32 ELR 20363 -- Self v. Callahan

Self v. Callahan

No. 00-4197 (UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT November 29, 2001)

ELR Digest

The court dismisses an individual's appeal of a district court order dismissing his motion to vacate two Resource Conservation and Recovery Act criminal convictions and adopting a magistrate judge's report and recommendation (R&R) to dismiss the individual's habeas corpus petition. The individual served his criminal conviction but later challenged the sentence due to ineffective assistance of counsel and newly discovered evidence. The court first holds, however, that the individual failed to object to the magistrate judge's R&R, and failure to make a timely objection to an R&R waives appellate review of both factual and legal questions. Further, although the individual represented himself before the magistrate, the magistrate clearly informed the individual of the consequences of his failure to object to the R&R. The court next holds that the interest of justice exception to waiver does not apply. The individual does not have sufficiently meritorious newly discovered evidence to overcome waiver, and the individual's ineffective assistance of counsel claims lacked specificity to show a reasonable probability of prejudice at trial.

The full text of this decision is available from ELR (7 pp., ELR Order No. L-422).

Counsel for Appellant
Lloyd R. Jones
Academy Legal Services
111 E. Broadway, Salt Lake City UT 84111
(801) 944-3459/530-1500

Counsel for Appellees
Wayne Dance, Ass't U.S. Attorney
U.S. Attorney's Office
185 South St., Ste. 400, Salt Lake City UT 84111
(801) 524-5682

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]