United States of America, Plaintiff-appellee. v. Gary Wayne Allen, Defendant-appellant, 972 F.2d 357 (10th Cir. 1992)

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Gary Wayne Allen, pro se, appeals from the dismissal of his motion for a writ of habeas corpus filed in the United States District Court for the District of Utah. We conclude that we are without jurisdiction and therefore must dismiss this appeal. McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir. 1989) (court of appeals has independent duty to inquire into its own jurisdiction, and has no choice but to dismiss appeal where jurisdiction is lacking).

On August 26, 1991, the magistrate judge recommended dismissal of the motion, and notified the parties of their right to object to the report and recommendation within ten days. The record does not reflect that defendant filed objections to the magistrate judge's recommendation or that the district court entered a final order. Defendant does not challenge the designation of a magistrate judge.

28 U.S.C. § 636 authorizes a district judge to designate a magistrate judge to conduct certain proceedings and to submit to the judge proposed findings of fact and recommendations. Prisoner petitions under 28 U.S.C. §§ 2241 and 2255 are matters that may be designated to a magistrate judge.¹  See § 636(b) (1) (B) (prisoner petitions challenging conditions of confinement); e.g., Bloomgren v. Belaski, 948 F.2d 688, 689 (10th Cir. 1991) (§ 2241 petition referred to magistrate judge). The parties are afforded ten days to object to the magistrate's findings. § 636(b) (1). Thereafter, the district court judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.

The recommendation of the magistrate judge is not an appealable final order within the meaning of 28 U.S.C. § 1291. See Colorado Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989) (lack of jurisdiction over appeal from magistrate judge's resolution of post-judgment dispute); Harding v. Kurco, Inc., 603 F.2d 813, 814 (10th Cir. 1979) (judgment entered upon magistrate judge's order not a final appealable order); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164-65 (10th Cir. 1986) (failure to object to magistrate judge's pretrial order precludes appellate review), superseded by statute on other grounds as stated in DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990).

The magistrate judge's recommendation cannot be construed as a premature announcement of the district court's final order. See § 636(b) (1) (judge shall make de novo determination of objected-to portions of magistrate judge's report); e.g., Colorado Bldg., 879 F.2d at 811 (district judge has ultimate authority for decision making for referred matters). Therefore, there exists no final order to ripen into an appealable order. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988) (Fed. R. App. P. 4(a) (2) permits prematurely filed notice of appeal to ripen and save the appeal).

Because the record does not disclose a final appealable order, this court is without jurisdiction. Accordingly, this appeal is DISMISSED. The mandate shall issue forthwith.