                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        APR 12 2000
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 BILLY RAY THOMAS,

           Petitioner - Appellant,
 vs.                                                   No. 99-6379
                                                   (D.C. No. 99-CV-437)
 BOBBY BOONE, Warden,                                  (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Defendant-appellant Billy Ray Thomas, an inmate appearing pro se, appeals

from the denial of his habeas petition, 28 U.S.C. § 2254. He was convicted in

Oklahoma state court of second degree burglary, after former conviction of two or

more felonies, Okla. Stat. tit. 21, §§ 51(B) and 1435 (West 1997), and sentenced

to a forty-five year term of imprisonment. The Oklahoma Court of Criminal


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
Appeals (OCCA) upheld the conviction on October 2, 1998, and Mr. Thomas did

not seek state post-conviction relief but filed the instant habeas petition. The

magistrate judge recommended denying the petition on the merits. Mr. Thomas

did not file objections, and the district court adopted the magistrate’s

recommendation in full. This appeal followed.

      Ordinarily, “the failure to make timely objection to the magistrate's

findings or recommendations waives appellate review of both factual and legal

questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

However, the waiver rule need not be applied when justice dictates otherwise. In

the instant case, Mr. Thomas claims that he never received a copy of the

magistrate’s findings and recommendation, and therefore should not be held

responsible for the failure to file objections. In the interests of justice, we assume

that Mr. Thomas did not receive the magistrate’s report, and accordingly address

the habeas petition on the merits. See Tesoro v. Colorado, No. 97-1048, 1997 WL

787173, at **1 (10th Cir. Dec. 23, 1997) (unpublished opinion).

      Mr. Thomas claims that there was insufficient evidence to convict him

under Okla. Stat. tit. 21, § 51(B) because the state “failed to provide sufficient

evidence of the finality of the prior convictions.” Aplt. Br. at 6; see also

Linebarger v. Oklahoma, 527 P.2d 178, 183 (Okla. Crim. App. 1974). The OCCA

addressed this issue on direct appeal and specifically found that “the State


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presented sufficient circumstantial proof of the finality of Thomas’ prior felony

convictions through the introduction of certified copies of his prior judgments and

sentences.” OCCA Case No. F-97-1691, at 2 (Oct. 5, 1998) (OCCA Order), at R.

doc. 9, Ex. A.

      Under 28 U.S.C. § 2254(d), federal habeas will not be granted “with

respect to any claim that was adjudicated on the merits in State court

proceedings” unless the state court decision was (1) contrary to clearly

established federal law or (2) unreasonable in light of the evidence. The decision

of the OCCA was a resolution on the merits and Mr. Thomas has not shown how

it is contrary to federal law, even assuming that the issue raised implicates

sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Nor is the decision unreasonable in light of the six certified copies of judgment

and sentence introduced by the state, which ranged in time from 1984 to 1994.

“When an appeal has not been perfected within six months of the judgment and

sentence as provided by law, that judgment and sentence may be used to enhance

punishment in a subsequent trial under 21 O.S.1981, § 51.” Anhaitty v. State, 715

P.2d 82, 84 (Okla. Crim. App. 1986).

      Mr. Thomas also claims that the imposition of a forty-five year sentence

violates the Eighth Amendment prohibition against cruel and unusual

punishments. We agree with the OCCA “that a sentence of forty-five years is not


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shocking under the circumstances of this case, especially given Thomas’

numerous prior convictions for similar theft crimes.” OCCA Order at 2.

      AFFIRMED.




                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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