Conley v. Mullins, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
August 30, 2007

Elisabeth A. Shumaker
Clerk of Court
D A RRYL R AY CO N LEY ,
Petitioner - A ppellant,
v.
M IKE M ULLIN, W arden,
No. 07-6046
(D.C. No. 05-CV-01381-R)
(W .D. Okla.)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Darryl Conley, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district courts denial of his 28
U.S.C. 2254 habeas petition. Because Conley waived his right to appeal by
failing to timely object to the magistrate judges recommendation, we DENY a
COA and DISM ISS.
Conley was convicted by a jury on one count each of first-degree rape, rape
by instrumentation, and sexual battery. At trial, the State presented testimony
from the victim that Conley had flagged her over to the side of the road while she
was driving home from church. Conley told the victim that something was wrong
with one of her tires and offered to help diagnose the supposed problem by riding
in her car. Conley then raped her. The State presented evidence that Conleys
DNA matched a swab taken from the victim at a hospital after the rape.
Based on Conleys status as a two-time prior felony offender, the state trial
court sentenced him to consecutive sentences of eighty years on each count.
Conleys subsequent appeals to the Oklahoma Court of Criminal Appeals and his
petition for state post-conviction relief were denied.
Conley then filed a timely habeas petition in the W estern District of
Oklahoma raising twelve separate grounds for relief. 1 Upon referral from the
district court, a magistrate judge issued an exhaustive 68-page Report and
Recommendation advising dismissal of Conleys habeas petition. Based on
Conleys failure to file objections to the Report and Recommendation despite
obtaining repeated extensions, the district court adopted the magistrates
recom mendation in full and dismissed the petition. Conley now seeks a COA
Conleys habeas petition claimed that: (1) His right to self-representation

w as violated; (2) H e had received ineffective assistance of trial counsel; (3) He
had received ineffective assistance of appellate counsel; (4) The trial court denied
him due process as the cumulative result of allegedly erroneous rulings at trial;
(5) The search warrant used to obtain his blood was invalid; (6) The State
withheld exculpatory evidence; (7) His Confrontation Clause rights were violated;
(8) The victims in-court identification of Conley was impermissibly suggestive;
(9) The evidence was insufficient to support a conviction; (10) He was arrested
and held without a w arrant for fifteen days in violation of the Fourth Amendment;
(11) The State used an evidentiary harpoon by allegedly suggesting that he had
committed a prior crime; and (12) The jury instructions w ere prejudicial.
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from this court to appeal the district courts judgment. 2 In his application for a
COA, he raises, in general terms, each of the same twelve claims presented to the
district court.
W e adhere to a firm waiver rule that precludes both legal and factual
review of issues addressed in a magistrate judges report and recommendation to
which a party has failed to raise timely objections. M oore v. United States, 950
F.2d 656, 659 (10th Cir. 1991). This rule applies to pro se applicants only when
the magistrate judge has provided clear notice that a failure to timely object will
waive that partys rights on appeal. Id.
In his Report and Recommendation, the magistrate judge unambiguously
advised [Conley] of his right to file an objection to [the] Report and
Recommendation . . . on or before October 24, 2006. Conley was further
advised that failure to file a timely objection . . . waives the right to appellate
review of both factual and legal issues contained herein. Given that Conley
failed to file objections by January 15, 2007 the last day of the final extension
Because the district court denied Conley a COA, he may not appeal the
district courts decision absent a grant of COA by this court. 28 U.S.C.
2253(c)(1)(A). A COA may be issued only if the applicant has made a
substantial showing of the denial of a constitutional right. 2253(c)(2). This
requires Conley to show that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further. Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
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granted by the district court he has waived his right to challenge the
magistrates recommendation on appeal.
Conley urges this court to nonetheless consider his arguments in the
interests of justice. Because the waiver rule is procedural rather than
jurisdictional, we may indeed decline to apply the rule in cases where the
interests of justice so dictate. M oore, 950 F.2d at 659. In reaching such a
determination this court has considered, among other factors, the w aiving partys
own responsibility for the failure to file objections. See W irsching v. Colorado,
360 F.3d 1191, 1197 (10th Cir. 2004).
In his memorandum addressing the waiver issue, Conley avers generally
that forces of nature prevented him from filing objections and that we therefore
should consider his failure to file excusable neglect. Conley apparently argues
that due to an ice storm, he had no access to prison administrative personnel
between January 12, 2007, and January 22, 2007, and thus could not file his
objection prior to the January 15, 2007, deadline. But as the district court noted
in declining to modify its order dismissing the petition,
[p]etitioners objection was originally due October 24, 2006.
Petitioner sought and was granted three extensions of time in which
to file his objection to the Report and Recommendation. . . .
Petitioners motion for an emergency extension of time was not even
m ailed until four days after his objection was due. Even now,
Petitioner does not present an objection and request leave to file it
out of time; rather, he asks for appointment of counsel to assist him
in preparing an objection.
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Given that Conley had already been granted 63 days beyond the original
20-day objection period, an ice storm does not justify his failure to file
timely objections.
W e also review the district courts decision for plain error. See
M orales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005). Plain
error occurs w hen there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of the judicial proceedings. Id. (quotations omitted).
Having carefully reviewed Conleys pleadings, the record on appeal, and
the magistrate judges thorough Report and Recommendation, we conclude
that the district court did not commit plain error when it determined that the
state court adjudication did not result[] in a decision that was contrary to,
or involve[] an unreasonable application of, clearly established federal law
or result[] in a decision that was based on an unreasonable determination
of the facts in light of evidence presented in the State court proceeding.
28 U.S.C. 2254(d).
For the reasons set forth above, Conleys request for a COA is
D EN IE D and his appeal is DISM ISSED. W e GR ANT his motion to
proceed in forma pauperis, and we DISM ISS his motion for appointment of
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counsel as moot.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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F I L E D

United States Court of Appeals

August 30, 2007

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

Darryl Conley, an O klahoma state prisoner proceeding pro se, seeks a

Conleys habeas petition claimed that: (1) His right to self-representation

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