magistrate judge's first recommendation. Following the second recommendation, Mr. Green did not file any objections. The district court then affirmed the magistrate judge's recommendation. Mr. Green did not appeal, thereby waiving any objection to the handling of that case. We also note that the time from filing to disposition was five months.

5

Finally, the district court specifically addressed all of Mr. Green's other contentions and further advised him of the potential consequences of filing frivolous lawsuits. On appeal Mr. Green merely repeats his complaint that No. 92-N-1014 took too long to be decided. This he does notwithstanding the fact that by the time he filed his brief in this case, No. 92-N-1014 had long since been dismissed and not appealed. We find no merit in his arguments.

6

The judgment of the United States District Court for the District of Colorado is AFFIRMED.

7

The mandate shall issue forthwith.

*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3