                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                             June 8, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DAVID BRIAN MORGAN,

      Petitioner - Appellant,

v.                                                            No. 16-6048
                                                       (D.C. No. 5:15-CV-01279-R)
                                                              (W.D. Okla.)
CARL BEAR, Warden,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Oklahoma state prisoner David Morgan, proceeding pro se, seeks a certificate of

appealability (COA) and permission to proceed in forma pauperis (ifp). Exercising

jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss this matter.

                                   I. BACKGROUND

       Morgan I - In April 2014, Mr. Morgan filed an application under 28 U.S.C. § 2254

to challenge his 2011 convictions in Oklahoma state court for kidnapping, rape, and other

charges (Morgan I). The district court dismissed the application as untimely, Morgan v.



       * This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Addison, No. CIV-14-337-R, 2014 WL 2197995, at *1 (W.D. Okla. May 27, 2014), this

court denied a certificate of appealability, Morgan v. Addison, 574 F. App’x 852 (10th

Cir. 2014), and the Supreme Court denied certiorari, Morgan v. Addison, 135 S. Ct. 1496

(2015).

      Morgan II - In July 2015, Mr. Morgan filed a habeas petition, which the

magistrate judge construed as seeking relief under §§ 28 U.S.C. 2241 and 2254 (Morgan

II). The district court dismissed the § 2241 claims as lacking merit and the § 2254 claims

as unauthorized second or successive claims under § 2244(b).

      Morgan III - In November 2015, Mr. Morgan filed a “Motion to be Heard under

the All Writs Act 28 USCA 1651(A),” which the clerk docketed as a § 2254 application

(Morgan III). The magistrate judge construed the filing as a motion under Federal Rule

of Civil Procedure 60(b) challenging the dismissal of Morgan II and determined it should

have been filed in that proceeding. The magistrate judge recommended that the motion

be stricken, that Morgan III be dismissed, and that Mr. Morgan be allowed to file his

Rule 60(b) motion in Morgan II. The magistrate judge’s Report and Recommendation

(R&R) advised Mr. Morgan that he could object to this recommendation and warned that

failure to do so would waive the right to appellate review. Mr. Morgan did not object to

the R&R, but he did file a “Motion 18 U.S.C. § 3626(a)(3)(B) Prisoner Release Orders.”

The district court denied the motion, adopted the magistrate judge’s recommendation,

and dismissed Morgan III. Rather than file a Rule 60(b) motion in Morgan II, Mr.

Morgan moved for leave to file one in Morgan III, which the district court denied.



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       Mr. Morgan now seeks a COA from this court to bring an appeal in Morgan III.

See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a

State court”). He also seeks leave to proceed ifp.

                                    II. DISCUSSION

       To obtain a COA, Mr. Morgan must make “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could debate

whether . . . 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.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).1

       The magistrate judge determined Mr. Morgan had filed a Rule 60(b) motion in the

wrong proceeding, that it should have been filed in Morgan II rather than Morgan III.

The R&R therefore recommended the motion be stricken, Morgan III be dismissed, and

Mr. Morgan be allowed to file the motion in Morgan II. Mr. Morgan has not shown that

these recommendations, adopted by the district court, denied him a constitutional right,

       1
         Under the “firm-waiver rule,” “failure to make timely objections to a magistrate
judge’s recommendations waives appellate review of both factual and legal questions.”
Allman v. Colvin, 813 F.3d 1326, 1329 (10th Cir. 2016) (brackets and quotations
omitted). “There are two exceptions when the firm waiver rule does not apply: when (1)
a pro se litigant has not been informed of the time period for objecting and the
consequences of failing to object, or when (2) the interests of justice require review.”
Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotations omitted). The
magistrate judge’s order advised Mr. Morgan of his right to object to the R&R by
December 16, 2015, and warned that “failure to timely object” waives the right to
appellate review, Morgan v. Bear, No. CIV-15-1279-R (W.D. Okla. Nov. 25, 2015), ECF
No. 5 at 5. We rely on grounds other than the firm-waiver rule to deny COA.


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nor can we discern any basis for such a showing. Reasonable jurists accordingly could

not debate the district court’s adoption of the R&R and consequent dismissal of Morgan

III, which precludes our granting a COA.

       In addition to adopting the R&R, the district court also denied Mr. Morgan’s

motion under 18 U.S.C. § 3626(a)(3)(B), which permits a three-judge federal court to

order release of a state prisoner under limited circumstances. No reasonable jurist could

debate the district court’s ruling. Among other reasons, see Brown v. Plata, 563 U.S. 493

(2011) (addressing requirements for a § 3626(a) action), this motion concerns Mr.

Morgan’s conditions of confinement and is not properly raised in a § 2254 application.

See Palma-Salazar, 677 F.3d 1031, 1035 (10th Cir. 2012) (stating “a prisoner who

challenges the conditions of his confinement must do so through a civil rights action”).

We deny COA on this issue.

                                  III. CONCLUSION

       We deny COA and ifp status and dismiss this matter.


                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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