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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Milton Hansen's appeal of the denial of his 28 U.S.C. § 2255 habeas petition. The court determines that although Hansen's objections to the magistrate's report were timely, his habeas petition was filed over two years after his final judgment of conviction and is therefore untimely under § 2255. Additionally, the court finds that Apprendi v. New Jersey does not apply to Hansen's case because he was sentenced to less than the statutory maximum for his crime. The court thus denies Hansen's request for a certificate of appealability and dismisses his appeal.

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    Filed: Patrick Fisher

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Milton Hansen's appeal of the denial of his 28 U.S.C. § 2255 habeas petition. The court determines that although Hansen's objections to the magistrate's report were timely, his habeas petition was filed over two years after his final judgment of conviction and is therefore untimely under § 2255. Additionally, the court finds that Apprendi v. New Jersey does not apply to Hansen's case because he was sentenced to less than the statutory maximum for his crime. The court thus denies Hansen's request for a certificate of appealability and dismisses his appeal.

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    Filed: 2001-08-31 Precedential Status: Non-Precedential Docket: 01-4024

    Original Title

    United States v. Hansen, 10th Cir. (2001)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Milton Hansen's appeal of the denial of his 28 U.S.C. § 2255 habeas petition. The court determines that although Hansen's objections to the magistrate's report were timely, his habeas petition was filed over two years after his final judgment of conviction and is therefore untimely under § 2255. Additionally, the court finds that Apprendi v. New Jersey does not apply to Hansen's case because he was sentenced to less than the statutory maximum for his crime. The court thus denies Hansen's request for a certificate of appealability and dismisses his appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    19 views3 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Milton Hansen's appeal of the denial of his 28 U.S.C. § 2255 habeas petition. The court determines that although Hansen's objections to the magistrate's report were timely, his habeas petition was filed over two years after his final judgment of conviction and is therefore untimely under § 2255. Additionally, the court finds that Apprendi v. New Jersey does not apply to Hansen's case because he was sentenced to less than the statutory maximum for his crime. The court thus denies Hansen's request for a certificate of appealability and dismisses his appeal.

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    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    AUG 31 2001

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,

    v.

    No. 01-4024

    MILTON HANSEN,
    Defendant-Appellant.

    (D.C. No. 2:00-CV-911-K)


    (D.Utah)

    ORDER AND JUDGMENT*


    Before HENRY, BRISCOE and MURPHY, 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.
    Milton Hansen, a federal prisoner proceeding pro se, requests a certificate of
    appealability to appeal the denial of his 28 U.S.C. 2255 habeas petition. We deny a
    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.
    *

    certificate of appealability and dismiss the appeal.


    Hansen pled guilty to one count of attempted manufacture of methamphetamine
    pursuant to a plea agreement and, on August 26, 1998, was sentenced to seventy
    months in prison. He did not file a direct appeal. He filed his 28 U.S.C. 2255
    petition on November 21, 2000, asserting he was sentenced contrary to the strictures of
    Apprendi v. New Jersey, 530 U.S. 466 (2000). The magistrate judge recommended
    that the petition be dismissed as untimely. The district court adopted the magistrate's
    report and recommendation and dismissed the petition.
    As an initial matter, we address the question of jurisdiction. This court has
    adopted a firm waiver rule when a party fails to object to the findings and
    recommendations of the magistrate judge. Moore v. United States, 950 F.2d 656, 659
    (10th Cir. 1991). Our waiver rule provides that the failure to make timely objection
    to the magistrate's findings or recommendations waives appellate review of both
    factual and legal questions. Id. However, Hansen mailed his objections on the tenth
    day after the report and recommendation was filed and the district court referenced his
    objections in its opinion. Therefore, we have jurisdiction to consider the case on its
    merits.
    Generally, 2255 prohibits a prisoner from filing a petition more than a year
    after the final judgment of conviction. Hansen filed his petition more than two years
    after the final judgment. However, he argues his petition is within the following
    2

    exception to the one-year standard rule: The limitation period shall run from . . . the
    date on which the right asserted was initially recognized by the Supreme Court, if that
    right has been newly recognized by the Supreme Court and made retroactively
    applicable to cases on collateral review. 28 U.S.C. 2255.
    We need not reach the retroactivity issue. Apprendi is only relevant where a
    defendant has been sentenced beyond the statutory maximum. See United States v.
    Keeling, 235 F.3d 533, 538 (10th Cir. 2000). Hansen pled guilty to attempted
    manufacture of methamphetamine pursuant to 21 U.S.C. 841(a)(1) and 846. The
    maximum sentence for this crime is twenty years. See 841(b)(1). Because Hansen
    was sentenced to less than the statutory maximum, Apprendi does not apply. See
    United States v. Thompson, 237 F.3d 1258 (10th Cir. 2001).
    Hansen has not made a substantial showing of the denial of a constitutional
    right, 28 U.S.C. 2253(c)(2). We DENY a certificate of appealability and DISMISS
    the appeal. The motion to proceed in forma pauperis on appeal is DENIED. The
    mandate shall issue forthwith.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge

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