F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 3 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHRISTOPHER HILL,
Petitioner - Appellant,
v. No. 01-6080
(D.C. No. 00-CV-1513-W)
DAYTON J. POPPELL, Warden, (W.D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and 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This order and judgment is not binding precedent, except under the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.
Appellant Christopher Hill is before this court seeking a certificate of
appealability (COA) and requesting in forma pauperis status. Until Hill obtains
a COA, he cannot appeal the district court’s denial of his 28 U.S.C. § 2254
petition. See 28 U.S.C. § 2253(c)(1)(A).
After a jury trial, Hill was convicted in Oklahoma state court of one count
of illegal trafficking in controlled dangerous substances (crack cocaine) and
sentenced to ten years’ imprisonment and a fine of $25,000. On direct appeal, the
Oklahoma Court of Criminal Appeals rejected Hill’s argument that the evidence
was insufficient to support his conviction, and affirmed the judgment and
sentence of the trial court. Hill then filed the instant § 2254 habeas petition,
reasserting his insufficient evidence argument.
In a thorough report and recommendation, the magistrate judge reviewed
the trial evidence, then analyzed Hill’s application under the standard set out in
§ 2254(d). The magistrate judge recommended denial of the petition, in that the
asserted claim had been adjudicated on the merits and the state court adjudication
had not
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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Id. ; see also Williams v. Taylor , 529 U.S. 362, 379-91 (2000) (discussing and
explaining the double-pronged § 2254(d) standard).
When Hill failed to file objections to the magistrate judge’s
recommendation within the allotted time, the district court adopted the report and
recommendation, denied the petition for habeas corpus, and entered judgment in
favor of respondent. In his application for a COA, Hill asserts that he did not
object to the magistrate judge’s report and recommendation because he did not
receive a copy of it through the prison mail system. While this court has a firm
waiver rule, under which the failure to make timely objection to the magistrate’s
findings or recommendation waives appellate review of both legal and factual
issues, we need not apply the rule when the interests of justice dictate otherwise.
See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). We believe the
interests-of-justice exception is applicable here, and, accordingly, we turn to an
evaluation of the issues raised in Hill’s habeas petition.
Hill is not entitled to a COA unless he can make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the
district court rejected the asserted constitutional claims on the merits, Hill “must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong” or that the questions presented
deserve further proceedings. Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).
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This court has reviewed Hill’s combined request for a COA, motion to proceed in
forma pauperis, and appellate brief; the magistrate judge’s order; and the entire
record before us (including the transcript of Hill’s jury trial). That review
demonstrates that the issues raised in Hill’s § 2254 habeas petition are not
debatable among jurists of reason, subject to a different resolution on appeal, or
deserving of further proceedings. Hill’s request for a COA is DENIED for
substantially those reasons set forth in the magistrate judge’s order dated
January 16, 2001. The motion to proceed in forma pauperis is also DENIED,
and this appeal is DISMISSED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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