F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 11 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FRANCIS LEON HILTERMAN,
Petitioner-Appellant,
v. No. 97-1196
(D.C. No. 96-K-1625)
ROBERT FURLONG and (D. Colo.)
ATTORNEY GENERAL FOR
THE STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , McKAY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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 Francis Leon Hilterman, a Colorado state prisoner proceeding
with retained counsel, appeals an order of the district court refusing to reconsider
its denial of Hilterman’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. We affirm.
BACKGROUND
Mr. Hilterman was convicted of seven felonies: violation of the Colorado
Organized Crime Control Act, see Colo. Rev. Stat. § 18-17-101 to 109; two
counts of theft by receiving stolen goods, see Colo. Rev. Stat. § 18-4-404;
two counts of possession of motor vehicles with altered vehicle identification
numbers, see Colo. Rev. Stat. § 18-4-409; and two counts of tampering with
a witness, see Colo. Rev. Stat. § 18-8-707. The state trial court adjudicated
Mr. Hilterman as a habitual criminal and sentenced him to life imprisonment.
See Colo. Rev. Stat. § 16-13-101(2). The Colorado Court of Appeals affirmed the
convictions and sentence; the Colorado Supreme Court denied certiorari.
Mr. Hilterman then sought habeas relief in district court, contending that
the evidence used against him was obtained as a result of an illegal search and
seizure, in violation of the Fourth Amendment, and that the imposition of a life
sentence was disproportionate to his offenses, in violation of the Eighth
Amendment. The matter was referred to a magistrate judge, see 28 U.S.C.
§ 636(b)(1)(B), who issued a written report recommending that the petition be
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denied. The report included a warning that failure to file written objections to the
proposed findings and recommendations within ten days after service would bar
both de novo determination by the district judge, see 28 U.S.C. § 636(b)(1)(9)(c),
and review of factual findings and legal conclusions by an appellate court, see
Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). 1
The report was served by mail on Mr. Hilterman’s counsel, a sole
practitioner, on March 24, 1997. At the time of service, the attorney was unaware
of the deadline for filing objections because he was away from his office for an
extended period. On April 8, 1997, the time for filing objections having lapsed,
the district court accepted and adopted the recommendation of the magistrate
judge for the reasons stated in the recommendation and dismissed the petition.
The entry of dismissal prompted a series of filings. On April 15,
Hilterman, through counsel, filed a “Motion to Retain Case on Docket and for
Expansion of Time for Response” which asked for additional time because
counsel “was in no position to have any knowledge whatsoever of the mail he was
receiving at his small, unstaffed office in Houston prior to his return.” First Am.
Appellant’s App. at 1-5. Additionally, Mr. Hilterman filed a pro se motion to
alter or amend judgment. Those two motions, filed within ten days after entry of
1
The report mistakenly stated that Mr. Hilterman was proceeding pro se. We
attach no legal significance to this error.
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judgment and therefore qualifying as tolling motions, see Grantham v. Ohio Cas.
Co. , 97 F.3d 434, 435 (10th Cir. 1996), were denied in orders entered April 16
and 18, respectively. As to the counseled motion, the district court determined
that “being a sole practitioner with no office staff was not sufficient grounds to
modify established rules of procedure and time limitations and that the remaining
allegations in the motion were without merit or authority.” First Am. Appellant’s
App. at 21.
On May 2, Mr. Hilterman, through counsel, filed a motion urging
reconsideration of the court’s April 16 order. In an order entered May 6, the
district court denied the motion. Mr. Hilterman, through counsel, filed a notice
of appeal from the denial of reconsideration on May 28. 2
JURISDICTION
We must first address the jurisdictional issues raised by this appeal. The
notice of appeal was filed more than thirty days after entry of judgment and more
than thirty days after the denial of the tolling motions. We have no jurisdiction
to review the merits of the underlying judgment entered on the habeas petition.
See Fed. R. App. P. 4(a).
2
On June 6, Mr. Hilterman filed a pro se notice of appeal.
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Mr. Hilterman, however, did appeal within thirty days of the district court’s
order denying his motion for reconsideration, which may be construed as a motion
for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. We have jurisdiction to review the order denying this motion.
See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991).
DISCUSSION
Essentially, Mr. Hilterman argues that the district court erred in refusing to
grant his motion for relief from judgment and enlargement of time, based on
excusable neglect. See Fed. R. Civ. P. 60(b)(1) (permitting a court to provide
relief from judgment in instances of excusable neglect); Fed. R. Civ. P. 6(b)
(requiring a showing that a “failure to act was the result of excusable neglect”
in a motion for enlargement of time made after expiration of the applicable
deadline). This court reviews a district court’s decision to deny either type of
motion under an abuse of discretion standard. See Stubblefield v. Windsor
Capital Group , 74 F.3d 990, 994 (10th Cir. 1996) (concerning Rule 60(b));
Buchanan v. Sherrill , 51 F.3d 227, 228 (10th Cir. 1995) (concerning Rule 6(b)).
An abuse of discretion is “a judicial action which is arbitrary, capricious, or
whimsical.” Pelican Prod. Corp. v. Marino , 893 F.2d 1143, 1146 (10th Cir.
1990).
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A finding of excusable neglect is dependent “on the facts of each case
in which the question arises.” Buckley v. United States , 382 F.2d 611, 614
(10th Cir. 1967). Fault in the delay is a “very important factor–perhaps the most
important single factor–in determining whether neglect is excusable.” City of
Chanute v. Williams Natural Gas Co. , 31 F.3d 1041, 1046 (10th Cir. 1994).
“Ignorance or carelessness of an attorney is generally not cognizable under
Fed. R. Civ. P. 60(b).” Robinson v. Armontrout , 8 F.3d 6, 7 (8th Cir. 1993)
(quotations omitted). Moreover, “when a party asserts an excusable failure to
comply with procedural requirements, we have often imposed an additional
requirement . . . that the party demonstrate that his or her claim is ‘meritorious.’”
Cashner v. Freedom Stores, Inc. , 98 F.3d 572, 578 n.2 (10th Cir. 1996) (quoting
Otoe County Nat’l Bank v. W & P Trucking, Inc. , 754 F.2d 881, 883 (10th Cir.
1985) (further citation omitted)).
We have reviewed the entire record, including Mr. Hilterman’s pro se
filings. The district court’s determination that it was inexcusable for a sole
practitioner to leave a law office for an extended period without arranging for
the monitoring of mail is not arbitrary, capricious, or whimsical. In addition,
Mr. Hilterman has not demonstrated the existence of compelling objections to
the recommendation of the magistrate judge. Under the circumstances shown,
the district court did not abuse its discretion in denying the motion to reconsider.
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For the reasons stated above, the judgment of the United States District
Court for the District of Colorado is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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