Hines v. Hightower ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 25 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CLARENCE DWIGHT HINES,
Petitioner-Appellant,
v. No. 02-6227
(D.C. No. 01-CV-1439-F)
ELVIS HIGHTOWER, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before MURPHY and PORFILIO , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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This order and judgment is not binding precedent, except under the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.
Clarence Dwight Hines appeals from the district court’s orders dismissing
his habeas petition brought pursuant to 28 U.S.C. § 2241, and denying his motion
for relief under Fed. R. Civ. P. 60(b). We previously granted Hines a certificate
of appealability. We now dismiss his appeal from the order denying his § 2241
petition, and affirm the denial of relief under Rule 60(b).
In his petition, Hines complained that the defendant applied an amended
Oklahoma Department of Corrections policy concerning good time credits to him
in a way that violated the Due Process and Ex Post Facto Clauses of the United
States Constitution. Before the district court could decide his petition, Hines was
released from incarceration and began serving his term of probation.
On May 9, 2002, the magistrate judge assigned to this case filed a report
and recommendation that Hines’ petition be dismissed as moot because of his
release. The report informed Hines that he must file any objections by May 29,
2002, and that failure to do so would waive his right to appellate review. Hines
did not file any objections to the report and recommendation. On May 31, 2002,
the district court ordered the action dismissed without prejudice based on Hines’
failure to respond, and entered a separate judgment dismissing the action.
Nineteen days later, on June 19, 2002, Hines filed a Rule 60(b) motion,
seeking relief from the order of dismissal. The district court entered an order
denying the Rule 60(b) motion on June 24, 2002. On July 11, 2002, Hines filed
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his notice of appeal, attempting to appeal from the order denying Rule 60(b)
relief, as well as the earlier order of dismissal.
Hines’ attempt to appeal from the district court’s order of dismissal is
barred for two reasons: (1) he failed to file timely objections to the magistrate
judge’s report and recommendation, see Fottler v. United States , 73 F.3d 1064,
1065 (10th Cir. 1996), and (2) he did not file a notice of appeal within thirty days
of the order of dismissal, as required by Fed. R. App. P. 4(a)(1). 1
This leaves
only his appeal from the denial of his 60(b) motion for our consideration.
The district court properly denied the 60(b) motion, for two reasons. First,
the motion made no attempt to explain Hines’ failure to file a timely objection to
the magistrate judge’s recommendation. See United States v. One Parcel of Real
Property , 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party’s objections to the
magistrate judge’s report and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court. . . .”). Second, Hines
failed to establish in his 60(b) motion that he was entitled to relief from the
district court’s order dismissing his petition as moot.
1
Hines did file his Rule 60(b) motion within the thirty day period. A
Rule 60(b) motion, however, does not extend the time for filing a notice of appeal
unless it is filed within ten days after the entry of judgment. Fed. R. App. P.
4(a)(4)(A)(vi).
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Hines’ appeal from the district court’s order dismissing his § 2241 petition
is DISMISSED for lack of jurisdiction. His appeal from the district court’s order
denying his 60(b) motion is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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