                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JUN 30 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 NELSON O. DUARTE,

                Petitioner - Appellant,                   No. 98-1445
           v.                                            (D. Colorado)
 JOHN M. HURLEY,                                      (D.C. No. 98-N-377)

                Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       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 case is

therefore ordered submitted without oral argument.

       Pro se petitioner Nelson Oliver Duarte, an inmate at the United States

Penitentiary, Administrative Maximum, in Florence, Colorado, brought this 28


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 2241 habeas petition seeking to have four disciplinary reports expunged

from his prison record. He alleges that the reports are false, were issued in

retaliation for his participation in an action against federal officials, and

negatively impacted the United States Parole Commission’s decision on his

release date.

      On November 28, 1998, the magistrate judge issued a report and

recommendation for dismissal of the petition, finding that Mr. Duarte’s

conclusory allegations of falsehood and retaliation were not supported by any

evidence in the record. On December 2, Mr. Duarte filed objections to the

report. 1 The district court ultimately adopted the magistrate’s report and

recommendation in a very brief order, in which the court erroneously observed

that Mr. Duarte had not filed any objections. The court’s order additionally failed

to state specifically that it had conducted the requisite de novo review of the

issues and record. The court denied Mr. Duarte permission to proceed        in forma

pauperis on appeal.

      The government has filed a motion for a limited remand for the sole

purpose of ensuring that the district court reviewed de novo the magistrate




      Mr. Duarte also filed a notice of appeal on December 2, which was
      1

premature because the district court had not yet issued a final order. The appeal
became ripe for review, however, when the district court filed its order on
December 23, adopting the magistrate judge’s report and recommendation.

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judge’s report. While we would ordinarily remand a case where there is a serious

question whether the court conducted the requisite de novo review, in the unusual

circumstances of this case, we decline to do so. We have ourselves reviewed de

novo the record and the pleadings, and it is patently obvious that the district court

would reach the same result on remand. In the interest of judicial economy and

efficiency, we deny the government’s motion for a limited remand. We grant

Mr. Duarte’s request to proceed   in forma pauperis on appeal and, for substantially

the reasons set forth in the magistrate judge’s report and recommendation dated

November 24, 1998, we AFFIRM the dismissal of this petition.

                                                ENTERED FOR THE COURT



                                                Stephen H. Anderson
                                                Circuit Judge




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