Carter v. Sawyer

38 F. App'x 565

Opinion

ORDER AND JUDGMENT

Footnotes

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McKAY, Circuit Judge.

After examining the briefs and the 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 is a pro se federal prisoner 28 U.S.C. § 2241 appeal. Mr. Carter did not file his § 2241 petition on the proper form, even after the district court ordered him to do so on several occasions. The district court adopted the magistrate judge’s recommendation that the petition be dismissed without prejudice because Mr. Carter faded to submit his petition on the proper form. The district court then denied Mr. Carter’s motion for reconsideration because Mr. Carter did not offer a valid reason for his failure to timely object to the magistrate judge’s report and recommendation. Mr. Carter appeals both the district court’s dismissal of his § 2241 petition and the court’s subsequent denial of his motion for reconsideration.

We have carefully reviewed Petitioner’s brief, the district court’s disposition, and the record on appeal. We agree with the district court that Petitioner has not demonstrated a valid reason for his failure to timely object to the magistrate judge’s report. Therefore, Petitioner has waived his right to appellate review of the factual and legal issues contained in the report. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991).

Petitioner was advised by the magistrate judge that failure to timely object to the magistrate judge’s report would result in the waiver of his right to appeal. Additionally, the interests of justice do not require a different result in this case. We find no merit in Petitioner’s assertion that the district court unlawfully used a magistrate judge instead of an Article III judge to review his petition. See 28 U.S.C. § 636(b)(1)(A). Therefore, we AFFIRM the district court’s dismissal.

Appellant’s motion to proceed in forma pauperis on appeal is GRANTED.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.