Steven Mitchell, Petitioner-appellant, v. Michael O'dea, Respondent-appellee, 963 F.2d 373 (6th Cir. 1992)

ORDER

Steven Mitchell, a Kentucky pro se prisoner, appeals a district court order denying his motion for enlargement of time in which to file a notice of appeal or, in the alternative, motion for relief from judgment. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner was charged with first degree bank robbery, assault and attempted murder. At the trial, he sought to suppress prior guilty pleas on the basis that they were not voluntarily made. The state trial court found that such pleas were voluntarily made and subsequently convicted him of robbery, wanton endangerment, fourth degree assault, and being a persistent felony offender in the first degree. He received a life plus twenty-year sentence.

Petitioner sought habeas relief in the district court alleging that his two prior convictions were the result of involuntary guilty pleas and were improperly used for the persistent felony offender charge. The magistrate judge entered a report and recommendation finding that petitioner was not entitled to habeas corpus relief. After de novo review, the district court accepted the report and recommendation of the magistrate judge and dismissed the petition in an order entered January 11, 1991. On February 26, 1991, petitioner filed a Fed. R. Civ. P. 59(e) motion to vacate and reconsider the judgment alleging that the district court did not consider his objections to the magistrate judge's report and recommendation. After considering the objections, the district court denied the motion for reconsideration on April 26, 1991, and petitioner appealed on May 6, 1991. On October 2, 1991, this court held that it did not have jurisdiction to review the merits of the case. It also denied Mitchell's application for a certificate of probable cause.

Mitchell then filed a motion for enlargement of time to file a notice of appeal, or in the alternative, motion for relief from judgment. The district court denied Mitchell's motion, noting that, contrary to Mitchell's allegation, the court did consider his objections to the magistrate judge's report at the time it overruled his motion for reconsideration. The court further concluded that there was no basis to justify granting his motion. Mitchell filed a timely notice of appeal. Both parties have filed briefs. Mitchell requests leave to proceed as a pauper, a transcript at government expense and the appointment of counsel.

Upon review, we conclude the district court did not abuse its discretion in denying Mitchell's motion for enlargement of time in which to file a notice of appeal, or in the alternative, motion for relief from judgment. See Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir. 1990); Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016, 1020 (6th Cir. 1983).

Accordingly, Mitchell's request to proceed as a pauper is granted, but his requests for a transcript at government expense and for the appointment of counsel are denied. The judgment of the district court is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.