Chapman v. Ward

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 21, 2006
• Docket: 05-6321
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 21, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

SHAWN R. CHAPMAN, Petitioner-Appellant, No. 05-6321 v. (D.C. No. CIV-04-719-C) RON WARD (W. D. Okla.) Respondent-Appellee.

ORDER

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Petitioner, a state prisoner appearing pro se, seeks habeas relief pursuant to

28 U.S.C. § 2254. The magistrate judge dismissed his petition as time-barred by

the statute of limitations. Report and Recommendation, 5 (W.D. Okla. Aug. 24,

2004). Petitioner did not appeal the magistrate judge’s Report and

Recommendation even though he was advised that the deadline for filing

objections was September 12, 2004. In a September 22, 2004, Order, Petitioner

was granted an extension of time until October 13, 2004, to file his objections.

No objections were filed. On October 28, 2004, the district court entered a

separate judgment and order adopting the magistrate judge’s Report and

Recommendation and dismissing the petition as untimely. Petitioner filed a timely appeal in the district court on November 9, 2004.

By failing to file an objection to the magistrate judge’s Report and

Recommendation, Petitioner has waived his right to appellate review of both

factual and legal determinations, unless we elect to review the merits of the

appeal based on the “interests of justice” exception. See Key Energy Resources

Inc. v. Merrill, 230 F.3d 1197, 1199-1200 (10th Cir. 2000); Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). We do not so elect.

The issues Petitioner raises on appeal are identical to those brought before

the district court. To grant a certificate of appealability, Petitioner must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2) (1994). To meet this burden, Petitioner must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

We have carefully reviewed Petitioner’s brief, the district court’s

disposition, the magistrate judge’s recommendation, and the record on appeal.

Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the same reasons set forth by the magistrate judge and adopted by

-2- the district court in its order of October 28, 2004, we cannot say “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner.” Id.

We DENY Petitioner’s request for a certificate of appealability and his

motion to proceed in forma pauperis, and we DISMISS the appeal.

Entered for the Court

Monroe G. McKay Circuit Judge

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