                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALSJanuary 31, 2013
                                                              Elisabeth A. Shumaker
                                  TENTH CIRCUIT                   Clerk of Court



 CHRISTOPHER CLEVELAND,

                 Petitioner-Appellant,                  No. 12-6293
          v.                                           (W.D. of Okla.)
 KAMERRON HAVENEK, Warden,                      (D.C. No. 5:12-CV-00086-F)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Christopher Cleveland, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253(a), and we construe Cleveland’s filings liberally

because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3

(10th Cir. 1991).


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      We conclude the district court correctly disposed of Hall’s petition and

therefore deny the application for a COA, deny the motion to proceed in forma

pauperis, and dismiss this appeal.

                                I. Background

      Cleveland pleaded nolo contendere in Oklahoma state court to two counts

of child abuse and received a five-year deferred prison sentence. But Cleveland

was soon after convicted of perjury, thus leading the state to revoke his deferred

status and imprison him. Cleveland appealed certain aspects of his conviction

and sentence through the Oklahoma state courts and obtained no relief.

      Cleveland then filed a 28 U.S.C. § 2254 petition. His original petition

raised ten grounds for relief, but several of those grounds had yet to be exhausted

through the state courts. The magistrate judge therefore issued an order to show

cause why the entire petition should not be dismissed for lack of exhaustion.

Doc. 6. 1 In response, Cleveland filed an amended petition asserting only five

grounds for relief, all of which he believed had been exhausted.




      1
        Many of the district court filings relevant to this proceeding are not part
of the record on appeal. Nevertheless, we have authority to review them because
we may take judicial notice of public records, including district court filings. See
United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial
notice of district court record that was not part of the record on appeal).
We therefore cite to the PACER docket numbers in Western District of Oklahoma
case number 5:12-cv-00086-F.

                                        -2-
      The magistrate judge issued a report and recommendation (R&R) denying

relief on all five grounds. Cleveland then filed what the docketing clerk

categorized as an objection to the R&R, but which was in fact a collection of

affidavits and transcript excerpts. Doc. 25. The filing contained no argument or

explanation of the evidence’s relevance.

      But before the district court had resolved Cleveland’s purported R&R

objections, Cleveland filed a motion for leave to supplement his petition.

Doc. 26. This motion asserted four additional grounds for relief—all of which

Cleveland had asserted in his original petition but then abandoned in his amended

petition. Cleveland attached an order from the OCCA showing that these four

supplemental claims had now been exhausted.

      The district court issued an order refusing to treat Cleveland’s evidentiary

filing as an objection to the R&R, adopting the R&R in full, denying Cleveland’s

motion to supplement his petition, and denying a certificate of appealabilty.

Cleveland then filed a motion to reconsider. The district court denied that motion

and Cleveland timely appealed.

                                  II. Analysis

      A. Cleveland’s Objection to the R&R

      Cleveland first argues that the district court should have treated the filing

of the affidavits and transcript as a properly filed objection. The Federal Rules of

Civil Procedure, however, require an objecting party to file “specific written

                                           -3-
objections,” thus permitting the district judge to reconsider “any part of the

magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.

P. 72(b)(2), (3) (emphasis added); see also 12 Charles Alan Wright et al., Federal

Practice & Procedure § 3070.1 (2d ed., Dec 2012 update) (“The rule adds that the

objections must be ‘specific’ so as to conform to [28 U.S.C. § 636(b)(1)’s]

requirement that the [district] judge review those portions of the proposed

findings or recommendations to which objection is made.”). Cleveland’s filing of

affidavits and transcripts, without explanation, does not qualify as “specific

written objections.” The district court therefore committed no error in refusing to

consider Cleveland’s evidentiary filing. 2

      Given that Cleveland failed to object, he has waived appellate review of the

issues decided by the magistrate judge. Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991). We therefore do not reach the arguments he now asserts in

opposition to the magistrate judge’s R&R. 3



      2
        The filing was also untimely. Federal Rule of Civil Procedure 72(b)(2)
requires objections to be filed with fourteen days of the R&R. Cleveland filed
late. But the district court did not rule on these grounds.
      3
        The magistrate judge ruled on all five of the grounds for relief asserted in
Cleveland’s amended petition. Cleveland has only appealed on two of those
grounds: involuntariness of his nolo plea, and ineffective assistance through
counsel’s purported conflict of interest. As to the three other grounds—
ineffective assistance regarding advice leading to his nolo plea, constitutional
error for failure to inform him of the elements of his crime, and a lack of a factual
basis for his plea—he has waived them not only by failing to object to the R&R,
but also by failing to renew them here.

                                         -4-
      B. Cleveland’s Motion to Supplement His Habeas Petition

      Cleveland next contends that the district court erred in denying his motion

for leave to supplement his habeas petition with newly exhausted grounds for

relief. We treat a motion to supplement a habeas petition as a motion to amend

subject to Federal Rule of Civil Procedure 15, and review a district court’s

disposition of such a motion for abuse of discretion. See United States v.

Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000).

      The district court reasoned that Cleveland’s proposed supplemental grounds

for relief had been exhausted since the date of the OCCA decision announcing

their disposition. The court therefore denied the motion for undue delay,

considering he waited five months (and until after the R&R issued) to attempt to

supplement. Cf. Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that leave to

amend may be denied for “undue delay”). On appeal, Cleveland explains that he

was transferred to the Oklahoma County Jail on a writ of habeas corpus ad

testificandum during that time, so he was not receiving his regular mail. Thus, he

claims, he did not receive the OCCA’s order until he was returned to his “home”

prison. Because of this delay and because he receives only two hours per week in

the prison law library, Cleveland argues his motion should be considered timely.

      Even if the district court had been aware of these details, it would not have

abused its discretion in denying Cleveland’s motion to supplement. All of

Cleveland’s supplemental grounds for relief had been raised in his original

                                         -5-
petition, and indeed, the motion to supplement reproduces large portions of

Cleveland’s original petition verbatim or nearly so. Thus, by the time Cleveland

received the OCCA’s order, he had already developed not only the legal theories

asserted in his motion to supplement but also the very language he eventually

used to assert those legal theories. Even with only two hours per week in the law

library, Cleveland could have easily drafted and filed his motion to supplement

long before he did.

      In sum, the district court therefore did not abuse its discretion in finding

undue delay and we affirm its denial of Cleveland’s motion to supplement.

      C. Cleveland’s Remaining Arguments

      Cleveland raises four additional issues: two concerning the sufficiency of

the evidence when he was convicted of perjury, one claiming that the police

entered his home and arrested him without a warrant, and one arguing ineffective

assistance of counsel at the appellate level. These claims, however, were the

claims Cleveland attempted to assert in his motion to supplement. Because we

affirm the district court’s decision to deny leave to supplement, Cleveland has

waived these claims by failing to timely raise them below.

                                III. Conclusion

      Having found no substantial showing of the denial of a constitutional right,

we DENY the application for a COA, DENY the motion to proceed in forma



                                         -6-
pauperis, and DISMISS the appeal.

                                    ENTERED FOR THE COURT


                                    Timothy M. Tymkovich
                                    Circuit Judge




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