                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2001
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 DONALD R. RUSSELL,

          Petitioner - Appellant,
 v.
                                                        No. 01-1002
 UNITED STATES PAROLE
                                                    (D.C. No. 99-Z-1625)
 COMMISSION; WARDEN, USP
                                                          (D. Colo.)
 FLORENCE; FEDERAL BUREAU OF
 PRISONS; UNITED STATES
 ATTORNEY GENERAL,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Donald Russell, a United States citizen, pleaded guilty to several crimes in

a Canadian court and was sentenced to serve fifteen years. (Doc. 19, exh. A

(sealed), at 2-3.) Canada and the United States are parties to a treaty that allows



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
certain consenting prisoners to serve their sentences in their countries of

citizenship. As required by 18 U.S.C. § 4108, a magistrate met with Russell

before the transfer to ensure his consent was knowing and voluntary. (Doc. 2, at

5.)

      Upon Russell’s arrival in this country, the United States Parole Commission

was required to determine “a release date and a period and conditions of

supervised release . . . as though the offender were convicted in a United States

district court of a similar offense.” 18 U.S.C. § 4106A(b)(1)(A). We have

previously ruled that the “release date” referred to in this section is in reality a

“sentence” analogous to those imposed by the district courts on domestic

offenders. Bennett v. United States Parole Comm’n, 83 F.3d 324, 327 (10th Cir.

1996). The combined periods of imprisonment and supervised release could not

exceed Russell’s Canadian sentence of fifteen years. See id. § 4106A(b)(1)(C).

      In accordance with these statutory requirements, the Commission imposed a

“sentence” of the full fifteen years. (Doc. 19, exh. G (red tab A).) Recognizing

that Russell would be released before the end of this term because of good-time

credits, the Commission also imposed a term of supervised release until the end of

the full fifteen years. (Id.) Although Russell had a right to appeal the

Commission’s determination to this court within forty-five days after receiving

notice of it, see 18 U.S.C. § 4106A(2)(A), he did not do so.


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      Russell brought this petition for a writ of habeas corpus under 28 U.S.C.

§ 2241, alleging that (1) the transfer was invalid because he did not voluntarily

consent to it and (2) the Commission improperly imposed a term of supervised

release. (Doc. 2.) The district court adopted a magistrate judge’s

recommendation that the voluntariness claim be dismissed on the merits and the

supervised-release claim be dismissed for lack of jurisdiction. (Docs. 31, 32.)

Russell appeals the disposition of both issues.

      The district court had jurisdiction over Russell’s challenge to the validity of

the transfer under 18 U.S.C. § 3244(5). As we discuss below, it did not have

jurisdiction over his supervised-release claim. We have appellate jurisdiction

under 28 U.S.C. §§ 1291 & 2253. We review the district court’s decision de

novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999) (lack of

subject-matter jurisdiction); Sutton v. Utah State Sch. for the Deaf & Blind, 173

F.3d 1226, 1236 (10th Cir. 1999) (failure to state a claim).

      Russell did not file timely objections to the magistrate judge’s

recommendations. Ordinarily, this failure to object would amount to a waiver of

Russell’s arguments. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.

1991). Russell states, however, that he did not receive the magistrate judge’s

recommendations and therefore did not have notice of the need to file objections.

(Doc. 33.) If this is true, Russell’s failure to object would not amount to a


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waiver. Cf. Moore, 950 F.2d at 659 (declining “to apply the waiver rule to a pro

se litigant’s failure to object when the magistrate’s order does not apprise the pro

se litigant of the consequences of a failure to object to findings and

recommendations”). Because, as we discuss below, one of Russell’s claims may

have merit, we remand this case to the district court to determine whether Russell

had notice of the objection requirement. We affirm the dismissal of Russell’s

other claim.



A. Voluntariness of Consent to Transfer

      Russell asserts that he was misinformed about the federal parole system by

the magistrate at the time he consented to the transfer. Although he admits he

was properly informed, as provided by 18 U.S.C. § 4108(b)(2), that “the sentence

shall be carried out according to the laws of the United States and that those laws

are subject to change” (Doc. 2, at 5), he asserts he was also told that the “usual

requirement” is that an offender is released on parole after serving one-third of

the total sentence imposed and at most he would serve two-thirds of the sentence

before being released. (Doc. 25, at 5.) While this may have been a correct

representation of federal law before 1987, it was incorrect at the time it was made

in 1990 with respect to Russell’s offense, which was committed in 1989. See 18

U.S.C. §§ 4205-4206 (repealed effective Nov. 1, 1987).


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      Russell’s challenge to the voluntariness of his consent to the transfer is

analyzed under the standards that apply to defendants challenging the

voluntariness of their guilty pleas. See Rosado v. Civiletti, 621 F.2d 1179, 1190

(2d Cir. 1980). The magistrate judge in this case cited Hill v. Lockhart, 474 U.S.

52, 56 (1985), for the proposition that “[e]ven though Mr. Russell may not have

understood the details concerning when he might be eligible for parole, how his

good time credits might be applied, and how long he might be on supervised

release, this lack of understanding does not render his consent to transfer invalid.”

(Doc. 31, at 4.) In other words, the magistrate judge appeared to hold that a

defendant’s misunderstanding of the parole system could never render his consent

involuntary.

      This is an incorrect reading of Hill. There is dictum in Hill suggesting that

the courts and other state officials are not required to inform a defendant of his

parole eligibility. See 474 U.S. at 56 (“We have never held that the United States

Constitution requires the State to furnish a defendant with information about

parole eligibility in order for the defendant’s plea of guilty to be voluntary

. . . .”). That does not mean, however, that these state officials may give the

defendant erroneous information without calling the voluntariness of his consent

into question. As a number of federal appellate courts have recognized, “[W]here

parole eligibility information is provided to a defendant by the state or the


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defendant’s attorney and that information is grossly erroneous, a defendant may

be entitled to habeas relief where he can show that he would not have pleaded

guilty had accurate information been provided.” Meyers v. Gillis, 93 F.3d 1147

(3d Cir. 1996) (collecting cases); see also, e.g., Holmes v. United States, 876 F.2d

1545, 1549 n.5 (11th Cir. 1989) (“[I]f a trial court provides the defendant

information regarding parole eligibility that is materially incorrect, the defendant

may be entitled to withdraw his plea on voluntariness grounds . . . .”); Czere v.

Butler, 833 F.2d 59, 63 n.6 (5th Cir. 1987) (same). It is at least possible that

Russell’s consent to the transfer was rendered involuntary by the misinformation

he received from the magistrate.

      It is less clear that Russell has alleged he was prejudiced by this

misinformation – that he would not have consented to the transfer had he not

received the misinformation. At the very least, however, it is appropriate to give

him a chance to amend his petition to cure this defect. See Perkins v. Kan. Dep’t

of Corrections, 165 F.3d 803, 806 (10th Cir. 1999) (“Dismissal of a pro se

complaint for failure to state a claim is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.”).

      If on remand the district court determines that Russell has not waived his

objections, the court should then consider (1) whether he received such grossly


                                         -6-
erroneous misinformation from the magistrate that his consent to transfer was

involuntary, and (2) whether he was prejudiced by this misinformation.



B. Supervised Release

      Russell challenges the Parole Commission’s imposition of a term of

supervised release on the grounds that it has the practical effect of depriving him

of his earned good-time credits. We have previously held that such a claim is not

cognizable under § 2241 because it attacks the imposition of the sentence, not its

execution. See Bennett v. United States Parole Comm’n, 83 F.3d 324, 327-28

(10th Cir. 1996). The district court properly concluded that it lacked jurisdiction

over this claim. We affirm for substantially the reasons stated by the magistrate

judge and the district court.



C. Permission to File an Out-of-Time Appeal

      Russell also seeks to file an out-of-time appeal of the Parole Commission’s

original determination. (Doc. 37.) His notice of appeal should have been taken

within forty-five days of his receipt of notice of the Commission’s determination.

See 18 U.S.C. § 4106A(b)(2)(A). The timely filing of a notice of appeal is

mandatory and jurisdictional. United States v. Robbins, 179 F.3d 1268, 1269

(10th Cir. 1999). Even accepting Russell’s assertion that he did not receive such


                                         -7-
notice until September 2, 1995 (Doc. 2, at 4 n.3), his notice of appeal was due

more than five and a half years ago. Russell’s only explanation for the delay is

that he was not told at that time about the possibility of a direct appeal or the time

limits. That contention is belied by the record, which shows that Russell was

told, “You have the right to appeal the Commission’s determination to the United

States Court of Appeals that has jurisdiction over your place of confinement

within 45 days of when you receive notice of the determination.” (Doc. 19, Exh.

E-2, at 2; see also id. Exh. E, at 1; id. Exh. F, at 2.) We deny the petition.



D. Conclusion

      We AFFIRM the district court’s dismissal of Russell’s challenge to his term

of supervised release and DENY Russell’s petition to file a late notice of appeal.

We REVERSE the district court’s dismissal of his challenge to the transfer and

REMAND for the court to determine whether he waived the issue by failing to

file objections to the magistrate judge’s recommendations.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge



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