Price v. Reid

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 30, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

RA YM ON D A RTH UR PRICE,

Petitioner-A ppellant, v. Nos. 07-1141 and 07-1088 SU PERINTENDENT REID; and (D.C. Nos. 03-cv-2321-EW N-M JW A TTO RN EY G EN ER AL O F THE and 04-cv-00201-EW N-M JW ) STA TE OF C OLO RA D O , (D . Colo.) Respondents-Appellees.

OR DER DENYING CERTIFICATE O F APPEALABILITY *

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

R aymond Price seeks certificates of appealability (“COA”) in the two

above-captioned matters. W e conclude that, with one exception, M r. Price failed

to preserve any issue for appellate review . W ith respect to the issue M r. Price did

preserve, we find it without sufficient merit to w arrant a COA. W e have also

conducted a thorough review of his two cases for any indicia of other plain errors

that might merit the issuance of a CO A and have found none.

* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I

A

In 1990, a Colorado jury found M r. Price guilty of three counts of theft and

three counts of criminal possession of a forged instrument, for which he was

sentenced to nine years in prison, to run consecutively to a life sentence he was

already serving in an unrelated case. In July 1991, M r. Price escaped from

custody and engaged in a forty-eight hour crime spree before he was recaptured.

For his activities while on the loose, a Colorado jury found M r. Price guilty of

escape, second degree kidnaping, first degree sexual assault, two counts of

aggravated robbery, and three counts of holding hostages; he was sentenced to a

total of 160 years in prison for these offenses. The Colorado Court of Appeals

affirmed and the Colorado Supreme Court denied review in both cases. See

Colorado v. Price, 903 P.2d 1190 (Colo. Ct. App. 1995). M r. Price thereafter

unsuccessfully sought post-conviction relief in two distinct Colorado state habeas

petitions.

Following his failed state court appeals and collateral challenges, in late

2003 and early 2004 M r. Price filed two separate pro se habeas petitions under 28

U.S.C. § 2254 in the United States District Court for the District of Colorado that

form the basis of this appeal. One petition (appealed as 07-1141) focused on the

1990 convictions and alleged that (1) M r. Price was denied due process and equal

protection by the Colorado court system; (2) the trial court abused its discretion

-2- in granting the prosecution’s challenge for cause to a prospective juror; (3) M r.

Price received ineffective assistance of appellate counsel; and (4) insufficient

evidence existed to sustain his convictions. Challenging his 1991 escape-related

convictions, M r. Price’s other petition (appealed as 07-1088) raised similar

claims. 1 M r. Price’s petitions were referred for an initial recommendation to a

magistrate judge w ho, in two detailed opinions totaling forty-three pages,

recommended to the district court either that it deny each claim on the merits or

find it to be procedurally defaulted.

B

Here, the procedural history of the cases before us becomes tangled. In

response to the magistrate judge’s report and recommendation in 07-1088, M r.

Price filed with the district court a notice of appeal seeking review not before the

district court (because of that court’s alleged “corrupt[ion]” and “bias”) but in

this court. The district court responded that, “in the interest of expediting

proceedings,” it would treat M r. Price’s “notice of appeal” as an objection to the

1 Namely M r. Price charged that (1) he was denied due process when the trial court failed to sustain his challenges to four jurors for cause; (2) he received ineffective assistance of appellate counsel; (3) he was denied due process and equal protection by the Colorado court system; (4) the trial court trenched on his right to confrontation; (5) Colorado’s rape shield law is unconstitutional and insufficient evidence existed to support the sexual assault conviction; (6) his Sixth Amendment rights were violated in that he did not knowingly and intelligently waive his right to counsel; (7) he received a sentence in violation of the Eighth Amendment; (8) he was denied due process at the sentencing hearing; and (9) he did not receive an impartial jury.

-3- magistrate judge’s recommendation. The district court then proceeded to deny

that objection and adopt the magistrate judge’s report.

By contrast, in 07-1141, M r. Price filed a document purporting to be an

objection to the magistrate judge’s report, citing 28 U.S.C. § 636(b)(1)(C) and

Fed. R. Civ. P. 72(b); that document, however, largely confined itself to

inveighing against “lack luster judges” who should be “debench[ed].” This time,

the district court seems to have treated M r. Price’s filing as a nullity, indicating

its belief that “no party has objected to the recommendation” of the magistrate

judge, but adding that it had conducted a de novo review of the record before

accepting and adopting the report.

M r. Price then applied for a COA in the district court for each of his

petitions, both of which the court denied, ruling that M r. Price failed to make a

“substantial show ing of the denial of a constitutional right.” M r. Price also

applied to the district court for leave to appeal in forma pauperis, which the

district court also denied in both cases, finding in one (07-1141) that the motion

was deficient for failure to submit a certified trust account statement, and finding

in the other (07-1088), pursuant to 28 U.S.C. § 1915(a)(3), that the appeal was

“not taken in good faith because Applicant has not shown the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.”

C

-4- The complex procedural knot tightened after M r. Price filed the functional

equivalent of notices of appeal, 2 and did so in a timely manner. This court, sua

sponte, issued a show cause order in 07-1141 (but not in 07-1088), asking the

parties whether that matter should be dismissed on the basis that M r. Price failed

to object to the magistrate judge’s report and recommendation and thereby waived

appellate review. M r. Price responded by pointing to the fact that the district

court treated his notice of appeal in 07-1088 as an objection to the magistrate

judge’s report in that case. He might also have pointed to the fact that his filing

in 07-1141 actually cited the correct statutory- and rule-based provisions for

challenging magistrate judges’ reports in district courts. In their filing,

respondents focused less on the form of M r. Price’s submission and the district

court’s response and more on its substance, noting that, rather than discuss any

2 M r. Price filed a notice of appeal in 07-1141 after the district court’s order accepting the magistrate judge’s recommendation, but before entry of the final judgment. This notice of appeal is treated as filed on the date of and after entry of the final judgment. Fed. R. App. P. 4(a)(2). In 07-1088, M r. Price filed a notice of appeal after entry of the magistrate judge’s recommendation, which was not a final appealable decision, but before the district court’s order. After the district court entered an order and final judgment adopting the m agistrate’s recommendation, M r. Price filed a “motion and affidavit for leave to proceed on appeal” within 30 days, and this may be construed as the functional equivalent of a timely notice of appeal. See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.”); Rodgers v. Wyo. Atty. Gen., 205 F.3d 1201, 1204 n.3 (10th Cir. 2000) (listing documents construed as equivalents of notices of appeal), overruled on other grounds by M oore v. M arr, 254 F.3d 1235, 1239 (10th Cir. 2001).

-5- specific legal deficiency in the magistrate judge’s report, it simply attacked

various judges personally. This, respondents argued, is insufficient to preserve an

issue for appellate review .

II

It is settled law in this circuit that, in order to preserve an objection to a

magistrate judge’s report for appellate review , the appellant must make a “timely

and specific” objection in the district court. Soliz v. Chater, 82 F.3d 373, 375

(10th Cir. 1996). Indeed, this court has adopted what has been described as a

“firm waiver rule” in this regard. M oore v. United States, 950 F.2d 656, 659

(10th Cir. 1991). At the same time, because M r. Price has proceeded pro se

throughout these proceedings, we review and measure his filings against this rule

with liberality. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007); Andrews v.

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).

W ith these standards in mind, we do not hesitate to conclude that M r. Price

did file timely objections in the district court in both 07-1088 and 07-1141. In

both matters, M r. Price put the district court on notice of his dissatisfaction with

the magistrate judge’s conclusions. To be sure, in 07-1088 M r. Price captioned

his pleading as a notice of appeal, but the district court was able to discern M r.

Price’s intention and solicitously treated M r. Price’s pro se filing as the requisite

objection. In 07-1141, M r. Price clearly cited the applicable statute and rule for

challenging magistrate judges’ reports in district court.

-6- Yet, while we conclude that M r. Price did file timely objections sufficient

to preserve appellate review, his objections, with one exception, fall so short of

our requirement of specificity that we cannot help but take notice. In both cases,

M r. Price plainly registered his dissatisfaction with the magistrate judge’s

recommendations. But, rather than identify any issue of law or fact which he

contends was erroneously handled by the magistrate judge, M r. Price devoted the

bulk of his filings in both matters to inveighing against the judges handling his

matters, seeking an end to the “corruption” of the courts, a change of venue to

review his claims, and the appointment of a special judge to handle his claims.

Even viewing these pro se pleadings with the generosity that is their due, we do

not see how they come close to satisfying our requirement that an objection to a

magistrate judge’s report be made with specificity. See, e.g., Zum walt v. Astrue,

220 Fed. Appx. 770, 777-78 (10th Cir. 2007) (holding a one-sentence conclusory

objection to an issue in the magistrate’s recommendation insufficient to preserve

that issue for appeal); Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190

(10th Cir. 1999) (holding an argument waived on appeal for failure to raise the

issue in objection to the magistrate’s recommendation).

The single error which M r. Price did identify with specificity (in 07-1141)

is the assertion that the magistrate judge violated his constitutional rights by

virtue of being biased against him and thus failing to follow the direction this

court gave in Price v. Reid, 161 Fed. Appx. 773 (10th Cir. 2006). In order to

-7- obtain a COA on this or any issue, M r. Price must make “a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong,” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). In Price,

we reversed the district court’s dismissal of M r. Price’s Section 2254 petition

concerning his 1990 convictions for failure to file a well-pled petition, holding

that M r. Price’s allegations were indeed sufficient to comply with the

requirements of Fed. R. Civ. P. 8. Price, 161 Fed. Appx. at 774. W e remanded

the case for further proceedings consistent with that decision, and the magistrate

judge’s report and recommendation in 07-1141 complies in full with our decision,

considering M r. Price’s petition on its merits as we requested and doing so in

great detail w ithout a trace of bias or animus apparent.

III

Having found that, with one exception, M r. Price failed to preserve for

appellate review specific objections to the magistrate judge’s reports, it

nonetheless remains our office to review the record for plain error. For even

having failed to preserve a particular issue for appellate review, and thus without

meaningful briefing from the parties, under our precedents M r. Price, as a pro se

litigant, is still entitled to our examination of his cases for such error. M orales-

Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005). Plain error occurs when

there is (1) error (2) that is plain, which (3) affects substantial rights, and which

-8- (4) seriously affects the integrity, or public reputation of judicial proceedings. Id.

at 1122-23.

W e have reviewed the records of both 07-1088 and 07-1141 and can discern

no error, let alone plain error, in their disposition sufficient to warrant the

issuance of a CO A. Indeed, the magistrate judge’s two detailed reports, adopted

by the district court, leave little room for improvement and deal with each of M r.

Price’s claims with care. W e do not find any portion of them debatable or wrong.

Finally, because M r. Price failed to submit a certified account statement

w ithin the time extension given by the district court in one case (07-1141) and w e

agree with the district court assessment in the other case (07-1088) that an appeal

would lack any good faith basis, we find that M r. Price fails to satisfy established

legal standards for proceeding in form a pauperis. See 28 U.S.C. § 1915(a)(2),

(3). Accordingly, M r. Price’s applications for COA and motions for leave to

proceed in form a pauperis are denied and his appeal is dismissed.

ENTERED FOR THE COURT

Neil M . Gorsuch Circuit Judge

-9-