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This order is not binding precedent except under the doctrines of law of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
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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.
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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
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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).
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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.
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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
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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
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(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
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