Haney v. Addison, 175 F.3d 1217, 10th Cir. (1999)

F I L E D
United States Court of Appeals

Tenth Circuit
PUBLISH
MAY 10 1999
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
PATRICK FISHER
Clerk
RONALD JUNIOR HANEY,

Petitioner-Appellant,
v.
MIKE ADDISON,
No. 98-6255
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-97-1932-L)
Submitted on the briefs: *
Ronald Junior Haney, Pro Se.
W.A. Drew Edmondson, Attorney General of Oklahoma and Alecia A. George,
Assistant Attorney General of Oklahoma, Oklahoma City, Oklahoma, for
Respondent-Appellee.
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
EBEL, 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 cause therefore is
ordered submitted without oral argument.
*
Petitioner-Appellant Ronald Haney appeals the district courts denial of his

pro se 2254 petition for habeas relief as time-barred under the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. 2244(d). We exercise
jurisdiction under 28 U.S.C. 1291, grant a certificate of appealability, and
affirm.
BACKGROUND
In 1993, Haney pled guilty to four counts of making lewd or indecent
proposals to a minor under sixteen and one count of engaging in a lewd act with a
minor under sixteen; he also pled nolo contendere to one count of kidnaping. On
February 5, 1997, Haney filed this federal habeas action in the Western District of
Oklahoma challenging his conviction. On May 15, 1998, a federal magistrate
recommended granting the respondents motion to dismiss the habeas petition as
time-barred by the one-year limitations period imposed by AEDPA. The
magistrates recommendation concluded by stating:
The Petitioner is advised of his right to object to this Findings
and Recommendation on or before the 29th of May, 1998. Petitioner
is further advised that failure to file a timely objection to this
Findings and Recommendation waives his right to district court or
appellate review of both factual and legal issues.
Magistrates Recommendation at 6.
-2-
On June 1, 1998, instead of filing written objections to the magistrates

recommendation with the district court, Haney filed his objections in the form of
a notice of appeal with this court. On June 9, 1998, the district court noted that
Haney had not filed with it timely objections to the magistrates report, and so it
entered a final judgment adopting the magistrates recommendation and dismissed
Haneys 2254 petition with prejudice. On June 22, 1998, instead of filing an
amended notice of appeal, petitioner filed a pro se docketing statement with this
court in connection with his earlier appeal. Respondent argues that this court
lacks jurisdiction to entertain Haneys appeal, or in the alternative, that Haney
waived his right to appellate review.
DISCUSSION
Jurisdiction
Absent both designation by the district court and consent of the parties, a
magistrates recommendation is not a final appealable decision under 28 U.S.C.
1291. See 28 U.S.C. 636(c); Colorado Bldg. & Constr. Trades Council v.
Andersen Constr., 879 F.2d 809, 811 (10th Cir. 1989). Haneys June 1, 1998
Notice of Appeal to this court was therefore premature. Once the district court
issued its final order on June 9, 1998, Haney did not file an amended notice of
appeal; however, he did file a pro se docketing statement with our court within
the 30-day period following the district courts final order as required by Fed. R.
-3-
App. P. 4(a)(1). We have, in the past, permitted the filing of a pro se docketing
statement to serve as the functional equivalent of a notice of appeal. See Mason v.
Hutton, No. 97-1327, 1998 WL 161151, **1 & n.1 (10th Cir. Mar. 31, 1998)
(unpublished decision) (citing Smith v. Barry, 502 U.S. 244, 248-49 (1992)).
While we strongly discourage this practice, we conclude that Haney filed a timely
notice of appeal of the district courts final order, and therefore that we have
jurisdiction under 28 U.S.C. 1291.
Waiver
Respondent contends that Haney waived his right to appellate review by
failing to file objections to the magistrates report with the district court. See
Niehaus v. Kansas Bar Assn, 793 F.2d 1159, 1164-65 (10th Cir. 1986).
In Moore v. United States, 950 F.2d 656 (10th Cir. 1991), we declined to
apply the waiver rule to a pro se litigants failure to object when the magistrates
order did not apprise the pro se litigant of the consequences of a failure to object
to the magistrates findings and recommendations. See id. at 659. Here, the
magistrates recommendation advised Haney of the time limit for filing
objections, and informed him of the consequences of failing to object. However,
it failed to inform him of the proper place for filing his objections, and also failed
to cite the applicable statute, see 28 U.S.C. 636(b), or rule, see Fed. R. Civ. P.
72(b). The non-specific language of the magistrates recommendation supports
-4-
Haneys contention that he believed he was taking the appropriate action by filing
his objections with the court of appeals in the nature of an appeal. 1 Given
Haneys pro se prisoner status, we will not hold that he deliberately waived his
right to object to the magistrates recommendation where he was not advised
where to file his objections, and where he filed timely objections with the court of
appeals rather than the district court.
We note that, even had they been cited in the recommendation, 28 U.S.C.
636(b) and Fed. R. Civ. P. 72(a) do not clearly specify where ones objections
to the magistrates recommendation should be filed. Section 636(b) states merely
that, [w]ithin ten days after being served with a copy, any party may serve and
file written objections to such proposed findings and recommendations as
provided by rules of court. 28 U.S.C. 636(b). 2
We note that Haney filed his notice of appeal within the May 29, 1998
deadline for filing objections specified in the magistrates recommendation.
Although it was received at this court on June 1, 1998, Haneys pro se notice of
appeal is considered filed as of May 28, 1998, the date on the certificate of
service. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 275-76 (1988)
(inmates document considered filed when turned over to prison officials for
mailing).
1
In this case, reference to the local rule is similarly of little help in

determining where to file ones objections. Local Civil Rule 72.1 in the Western
District of Oklahoma provides:
(a) The objection to any order or report and recommendation entered
by a Magistrate Judge on any nonconsent matter shall be filed within
fifteen (15) days of the date the order or report and recommendation
is either pronounced in open court or filed, unless otherwise directed
(continued...)
2
-5-
Similarly, Fed. R. Civ. P. 72(b) provides: Within 10 days after being

served with a copy of the recommended disposition, a party may serve and file
specific objections to the proposed findings and recommendations.
Thus, in neither the statute nor the federal rule is it explicitly stated that the
filing should be with the clerk of the district court. Granted, the statute and rule
make clear that a district judge may accept, reject, or modify the magistrates
decision, see 28 U.S.C. 636(b); Fed. R. Civ. P. 72(b), and thus, one might
discern from this language that any objections to the recommendation should be
filed with the district court. However, given that the recommendation here failed
even to cite these provisions, and given that the statute and rule themselves
require some interpretation, we are not inclined to conclude that Haney, a prisoner
proceeding pro se, should have figured out on his own where to file his
objections. 3
(...continued)
by the Court.
(b) Unless the Court directs otherwise, a party shall not file a
response to the other partys objections to the proposed findings and
recommendations of the Magistrate Judge.
2
The better practice would be to include in the body of the recommendation

that timely objections should be filed with the clerk of the district court.
3
-6-
AEDPA Filing Deadlines

Nevertheless, we affirm the district courts dismissal of Haneys petition,
as it is time-barred by the one-year limitations period imposed by AEDPA, 28
U.S.C. 2244(d). In United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997),
we held that in cases such as this one, where a petitioners conviction became
final prior to the effective date of AEDPA, the petitioner is given a grace period
of one year from the April 24, 1996 effective date of the Act -- or until April 23,
1997 -- to file a federal habeas petition. See id. at 745. Under 2244(d)(2), the
one-year limitations period under AEDPA is tolled during the time any properly
filed application for state collateral review is pending. Haney relies on Simmonds
and 2244(d)(2) to argue that because his application for state post-conviction
relief, filed February 5, 1997, was pending until April 28, 1997, the one-year
grace period under Simmonds did not start to run until April 28, 1997 at the
conclusion of his state collateral proceedings. As a result, he contends that his
federal habeas petition, filed December 3, 1997, fell within the one-year grace
period. We disagree.
Under Simmonds, Haney had until April 23, 1997 to file his federal habeas
petition. Haney filed his application for state post conviction relief on February
5, 1997, which stopped the running of the one-year grace period with only 78 days
remaining. The grace period began to run again on April 28, 1997, when Haneys
-7-
state post conviction relief was finally denied. Thus, Haney had 78 days from
that date, or until July 15, 1997, to file his 2254 petition. Haney did not file his
petition until December 3, 1997. His petition was therefore untimely.
CONCLUSION
The judgment of the district court is AFFIRMED. Petitioners motion for
leave to proceed in forma pauperis is DENIED.
-8-

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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

RONALD JUNIOR HANEY,

Petitioner-Appellant Ronald Haney appeals the district courts denial of his

On June 1, 1998, instead of filing written objections to the magistrates

In this case, reference to the local rule is similarly of little help in

Similarly, Fed. R. Civ. P. 72(b) provides: Within 10 days after being

The better practice would be to include in the body of the recommendation

AEDPA Filing Deadlines

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