Evans v. Andraschko

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 28 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
SEAN L. EVANS,
Petitioner - Appellant,
No. 02-3432
v. (D.C. No. 02-CV-3051-RDR)
(D. Kansas)
STEVEN ANDRASCHKO, Colonel,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, 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This order and judgment is not binding precedent except under the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 Sean Evans, a military prisoner appearing pro se, 1 seeks review
of the district court’s denial of his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241. 2 We affirm.
Mr. Evans pled guilty to raping and committing indecent acts with his
twelve-year-old daughter in violation of the Uniform Code of Military Justice.
He was sentenced to fifteen years confinement (confinement in excess of thirteen
years was suspended for a period of thirteen years), a dishonorable discharge,
forfeiture of all pay and allowances, and reduction to grade Private E-1. Raising
various claims, Mr. Evans appealed his conviction to the United States Army
Court of Criminal Appeals, which affirmed his conviction. Subsequently, the
United States Court of Appeals for the Armed Forces denied his petition for
review.
Mr. Evans, acting pro se, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 with the United States District Court for the District
of Kansas, claiming: (1) the sentence suspension provisions were unclear; (2) the
trial judge’s inquiry into the factual basis for his guilty plea was insufficiently
penetrating, particularly as to inconsistent matters, and (3) his Fifth Amendment
1
We construe his pro se appeal liberally. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
2
A certificate of appealability is not necessary for a federal prisoner to
appeal a final order in a 28 U.S.C. § 2241 proceeding. See Montez v.Mckinna,
208 F.3d 862, 867 (10th Cir. 2000).
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right to remain silent was violated by the admission of what he claimed were
hearsay statements. The matter was referred to the Magistrate Judge, who
recommended the appeal be dismissed because Mr. Evans’s claims were properly
presented to the military courts, and his claims were given “full and fair
consideration.” Evans v. Andraschko, No. 02-3051-RDR (October 7, 2002,
Report and Recommendation at 4). The Report and Recommendation also stated:
Any party objecting to the recommended disposition may serve and
file with the clerk of the district court written objections within 10
days of service of this Report and Recommendation. Any objection
filed must specify the parts of the Report and Recommendation to
which objections are made, and set forth the basis for such
objections. Failure to file timely objections waives appellate review
of both factual and legal questions.
Id. at 4-5 (citations omitted) (emphasis in original). No objections were filed.
The district court adopted the Magistrate’s Report and Recommendation and
denied habeas relief.
After Mr. Evans filed his appeal in this Court, we issued a Show Cause
Order requiring him to discuss whether his failure to file written objections to the
Magistrate’s Report and Recommendation waived appellate review of both factual
and legal issues. He submitted his brief, but ignored our instructions to address
this issue.
We have adopted a firm waiver rule, which “provides that the failure to
make timely objection to the magistrate’s findings or recommendations waives
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appellate review of both factual and legal questions.” Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991). “This remains true for pro se litigants if the
plaintiff was properly informed of the consequences of his failure to object. We
may make an exception to this rule, however, where the interests of justice so
require.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996) (citing
Moore, 950 F.2d at 659).
Here, Mr. Evans was properly, and quite specifically, notified in the
Magistrate Judge’s Report and Recommendation of the consequences of failing to
object. Mr. Evans did not object; thus, he has waived appellate review of these
issues. Further, the interests of justice do not require us to make an exception in
this case. 3
3
Had appellate review not been waived we would still affirm. It is well
accepted that review of a habeas petition filed by a military prisoner is proper, but
such review is very narrow. Lips v. Commandant, United States Disciplinary
Barracks, 997 F.2d 808, 811 (10th Cir. 1993) (citing Burns v. Wilson, 346 U.S.
137, 139 (1953)), cert. denied, 510 U.S. 1091 (1994). We review such claims if
the issues raised were not given full and fair consideration by the military courts.
See Burns, 346 U.S. at 142; Lips, 997 F.2d at 811; Watson v. McCotter, 782 F.2d
143, 144 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). Mr. Evans’s claims
were properly presented to the military courts and were given full and fair
consideration by those courts.
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Based upon the foregoing, we AFFIRM the denial of Mr. Evans’s petition
for a writ of habeas corpus and DISMISS his appeal.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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