FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court DOUGLAS A. GLASER,
Plaintiff - Appellant,
v. No. 18-1000 (D.C. No. 1:16-CV-02499-RM-MLC) LOU ARCHULETA, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se,1 Colorado state prisoner Douglas Glaser seeks a certificate
of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2241
petition. We deny his request for a COA and dismiss this matter.
Background
In his § 2241 petition, Glaser argued that the prison warden denied him good-
time credits and earned-time credits for his presentence confinement. This denial,
Glaser said, amounted to wealth-based discrimination, which allegedly deprived him
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Glaser’s advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). of equal-protection guaranties. The magistrate judge recommended denying Glaser’s
petition and dismissing the case.
Glaser didn’t timely object to the magistrate judge’s recommendation. His
written objections were due on June 14, 2017; he filed them on June 22, 2017.
Nevertheless, the district court considered Glaser’s untimely objections. But it found
them unpersuasive and adopted the magistrate judge’s recommendation in an order
dated November 22, 2017.
On December 8, 2017, Glaser asked the district court for a COA. The district
court denied that motion on December 13, 2017. Glaser filed a notice of appeal on
December 29, 2017.
We then issued a show-cause order directing Glaser to address (1) whether he
timely filed his notice of appeal and (2) whether he waived his right to appellate
review by failing to timely object to the magistrate judge’s recommendation. Glaser
filed a response, and we referred these issues to the merits panel.
Analysis
We begin with the two procedural hurdles addressed in our show-cause order.
First, we consider whether Glaser’s appeal is timely. See Rodgers v. Wyo. Attorney
Gen., 205 F.3d 1201, 1204–05 (10th Cir. 2000) (stating that filing timely notice of
appeal in civil case is jurisdictional requirement), overruled on other grounds
by Slack v. McDaniel, 529 U.S. 473 (2000). Pursuant to Federal Rule of Appellate
Procedure 4(a)(1)(A), an appellant must file a notice of appeal “within 30 days after
2 entry of the judgment or order appealed from.” Here, the district court entered
judgment on November 22, 2017. So Glaser’s notice of appeal was due on December
22, 2017, and his December 29, 2017 notice of appeal was late. But we will construe
his motion for a COA—filed on December 8, 2017, and within the 30-day deadline—
as his notice of appeal. See Rodgers, 205 F.3d at 1204–05 (treating request for COA
as notice of appeal for purposes of Rule 4(a)(1)(A)). Accordingly, Glaser’s notice of
appeal was timely, and we have jurisdiction over his appeal.
Next, we discuss the second procedural hurdle addressed in our show-cause
order: the firm-waiver rule. Under that rule, “a party who fails to make a timely
objection to the magistrate judge’s findings and recommendations waives appellate
review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119 (10th Cir. 2005). Here, Glaser clearly filed his objections late, which, in a
direct appeal, would preclude appellate review. But this case involves a COA request.
We previously considered but declined to decide “whether the firm-waiver rule
generally operates as an independent basis for denying a COA.” United States v.
Thyberg, No. 17-2120, 2018 WL 776338, at *2 (10th Cir. Feb. 8, 2018)
(unpublished). Thyberg reasoned that “even if (1) we assume that the firm-waiver
rule isn’t an independent basis for denying a COA or (2) we assume that it is but also
assume that it doesn’t apply here, we would nevertheless deny [petitioner] a COA
under the traditional COA framework.” Id.; see also Slack, 529 U.S. at 484 (setting
forth traditional test for obtaining COA). We find Thyberg’s reasoning persuasive
3 and adopt it here. See United States v. Engles, 779 F.3d 1161, 1162 & n.1 (10th Cir.
2015) (adopting persuasive reasoning from unpublished order). Thus, despite
Glaser’s failure to timely object to the magistrate judge’s recommendation, we will
proceed “under the traditional COA framework.” Thyberg, 2018 WL 776338, at *2.
In order to appeal the denial of his § 2241 petition, Glaser must first obtain a
COA. See 28 U.S.C. § 2253(c)(1)(A); Dulworth v. Jones, 496 F.3d 1133, 1135 (10th
Cir. 2007) (requiring COA to appeal adverse decision in § 2241 proceeding). We will
grant Glaser a COA if “reasonable jurists would find the district court’s assessment
of [his] constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
In denying Glaser’s petition, the district court first rejected Glaser’s assertion
that he belongs to a suspect class. Specifically, Glaser argued that he was a victim of
wealth-based discrimination because (1) he wasn’t able to post bond and was
therefore confined prior to being sentenced and (2) he allegedly didn’t receive good-
time credit for the time he spent in presentence confinement. In rejecting this
argument, the district court found that “[w]ealth, or lack thereof, is no longer
considered a suspect class for equal protection purposes” and thus declined to apply
strict-scrutiny review. R. 130; see also Lewis v. Casey, 518 U.S. 343, 347 (1996);
Petrella v. Brownback, 787 F.3d 1242, 1266 (10th Cir. 2015). On appeal, Glaser fails
to rebut this correct statement of the law. Therefore, we conclude no reasonable jurist
would find the district court’s assessment debatable or wrong and decline to grant a
COA on this basis.
4 Next, the district court rejected Glaser’s second argument in favor of strict-
scrutiny review, finding that Colorado doesn’t provide individuals with a
fundamental right to either good-time credit or earned-time credit. Indeed, Colorado
expressly permits the department of corrections to withhold good-time credit from a
prisoner. See Colo. Rev. Stat. § 17-22.5-301(4). And dispensing earned-time credit is
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court DOUGLAS A. GLASER,
Plaintiff - Appellant,
v. No. 18-1000 (D.C. No. 1:16-CV-02499-RM-MLC) LOU ARCHULETA, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se,1 Colorado state prisoner Douglas Glaser seeks a certificate
of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2241
petition. We deny his request for a COA and dismiss this matter.
Background
In his § 2241 petition, Glaser argued that the prison warden denied him good-
time credits and earned-time credits for his presentence confinement. This denial,
Glaser said, amounted to wealth-based discrimination, which allegedly deprived him
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Glaser’s advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). of equal-protection guaranties. The magistrate judge recommended denying Glaser’s
petition and dismissing the case.
Glaser didn’t timely object to the magistrate judge’s recommendation. His
written objections were due on June 14, 2017; he filed them on June 22, 2017.
Nevertheless, the district court considered Glaser’s untimely objections. But it found
them unpersuasive and adopted the magistrate judge’s recommendation in an order
dated November 22, 2017.
On December 8, 2017, Glaser asked the district court for a COA. The district
court denied that motion on December 13, 2017. Glaser filed a notice of appeal on
December 29, 2017.
We then issued a show-cause order directing Glaser to address (1) whether he
timely filed his notice of appeal and (2) whether he waived his right to appellate
review by failing to timely object to the magistrate judge’s recommendation. Glaser
filed a response, and we referred these issues to the merits panel.
Analysis
We begin with the two procedural hurdles addressed in our show-cause order.
First, we consider whether Glaser’s appeal is timely. See Rodgers v. Wyo. Attorney
Gen., 205 F.3d 1201, 1204–05 (10th Cir. 2000) (stating that filing timely notice of
appeal in civil case is jurisdictional requirement), overruled on other grounds
by Slack v. McDaniel, 529 U.S. 473 (2000). Pursuant to Federal Rule of Appellate
Procedure 4(a)(1)(A), an appellant must file a notice of appeal “within 30 days after
2 entry of the judgment or order appealed from.” Here, the district court entered
judgment on November 22, 2017. So Glaser’s notice of appeal was due on December
22, 2017, and his December 29, 2017 notice of appeal was late. But we will construe
his motion for a COA—filed on December 8, 2017, and within the 30-day deadline—
as his notice of appeal. See Rodgers, 205 F.3d at 1204–05 (treating request for COA
as notice of appeal for purposes of Rule 4(a)(1)(A)). Accordingly, Glaser’s notice of
appeal was timely, and we have jurisdiction over his appeal.
Next, we discuss the second procedural hurdle addressed in our show-cause
order: the firm-waiver rule. Under that rule, “a party who fails to make a timely
objection to the magistrate judge’s findings and recommendations waives appellate
review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119 (10th Cir. 2005). Here, Glaser clearly filed his objections late, which, in a
direct appeal, would preclude appellate review. But this case involves a COA request.
We previously considered but declined to decide “whether the firm-waiver rule
generally operates as an independent basis for denying a COA.” United States v.
Thyberg, No. 17-2120, 2018 WL 776338, at *2 (10th Cir. Feb. 8, 2018)
(unpublished). Thyberg reasoned that “even if (1) we assume that the firm-waiver
rule isn’t an independent basis for denying a COA or (2) we assume that it is but also
assume that it doesn’t apply here, we would nevertheless deny [petitioner] a COA
under the traditional COA framework.” Id.; see also Slack, 529 U.S. at 484 (setting
forth traditional test for obtaining COA). We find Thyberg’s reasoning persuasive
3 and adopt it here. See United States v. Engles, 779 F.3d 1161, 1162 & n.1 (10th Cir.
2015) (adopting persuasive reasoning from unpublished order). Thus, despite
Glaser’s failure to timely object to the magistrate judge’s recommendation, we will
proceed “under the traditional COA framework.” Thyberg, 2018 WL 776338, at *2.
In order to appeal the denial of his § 2241 petition, Glaser must first obtain a
COA. See 28 U.S.C. § 2253(c)(1)(A); Dulworth v. Jones, 496 F.3d 1133, 1135 (10th
Cir. 2007) (requiring COA to appeal adverse decision in § 2241 proceeding). We will
grant Glaser a COA if “reasonable jurists would find the district court’s assessment
of [his] constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
In denying Glaser’s petition, the district court first rejected Glaser’s assertion
that he belongs to a suspect class. Specifically, Glaser argued that he was a victim of
wealth-based discrimination because (1) he wasn’t able to post bond and was
therefore confined prior to being sentenced and (2) he allegedly didn’t receive good-
time credit for the time he spent in presentence confinement. In rejecting this
argument, the district court found that “[w]ealth, or lack thereof, is no longer
considered a suspect class for equal protection purposes” and thus declined to apply
strict-scrutiny review. R. 130; see also Lewis v. Casey, 518 U.S. 343, 347 (1996);
Petrella v. Brownback, 787 F.3d 1242, 1266 (10th Cir. 2015). On appeal, Glaser fails
to rebut this correct statement of the law. Therefore, we conclude no reasonable jurist
would find the district court’s assessment debatable or wrong and decline to grant a
COA on this basis.
4 Next, the district court rejected Glaser’s second argument in favor of strict-
scrutiny review, finding that Colorado doesn’t provide individuals with a
fundamental right to either good-time credit or earned-time credit. Indeed, Colorado
expressly permits the department of corrections to withhold good-time credit from a
prisoner. See Colo. Rev. Stat. § 17-22.5-301(4). And dispensing earned-time credit is
also discretionary. See Colo. Rev. Stat. §§ 17-22.5-302(1), 17-22.5-405(a). In his
COA application, Glaser attempts to rebut the district court’s conclusion by
discussing prior versions of these statutes. But these prior versions aren’t applicable
to this appeal. Thus, we won’t grant a COA on this basis either.
Because the district court rejected Glaser’s arguments in favor of strict-
scrutiny review, it applied rational-basis review to Glaser’s equal-protection claims.
In so doing, it concluded that Glaser failed to show that the prison warden’s actions
(1) weren’t “reasonably related to legitimate penological interests” and (2) weren’t an
“exaggerated response to such objectives.” R. 132 (quoting Beard v. Banks, 548 U.S.
521, 528 (2006)). Glaser fails to address these rulings on appeal. Thus, he has waived
any challenge to them. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015) (“The first task of an appellant is to explain to us why the district
court’s decision was wrong.”).
Accordingly, we deny Glaser’s COA request and dismiss this case. As a final
matter, we deny Glaser’s motion to proceed IFP because he fails to present a
nonfrivolous argument. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
5 2005) (stating that “in order to succeed on a motion to proceed IFP, the movant must
show a financial inability to pay the required filing fees, as well as the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised in
the action”).
Entered for the Court
Nancy L. Moritz Circuit Judge