Adargo v. United States Parole Commission , 26 F. App'x 795 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 15 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JACK ADARGO,
Petitioner-Appellant,
v. No. 01-1269
(D.C. No. 00-Z-746)
UNITED STATES PAROLE (D. Colo.)
COMMISSION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Jack Adargo, a federal inmate appearing pro se , appeals the
district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2241.
We dismiss the appeal because petitioner failed to file specific objections to the
magistrate judge’s report and recommendation.
I.
In 1984, petitioner was convicted of robbery of a federally insured savings
and loan institution. He was paroled in 1994, but was returned to custody several
times after a series of parole violations. In 1999, while out on parole, petitioner
was taken into custody again on a parole violation warrant. His parole was
revoked after a parole revocation hearing held more than eight months after he
was returned to custody. Petitioner filed a § 2241 petition claiming that the
Parole Commission violated his due process rights by failing to provide him with
a timely revocation hearing.
It is undisputed that petitioner did not receive a timely parole revocation
hearing. See 18 U.S.C. § 4214(c) (requiring hearing be held within ninety days;
applicable to prisoners such as petitioner convicted for offenses committed before
November 1, 1987). Petitioner’s case was referred to a magistrate judge who
concluded in a report and recommendation that petitioner’s due process rights
were not violated by the delay, however, because he did not contend, or present
evidence demonstrating, that he was prejudiced in any way by the delay. See
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Harris v. Day , 649 F.2d 755, 761-62 (10th Cir. 1981) (holding that, absent
showing of prejudice, delay in holding revocation hearing on parole revocation
warrant does not violate parolee’s due process rights). Petitioner was ultimately
afforded a revocation hearing at which he was represented by counsel. He
received notice of the evidence against him and was afforded an opportunity to
present evidence and witnesses. He presented no evidence or defense and did not
contest the conviction upon which his parole revocation was based. Accordingly,
the magistrate judge recommended that his § 2241 petition be denied.
Petitioner filed a half-page objection, stating only that he found it
“incredible a delay by the parole commission did not violate the due process
clause.” R. Doc. 23. The district court adopted the report and recommendation,
stating it agreed with the magistrate judge’s recommendation and that petitioner
had not raised any specific issue for the court’s consideration. R. Doc. 25. 1
1
Although the Parole Commission claims the objections were not timely
filed, it does not claim petitioner waived appellate review as a result. See Moore
v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (explaining firm waiver rule
for untimely filed objections). The magistrate judge’s report was filed on
February 22, 2001 and informed petitioner that he was required to file any
objections within ten days of its service. Petitioner filed his objections on March
26, 2001. The district court stated the objections were untimely, but considered
the pleading “in the interest of justice.” R. Doc. 25. However, the record and the
district court docket sheet indicate that the report and recommendation was not
served on petitioner until March 16, 2001. Thus, it appears that petitioner’s
objections were timely filed within ten days of service of the report and
recommendation on petitioner. See Fed. R. Civ. P. 72(b) (requiring objections to
be filed within ten days after being served with a copy of the magistrate judge’s
recommended disposition (emphasis added)).
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II.
Rule 72 of the Federal Rules of Civil Procedure provides that when a
magistrate judge issues a ruling on a dispositive pretrial motion, a party has ten
days after service to “serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b). We have held that failure
to file a specific objection to a magistrate judge’s report and recommendation
constitutes a waiver of appellate review. United States v. 2121 E. 30th St. ,
73 F.3d 1057, 1060 (10th Cir. 1996). Objections to the magistrate’s report must
be specific enough to focus the district court’s attention on the factual and legal
issues in dispute. Id. We have held that the waiver rule need not be applied
where the interests of justice so dictate. Id.Here, petitioner has failed to comply with the specific objection
requirement established by Fed. R. Civ. P. 72 and circuit precedent. He did not
provide the district court with any meaningful notice as to the particular factual or
legal errors he implicitly claims the magistrate judge committed. Further, we do
not conclude that the interests of justice indicate that petitioner should be excused
from the waiver rule. The arguments raised by petitioner in his § 2241 petition
were thoroughly and persuasively rejected by the magistrate judge. On appeal,
petitioner makes only a general assertion that he was denied a fair hearing, yet he
does not articulate any way in which he was prejudiced by the delayed hearing,
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nor does he assert any specific factual or legal error by the magistrate judge.
Thus, the interests of justice do not warrant excusing petitioner from the waiver
rule. 2
Accordingly, we hold that petitioner waived appellate review by failing to
file specific objections to the magistrate judge’s report and recommendation. The
appeal is DISMISSED. Petitioner’s request to proceed in forma pauperis is
DENIED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
2
It is not clear whether the district court reviewed the magistrate judge’s
report and recommendation de novo , despite the lack of an appropriately specific
objection. Even if the district court did perform a de novo review, that does not
preclude application of the waiver rule. See 2121 E. 30th St. , 73 F.3d at 1061(declining to lift the bar of appellate review despite the district court’s sua sponte
decision to conduct a de novo review where objections were not specific enough
to preserve the issues for appellate review).
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