USCA11 Case: 19-10665 Date Filed: 11/23/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-10665
Non-Argument Calendar
____________________
JAMES E. PRICE, III,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:16-cv-62141-KMW
____________________
Before JILL PRYOR, BRASHER and DUBINA, Circuit Judges.
PER CURIAM:
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19-10665 Opinion of the Court 2
Appellant James Price, a counseled federal prisoner, appeals
the district court’s denial of his
28 U.S.C. § 2255 motion to vacate
his 156-month sentence, which the district court imposed for his
convictions for possessing and distributing child pornography. We
issued a certificate of appealability to determine whether the
district court violated Price’s Fifth Amendment right to due process
by adopting a magistrate judge’s report and recommendation (“R
& R”) and denying his § 2255 motion, before Price received a copy
of it. On appeal, Price argues that the district court violated his right
to due process because it denied his § 2255 motion before he raised
objections to the R & R. After a review of the record and reading
the parties’ briefs, we affirm the district court’s order denying
Price’s § 2255 motion.
I.
We apply a harmless error standard to claims that the district
court adopted a magistrate judge’s R & R prior to a habeas
petitioner receiving a copy and having an opportunity to object to
the R & R recommending denying habeas relief. See Braxton v.
Estelle,
641 F.2d 392, 397 (5th Cir. 1981). 1 An error is harmless if it
did not have a “substantial and injurious effect or influence” on the
outcome. See Brecht v. Abrahamson,
507 U.S. 619, 637,
113 S. Ct.
1710, 1722 (1993) (quotation omitted).
1 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we held that all decisions handed down prior to October 1, 1981, are binding
in the Eleventh Circuit.
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19-10665 Opinion of the Court 3
II.
We have held that, when a district court did not provide
sufficient time to object to an R & R denying habeas relief, the
error is harmless if the movant does not present any factual
objections that he would have raised below, if allowed, and the
district court could assess the merits of the petition on its face. See
Braxton,
641 F.2d at 397 (citing Rutledge v. Wainwright,
625 F.2d
1200, 1206 (5th Cir. 1980) (quotation marks omitted). We have
cited to Braxton more recently, outside the habeas context, in
holding that a district court’s failure to consider objections to an R
& R was harmless. See Haynes v. McCalla Raymer, LLC,
793 F.3d
1246, 1249-50 (11th Cir. 2015). We have also used this test in the
habeas context in two unpublished opinions. See Lawston v.
United States, 605 F. App’x 785, 787-88 (11th Cir. 2015) (addressing
the district court’s potential failure to give proper time to object,
we held that “[e]ven if we were to assume that the district court did
not give [the petitioner] the proper opportunity to object, the error
was harmless” because the petitioner failed to raise any factual
objections to the R & R on appeal); Saldana v. United States, 406 F.
App’x 413, 415-16 (11th Cir. 2010) (“As in Braxton, none of
Saldana’s arguments arose from a factual dispute and the district
judge could assess the merits of the [motion] from its face.”)
(quotation marks omitted).
Even assuming Price never received a copy of the R & R, the
district court’s error was harmless. The record shows that Price has
not identified factual or legal objections he would have raised to
the R & R, either before the district court or us. Further, the district
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19-10665 Opinion of the Court 4
court announced that it conducted an independent review of the
record and the relevant case law in its order adopting the very
thorough R & R. Accordingly, based on the aforementioned
reasons, we affirm the district court’s order adopting the R & R and
denying Price’s § 2255 motion.
AFFIRMED.
