                              PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 17-1832
                   _____________

                  JANINE M. ORIE,
                             Appellant

                          v.

  DISTRICT ATTORNEY ALLEGHENY COUNTY;
             FRANK J. SCHERER
              _______________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
               (D.C. No. 2-16-cv-0233)
        District Judge: Hon. Mark R. Hornak
                  _______________

                      ARGUED
                     June 5, 2019

Before: JORDAN, BIBAS, and MATEY, Circuit Judges.

              (Filed: November 6, 2019)
                  _______________
James E. DePasquale [ARGUED]
310 Grant Street – Ste. 1302
Pittsburgh, PA 15219
      Counsel for Appellant

Ronald M. Wabby, Jr. [ARGUED]
Office of the District Attorney of Allegheny County
436 Grant Street
Pittsburgh, PA 15219
      Counsel for Appellees
                       _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       In this case, Janine M. Orie asks us to excuse her failure
to object to a Magistrate Judge’s Report & Recommendation
(“R&R”). The R&R was ultimately adopted by the District
Court and prompted the dismissal of her petition for a writ of
habeas corpus. Specifically, Janine 1 urges us to conclude that
the District Court should have granted her motion under
Federal Rule of Civil Procedure 60(b)(1) to allow her to file
objections to the R&R because her earlier neglect was
excusable. She further asks us to hold that the proper standard
of review of the R&R is de novo because the District Court
reviewed it de novo. Of course, she also asserts that the R&R


       1
        Since this case involves discussion of three sisters with
the name Orie, we use their first names for ease of reference,
intending neither disrespect nor any indication of familiarity.




                               2
reached the wrong conclusion. We think otherwise and will
affirm.

I.     BACKGROUND 2

        Janine worked as a secretary in the judicial chambers of
her sister Joan Orie Melvin, who, during the period relevant
here, was a judge on the Superior Court of Pennsylvania. In
April 2010, Janine was charged with a variety of crimes “based
upon allegations that she conspired with another of her sisters,
then State Senator Jane Clare Orie …, to divert the services of
Jane[’s] … legislative staff for the benefit of [Joan’s] 2009
political campaign for a seat as a Justice on the Supreme Court
of Pennsylvania” (the “2010 charges”). (App. at 328.) The
2010 charges resulted in a trial, which ended in a mistrial.

       In 2011, before Janine was retried on the 2010 charges,
prosecutors filed new charges against her (the “2011 charges”).
The 2011 charges alleged another series of crimes, this time
relating to activities in Joan’s judicial chambers during the
2009 political campaign for the Supreme Court and a 2003
campaign for that same office.

      Janine later faced in a single trial both the 2010 and
2011 charges. She was found guilty. 3 On the 2010 charges,


       2
          We draw on the Superior Court of Pennsylvania’s
description of the relevant events for background facts that are
not in dispute.
       3
        On the 2010 charges, Janine was convicted of theft of
services and conspiracy to commit theft of services. On the
2011 charges, she was convicted of theft of services,




                               3
she was sentenced to “[a] determination of guilty without
further penalty” for all counts of conviction. (App. at 182.) On
the 2011 charges, she was sentenced to one year “in a county
intermediate punishment program” for some counts and to one
year of probation for other counts. (App. at 181.) 4

       She appealed, and her convictions and sentences were
generally affirmed. 5 She then filed a petition for a writ of
habeas corpus in the District Court, arguing that her retrial on
the 2010 charges should have been barred by the Double
Jeopardy Clause of the Constitution. The case was referred to
a Magistrate Judge, who wrote the R&R now in question,
recommending dismissal of the petition. The R&R concluded
that Janine was not “in custody” for purposes of establishing
habeas jurisdiction because she challenged only the



misapplication of entrusted property, tampering with or
fabricating evidence, and solicitation to tamper with or
fabricate physical evidence.
       4
          Janine was also ordered to pay restitution to the
Pennsylvania Senate and to the Commonwealth on behalf of
the Superior Court. At sentencing, “the trial court purported to
impose an additional condition on [Janine], namely that she
write letters of apology[,]” including to the members of Jane’s
legislative staff who were affected by the 2010 crimes, but that
condition was not in the written sentencing orders. (App. at
331.)
       5
        The Superior Court decided, however, that Janine did
not have to write the apology letters because that requirement
was not included in the written sentencing orders.




                               4
convictions on the 2010 charges but had received no penalty
for them.

       Although the R&R advised the parties that they had 14
days to file any objections, no objections were filed, and the
District Court adopted the R&R. The Court’s order said, in
relevant part:

       AND NOW, this 30th day of June, 2016, after
       the petitioner, Janine M. Orie, filed a petition for
       a writ of habeas corpus, and after a Report and
       Recommendation was filed by the United States
       Magistrate Judge granting the parties a period of
       time after being served with a copy to file written
       objections thereto, and no objections having
       been filed, and upon independent review of the
       petition and the record and upon consideration of
       the     Magistrate     Judge’s      Report      and
       Recommendation, which is adopted as the
       opinion of this Court,
       IT IS ORDERED that the petition for a writ of
       habeas corpus filed by petitioner is dismissed[.]

(App. at 23 (citations omitted).)

        About two weeks later, however, Janine filed a motion
pursuant to Rule 60(b)(1) on the ground that there had been a
communications mix-up that prevented her lawyer from filing
objections. 6 The lawyer provided an explanation, saying he

       6
         Rule 60(b)(1) provides that, “[o]n motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for … mistake,




                                5
had given the R&R to his legal assistant, assuming that the
assistant would send the R&R to Janine and that Janine would
inform him if she wanted to file objections. The legal assistant
did not forward the R&R, however, and the lawyer never
followed up with Janine. Janine learned of the District Court’s
dismissal of her habeas petition by reading about it in the news.
She then immediately contacted her lawyer “to ask if
objections and a motion for reconsideration could be filed.”
(App. at 25.) Objections to the R&R were attached to the Rule
60(b)(1) motion and filed with the Court.

        The District Court denied the motion. It decided that
Janine did not meet the standard for Rule 60(b)(1) relief and
that, in any event, her objections failed on the merits. This
timely appeal followed.        We granted a certificate of
appealability as to whether the District Court erred in denying
relief under Rule 60(b) and in dismissing the petition for lack
of jurisdiction. We also directed the parties to address how
Janine’s failure to timely object to the R&R might affect our
standard of review.

II.    DISCUSSION 7

        Janine makes three arguments on appeal. First, she
insists that she qualifies for Rule 60(b)(1) relief. Second, she


inadvertence, surprise, or excusable neglect[.]” Fed. R. Civ. P.
60(b)(1).
       7
         As explained herein, the District Court lacked habeas
jurisdiction. But, the Court possessed jurisdiction over the
Rule 60(b)(1) motion because “a federal court always has
jurisdiction to determine its jurisdiction.” Zambelli Fireworks




                               6
asserts that we should review the R&R de novo. Third and
finally, she argues that the District Court erred in dismissing
her petition for lack of jurisdiction because she was “in
custody.” We disagree on each point.

       A.     The Petitioner Is Not Entitled to Rule 60(b)(1)
              Relief

        The first issue is whether the District Court should have
granted Janine’s Rule 60(b)(1) motion. Under Rule 60(b)(1),
courts may “grant a party relief from a final judgment based
upon, inter alia, ‘excusable neglect.’” Nara v. Frank, 488 F.3d
187, 193 (3d Cir. 2007) (quoting Fed. R. Civ. P. 60(b)(1)).
“The test for ‘excusable neglect’ is equitable, and requires us
to weigh the ‘totality of the circumstances.’” Id. at 193-94
(citation omitted). Courts are to consider the following factors:
“1) the danger of prejudice to the other party; 2) the length of
the delay and its potential impact on judicial proceedings;
3) the reason for the delay—and whether it was within the
movant’s control; and 4) whether the movant acted in good
faith.” Id. at 194. We review a Rule 60(b)(1) decision for
abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d 244,
251 (3d Cir. 2008).

      Janine argues that there is excusable neglect here
because her “counsel, a sole practitioner, prepared and filed the
Motion for Reconsideration and simultaneously filed
Objections to the R&R within 13 days of his communication
with [her] after she read about the dismissal in the
newspapers.” (Opening Br. at 19.) She says that her counsel


Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010). We have
jurisdiction under 28 U.S.C. §§ 2253 and 1291.




                               7
filed the motion and objections within what would have been
the allowable period for filing objections had he started
working on them immediately after the R&R issued, and that
he did so in order “to mitigate the late filing and notify the
District Court that [she] had a meritorious basis for
objecting[.]” (Reply Br. at 2.) Janine further asserts that “[t]he
failure to file timely objections did not prejudice the
Commonwealth; it had no impact on the efficient
administration of justice; and there was no bad faith on the part
of [herself] or counsel.” 8 (Opening Br. at 18.)

        Janine’s arguments fail in light of a clear statutory
directive and our decision in Nara v. Frank. The governing
habeas statute, 28 U.S.C. § 2254, states plainly that “[t]he
ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.”
28 U.S.C. § 2254(i). Thus, motions under Rule 60(b) that seek
relief based on “incompetent and ineffective representation”
during a proceeding under § 2254 are barred. Post v.
Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005) (quoting 28
U.S.C. § 2254(i)). Though couched in terms of excusable
neglect, Janine’s plea that we ignore her attorney’s (and hence
her) failure to timely respond to the R&R is exactly the kind of
relief foreclosed by the statute itself.




       8
         Janine additionally suggests that she was prejudiced
because she did not consent to the Magistrate Judge presiding
over her case. But the District Court here simply referred the
case to the Magistrate Judge for an R&R. Consent was not
required. Compare 28 U.S.C. § 636(b) with id. § 636(c).




                                8
       Even if, however, the clarity of that statute left room to
wonder whether Rule 60(b)(1) relief could be appropriate here,
our decision in Nara tells us it is not. There, a magistrate judge
wrote an R&R recommending that habeas relief be granted and
warning of the deadline for objecting. Nara, 488 F.3d at 193.
Neither side objected, so the district court adopted the R&R.
Id. “Over two weeks” after the district court did so and over
six weeks after the R&R was issued, the Commonwealth
sought Rule 60(b)(1) relief on the ground that “it never
received the R & R[.]” Id. at 193-94. We held that, despite
“no evidence the Commonwealth acted in bad faith[,]” its
“overall negligence in handling the matter preclude[d] us from
finding ‘excusable neglect.’” Id. at 194. We noted that the
Commonwealth attorneys were served with the R&R by first-
class mail; that they would have received electronic
notification of and access to the R&R if they had complied with
a standing order to register for the court’s electronic case
management system; and that “the Commonwealth failed to
respond to the District Court’s order for 17 days[,]” without
excuse, notwithstanding the “urgency” of its predicament. Id.
(emphasis in original).
       The neglect manifest here is, if anything, less forgivable
than that in Nara. 9 In all, Janine’s counsel waited more than

       9
          Janine suggests that, in Nara, there was prejudice to
the petitioner and “[t]ime was of the essence[.]” (Reply Br. at
5.) But while we recognized that prejudice is a factor in
deciding a Rule 60(b)(1) motion, we did not otherwise discuss
prejudice or apply it to the facts of that case. Nara, 488 F.3d
at 194. And, although we referred to “the urgency of the
situation,” that language related to the Commonwealth’s
failure to respond to the decisions against it. Id. at 193-94.




                                9
seven weeks to respond to the R&R. He knew an R&R had
been issued recommending dismissal, but he simply
“assum[ed]” that his legal assistant would send the R&R to
Janine “and that [Janine] would contact [him] if [she] wished
to file objections.” (App. at 24.) He “never attempted to
contact [Janine] directly” to make sure that she had no interest
in contesting the R&R and, instead, allowed the window for
filing objections to close. (App. at 24.) Furthermore, he only
took action after Janine learned of the District Court’s
dismissal of her case in the news. Even then, he did not file
anything with the Court for almost two weeks. The unhappy
consequence of those facts is that the “overall negligence in
handling the matter precludes us from finding ‘excusable
neglect.’” Nara, 488 F.3d at 194; cf. Mullin v. Balicki, 875
F.3d 140, 154 (3d Cir. 2017) (“It is well established that clients
must be held accountable for the acts and omissions of their
attorneys.” (internal quotation marks and citation omitted)).
The District Court thus properly denied Janine’s Rule 60(b)(1)
motion. 10




       10
         The strength of a party’s position may also be relevant
in deciding upon Rule 60(b)(1) relief. Cf. Mullin, 875 F.3d at
154 & n.48 (noting that, in some circumstances, a party may
be relieved of the consequences flowing from counsel’s
mistakes, based on a balancing of factors, including whether
the underlying claim has merit). As explained below, even if
we take that into account, it does not help Janine because she
does not have a meritorious position.




                               10
       B.     The Standard of Review Applicable to the
              R&R Is Plain Error

        The next question is what standard of review we should
apply in considering the merits of the R&R adopted by the
District Court. In general, “where a party fails to file timely
objections to a magistrate judge’s R & R in a habeas
proceeding, and the district court then adopts the R & R, we
will only review the R & R for plain error.” Nara, 488 F.3d at
194. There are, however, indications in our case law that we
may review an R&R de novo where “the district court elects to
exercise its power to review a magistrate’s report de novo[.]”
EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017)
(citation omitted) (emphasis omitted); see also Evans v. Sec’y
Pa. Dep’t of Corr., 645 F.3d 650, 657 (3d Cir. 2011) (“Once
the District Court independently reviewed the Magistrate
Judge’s R & R, the Commonwealth’s ‘previous failure to
object [became] irrelevant.’” (alteration in original) (citation
omitted)). Given that Janine failed to object to the R&R and
that Rule 60(b)(1) relief was properly denied, plain error would
seem to be the appropriate standard. Nevertheless, citing our
decision in Henderson v. Carlson, 812 F.2d 874 (3d Cir. 1987),
Janine argues that we should review the R&R de novo because
the District Court reviewed it de novo before adopting it. She’s
mistaken both as to what the District Court did and as to the
import of Henderson.

       To begin with, the District Court’s succinct order does
not show that it conducted a de novo review. It is better read
as simply noting the lack of objections and then adopting the
R&R. Given the absence of any independent reasoning by the
District Court, it seems clear that, while the Court no doubt
gave thoughtful consideration to the R&R and record, it did not




                              11
engage in de novo review and decision making. When it said
that it rendered its decision “upon independent review of the
petition and the record and upon consideration of the
Magistrate Judge’s Report and Recommendation” (App. at 23),
it was, we think, employing boilerplate language to assure the
parties that it had looked at the petition and record before
deciding to adopt the R&R; nothing more. 11 Cf. City of Long
Branch, 866 F.3d at 100 (observing that, even in the absence
of an objection, district courts must give “reasoned
consideration” to R&Rs (citation omitted)).

        Janine’s reliance on Henderson is also misplaced. We
held there that “the failure of a party to object to a magistrate’s
legal conclusions may result in the loss of the right to de novo
review in the district court—but not in the loss of the statutory
right to appellate review.” Id. at 878-79. We also said, in dicta
in a footnote, that, “when the district court elects to exercise its
power to review a magistrate’s report de novo, a party’s
previous failure to object becomes irrelevant” and that, “since
the district court conducted a de novo review even though no
objection was made, appellate review would arguably be
proper even if we were to adopt a waiver rule.” Id. at 878 n.4.
We concluded that the district court had performed a de novo
review because, “according to the district court’s order, the
magistrate’s report was adopted only after ‘independent review

       11
          In Evans v. Secretary Pennsylvania Department of
Corrections, we used the phrase “independently reviewed”
instead of “reviewed de novo.” Evans, 645 F.3d at 657;
Henderson, 812 F.2d at 878 n.4. In context, we meant
“reviewed de novo,” but we do not think that every use of the
phrase “independently reviewed” necessarily means “reviewed
de novo.”




                                12
of the entire record and applicable law.’” Id. (citation omitted).
But the Henderson footnote does not bind us with respect to
what is necessary to demonstrate that a district court has
engaged in de novo review, nor does it tell us what standard of
review we must employ on appeal even if there has been de
novo review in the district court.

        Henderson has an entirely different focus. It held, based
on extensive reasoning, that appellate review is appropriate
despite a party’s failure to object to an R&R. Id. at 877-79.
That is binding, and rightfully so. The Henderson footnote
simply added that, even if we had not reached the holding we
did in the text of the opinion, “appellate review would arguably
be proper” on the facts then at hand, given the district court’s
order. Id. at 878 n.4 (emphasis added). 12 We have never
adopted the Henderson footnote’s conclusion on what is
required to show that de novo review has occurred, although
we have cited the footnote in subsequent decisions. For
example, in Nara, we acknowledged the footnote in describing
and responding to an argument that we should review an R&R
de novo because the district court did so. 488 F.3d at 197. We
concluded, however, that there was “no indication the District
Court conducted an independent review of the entire record
and applicable law de novo.” Id. We did not have to decide
what would be enough if there were some indication.




        Thus, the footnote was “not necessary to our ultimate
       12

holding[,]” and “properly is classified as dictum.” In re
Friedman’s Inc., 738 F.3d 547, 552 (3d Cir. 2013) (internal
quotation marks and citation omitted).




                               13
       Likewise, in Evans, we cited the Henderson footnote in
concluding that, “[o]nce the District Court independently
reviewed the Magistrate Judge’s R & R, the Commonwealth’s
‘previous failure to object [became] irrelevant.’” 645 F.3d at
657 (second alteration in original) (quoting Henderson, 812
F.2d at 878 n.4). But, the district court in that case had
“squarely addressed” the point at issue. Id. It was clear that
there had been de novo review, so we had no occasion to assess
whether perfunctory language in an order, like that discussed
in the Henderson footnote, would necessarily be sufficient to
show there had been such review.

       Finally, in City of Long Branch, we cited the Henderson
footnote for the basic proposition that a party’s failure to object
to an R&R becomes irrelevant if the district court has reviewed
the R&R de novo. 866 F.3d at 100. How a party establishes
that de novo review has occurred was not, however, at issue in
the case. Id. at 100-02.

       In short, a party seeking to avoid the consequences of
failing to object to an R&R by proving that the district court
has reviewed de novo the matter at hand must point to
something more than boilerplate language in an order with no
independent reasoning. Nothing of that sort appears in the
record here. 13

       13
         Janine also emphasizes the fact that the District Court
considered her objections to the R&R on the merits in denying
her Rule 60(b)(1) motion. But that is irrelevant. We have
already concluded that the Court’s denial of Rule 60(b)(1)
relief was appropriate, which leaves for review only the order
adopting the R&R. It is the District Court’s approach in
adopting the R&R that affects our standard of review.




                                14
       Consequently, we will review the R&R for plain error.

       C.      The R&R Was Not Plainly Erroneous in
               Concluding that the Petitioner Was Not in
               Custody

       The final question is whether the R&R was plainly
erroneous in concluding that Janine was not in custody – and
therefore that habeas jurisdiction was lacking – because she
challenged only the 2010 charges, for which she received no
penalty. 14

       We perceive no plain error. In our recently-issued
decision resolving the habeas petition of Janine’s sister Jane,
we held that Jane was not in custody on counts for which she
received a sentence of “no further penalty” and, accordingly,
that we could not review her challenges to those counts. Here,
Janine only challenges counts of conviction for which she
received no further penalty, thus placing her case squarely in
line with Jane’s.

        Janine raises two sets of arguments in her effort to save
jurisdiction over her petition. First, she contends that she
received a “general sentence” on her 2010 and 2011 charges
because those charges, and the sentences she received on them,


       14
          On plain error review, Janine must show (1) there is
an error, (2) it is plain, (3) it affects substantial rights, and (4)
it “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” United States v. Olano, 507 U.S. 725,
732 (1993 (citation omitted); United States v. Payano, 930
F.3d 186, 192 (3d Cir. 2019) (“[The challenger] has the burden
of demonstrating that the four [plain error] factors are met.”).




                                 15
were factually and legally tied together, and, in addition, her
2010 charges resulted in collateral consequences. Second, she
argues that she is really challenging her 2011 charges directly.
According to Janine, joining her retrial on the 2010 charges
with her trial on the 2011 charges “caused prejudice and an
unfair trial.” (Opening Br. at 30.) 15

       Janine’s first set of arguments is unavailing. Her sister
Jane raised a similar argument that she received a “general
sentence,” but we rejected that since her sentencing order
imposed discrete sentences for each count of conviction and
sentences of no further penalty on the challenged counts. The
same is true here. The fact that Janine’s sentences may have
been related and all her charges were litigated in the same
proceedings does not establish that she was ever in custody for
the convictions on the 2010 charges. 16 See U.S. ex rel. Dessus

       15
          Janine also cites Garlotte v. Fordice, 515 U.S. 39
(1995), and Peyton v. Rowe, 391 U.S. 54 (1968), and suggests
that her sentences should be treated as if they were imposed
consecutively. Such a contention is unpersuasive because
those cases dealt with custodial sentences imposed
consecutively. Here, Janine received no custodial sentence
whatsoever on her 2010 charges.
       16
          In arguing that her sentences were interrelated, Janine
points to the fact that she was sentenced to write apology letters
to the Pennsylvania Senate staff and to pay restitution to the
Senate, all of whom were affected by the 2010 crimes. She
says that the apology letters were part of her sentence on the
2011 charges and that the Senate restitution was part of that
sentence. The Superior Court, however, concluded that Janine
was not actually sentenced to write the apology letters, so it is
not clear how they are relevant. Furthermore, although the trial




                               16
v. Pennsylvania, 452 F.2d 557, 558-59 & n.1 (3d Cir. 1971)
(concluding that a petitioner was not in custody to challenge a
particular conviction because the sentence for that conviction
was suspended, even though the petitioner received several
convictions emanating from the same criminal episode and
trial, the petitioner received lengthy sentences of imprisonment
on many of those convictions, and the sentence on the
challenged conviction was suspended). Nor are collateral
consequences enough to create custody. See Maleng v. Cook,
490 U.S. 488, 492 (1989) (per curiam) (“[O]nce the sentence
imposed for a conviction has completely expired, the collateral
consequences of that conviction are not themselves sufficient
to render an individual ‘in custody’ for the purposes of a habeas
attack upon it.”).

        As for Janine’s second line of argument, it fails because
nothing in the record indicates that she ever argued that she
was deprived of a fair trial on the ground that she was tried for
the 2010 and 2011 charges together, or that she otherwise
intended to mount a habeas challenge to her convictions on the
2011 charges, before now. Thus, it was hardly plain error for
the R&R to conclude that she was only raising a challenge to
her convictions on the 2010 charges. And, in any event, “[w]e
generally do not consider arguments raised for the first time on
appeal, and will not do so in this case.” Gardner v.
Grandolsky, 585 F.3d 786, 793 (3d Cir. 2009) (per curiam)
(citation omitted).


court’s restitution order did not specify which set of charges
the Senate restitution related to, nothing in the record indicates
that it related to the 2011 charges, and a common sense reading
of the record suggests that it related to the charges involving
the Senate: the 2010 charges.




                               17
III.   CONCLUSION

      For the foregoing reasons, we will affirm the District
Court’s orders denying Janine Orie’s Rule 60(b)(1) motion and
dismissing her habeas petition for lack of jurisdiction.




                             18
