FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 13, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DAVID BRIAN MORGAN,
Petitioner - Appellant,
and
ERNEST DRAPER; KENNETH
JOHNSON; CLEVE BILLINGS;
JONATHON GRAHAM; MARK
KERFOOT; STEVEN GLEN
CRADDOCK,
Petitioners,
v. No. 20-6021
(D.C. No. 5:19-CV-00929-R)
STATE OF OKLAHOMA; (W.D. Okla.)
DEPARTMENT OF CORRECTIONS,
Respondents - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
David Brian Morgan, proceeding pro se, has filed a combined opening brief
and request for a certificate of appealability (“COA”). Mr. Morgan seeks to appeal
from the district court’s decision dismissing his “Motion to File Writ of Mandamus
and Nunc Pro Tunc Judgment.” On the issue requiring a COA, we deny a COA. On
the issues that do not require a COA, we affirm the district court’s decision.
Mr. Morgan entered a guilty plea in Oklahoma state court to thirteen counts,
including rape, molestation, kidnapping, and weapons possession. He was sentenced
to life in prison. The district court dismissed his first § 2254 habeas petition as
untimely, and this court denied a COA. See Morgan v. Addison, 574 F. App’x 852,
852-53 (10th Cir. 2014). Since the dismissal of his first habeas petition, Mr. Morgan
has attempted to challenge his convictions in numerous filings. See R. at 43
(detailing history of post-conviction challenges). His most recent filing in October
2019 was under the guise of a mandamus petition. A magistrate judge reviewed the
filing and issued a report and recommendation.
The magistrate judge recommended that Mr. Morgan’s arguments challenging
the state court’s jurisdiction to convict him be treated as unauthorized successive
habeas claims and dismissed for lack of jurisdiction. He also noted that Mr. Morgan
had named several other parties to be included as petitioners in the lawsuit, but there
was no information about those individuals’ convictions beyond vague assertions that
their crimes occurred on Indian land. The magistrate judge therefore recommended
that those individuals be dismissed as petitioners, leaving Mr. Morgan as the sole
petitioner. The magistrate judge further recommended that, to the extent
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Mr. Morgan’s claims could be construed as asserting constitutional violations
pursuant to 42 U.S.C. § 1983, those claims should be dismissed for failure to a state
claim upon which relief could be granted. Finally, the magistrate judge
recommended that the court decline to assert supplemental jurisdiction over any state
law claims.
The magistrate judge concluded his report by advising Mr. Morgan of his right
to file an objection to the report and recommendation and informing him that the
failure to timely object would waive appellate review of the recommended ruling.
Mr. Morgan filed a timely objection to the report and recommendation. In his
objection, he noted the court’s ruling that “calling a habeas by a different name does
not circumvent the established law,” and he stated that he “agree[d] with the findings
of the U.S. District Court.” R. at 50. Mr. Morgan then proceeded to object to a
different order in which the court applied funds he intended to use for the filing fee in
this case to another case, calling it an illegal misappropriation of funds.
The district court reviewed de novo Mr. Morgan’s one specific objection to the
report and recommendation. The court noted that Mr. Morgan did not object to the
merits of the report and recommendation, but instead objected to another order
related to his failure to pay the filing fee. Concerning the fee issue, the court
explained: “$5.00 has been applied to the instant case. Plaintiff is therefore not in
default; his filing fee has been paid in full.” Id. at 58. The court adopted the report
and recommendation in its entirety and dismissed the petition because Mr. Morgan
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(1) did not file an objection to the merits, (2) did not seek an extension of time in
which to object to the merits, and (3) stated that he agreed with the court’s findings.
In his combined opening brief and application for a COA, Mr. Morgan argues
about the merits of his petition, asserting that his convictions and sentence are
invalid. He asks to be released from custody. He also contends that he is entitled to
compensatory and punitive damages.
Mr. Morgan waived his right to appellate review of the district court’s decision
to dismiss his petition because he failed to object to the magistrate judge’s
recommendation on resolving his petition. “[W]e have adopted a firm waiver rule
when a party fails to object to the findings and recommendations of the magistrate.”
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). If a party fails to make a
timely objection, he “waives appellate review of both factual and legal questions.”
Id. In addition, “a party’s objections to the magistrate judge’s report and
recommendation must be . . . specific to preserve an issue for . . . appellate review.”
United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).
The firm waiver rule does not apply when (1) a pro se litigant has not been
informed of the time period for objecting and the consequences of failing to object,
Moore, 950 F.2d at 659, or (2) the interests of justice require review, Wirsching v.
Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004). Neither of the exceptions applies in
this case. The magistrate judge specifically informed Mr. Morgan of the
consequences of his failure to object to the resolution of his petition, but he limited
his objection to the magistrate judge’s separate order about a fee issue. He did not
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file any objections to the magistrate judge’s report and recommendation on the merits
of his petition. A review of the record reveals no circumstances supporting the
application of the interests-of-justice exception. Thus, Mr. Morgan has waived
appellate review of the arguments he now seeks to raise related to the merits of his
petition. See Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir. 1996) (holding specific
appeal arguments not raised in objections to report and recommendation were
waived).
Accordingly, we deny a COA as to the dismissal of Mr. Morgan’s successive
habeas claims. We affirm the district court’s dismissal of Mr. Morgan’s § 1983 and
supplemental state law claims. We grant Mr. Morgan’s motion to proceed on appeal
in forma pauperis. 1 Mr. Morgan remains obligated to pay the filing fee in full.
Entered for the Court
Per Curiam
1
Mr. Morgan filed a supplemental brief on appeal challenging statements the
district court made in its order denying his motion to proceed in forma pauperis on
appeal (IFP) as to whether he paid a filing fee for an unrelated case in the United
States District Court for the District of Indiana. That issue is not properly before this
court because it does not involve the fee for the underlying district court case or this
appeal. To the extent Mr. Morgan seeks to challenge the district court’s denial of his
motion to proceed IFP on appeal, that challenge is moot because we are granting
Mr. Morgan’s motion.
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