                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 SOLOMON LEE FORD,

          Petitioner-Appellant,

 v.                                                        No. 98-4144
                                                            (D. Utah)
 UTAH BOARD OF PARDONS,                             (D.Ct. No. 97-CV-645-K)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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.



      Appellant Solomon Lee Ford, a state inmate appearing pro se, appeals the


      *
          This order and judgment is not binding precedent except under the doctrines of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.
district court’s decision dismissing his habeas corpus petition filed pursuant to 28

U.S.C. § 2254. We reverse the district court’s decision and remand for a decision

in accordance with this order and judgment and the reasons articulated herein.



      A Utah state trial court convicted Mr. Ford for possession of a weapon by a

restricted person. After various state court post-conviction proceedings, Mr. Ford

filed his § 2254 petition. The district court referred the matter to a magistrate

judge who, on June 17, 1998, issued a Report and Recommendation

recommending the district court dismiss the petition for procedural default and

advising Mr. Ford of his right to file any objections within ten days of receipt.

On July 1, 1998, Mr. Ford filed an “affidavit for extension of time” to respond to

the Report and Recommendation. In a July 9, 1998 order, the district court

granted Mr. Ford’s request and gave him until “5:00 p.m. on August 3, 1998" to

file his objections. On July 22, 1998, apparently due to an oversight, the district

judge prematurely adopted the magistrate judge’s Report and Recommendation

and dismissed the petition prior to receipt of Mr. Ford’s objections. In the

decision, the district court states “Petitioner filed an objection to the Magistrate’s

Report and Recommendation.” However, the record does not show that Mr. Ford

subsequently filed his objections.




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      Following the district court’s decision, Mr. Ford appealed. However, he

does not argue the district court’s premature decision denied him the opportunity

to file his objections, but instead appears to contend he did not procedurally

default his claims. Nevertheless, because we review the legal basis for the

district court’s dismissal of Mr. Ford’s § 2254 petition de novo, see Jackson v.

Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998), we

believe the absence of Mr. Ford’s objections, following his request for an

opportunity to file those objections, prevents us from conducting a full and fair de

novo review. Thus, we REVERSE and REMAND this case to the district court

for the purpose of allowing Mr. Ford an opportunity to file his objections to the

magistrate judge’s Report and Recommendation.



      Given the present disposition of this appeal, we find no reason to rule on

Mr. Ford’s motion to withdraw his appeal without prejudice pending his retention

of counsel and request for a certificate of appealability.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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