Douglas A. Cattelan, Petitioner-appellant, v. State of Utah; Fred Vanderveur, Warden, Respondents-appellees, 65 F.3d 178 (10th Cir. 1995)

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U.S. Court of Appeals for the Tenth Circuit - 65 F.3d 178 (10th Cir. 1995) Aug. 30, 1995

Before MOORE, BARRETT, and EBEL, Circuit Judges.


ORDER AND JUDGMENT1 

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 cause is therefore ordered submitted without oral argument.

This is an appeal from an order of the district court adopting a magistrate judge's recommendation to dismiss the pro se 28 U.S.C. 2254 petition of Douglas A. Cattelan. Although a question has been raised whether we have jurisdiction in this appeal, we conclude Mr. Cattelan's "pro se docketing statement" is the functional equivalent of a notice of appeal, Smith v. Barry, 502 U.S. 244 (1992), and we have jurisdiction.

Our review of the merits, however, leads us to conclude the magistrate judge did not err in his recommendation, and the district court properly dismissed. We therefore AFFIRM the judgment on the same grounds set forth in the recommendation of the magistrate judge.

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470