Ernest G. Moore, Petitioner-appellant, v. Janet Reno, United States Attorney General; Kathleen M.hawk, Director, Federal Bureau of Prisons; William A.perrill, Warden, Fci Englewood; Angie Shenk, Inmate,systems Manager, Fci Englewood, Respondents-appellees, 69 F.3d 548 (10th Cir. 1995)
Annotate this CaseBefore MOORE, BARRETT, and EBEL, Circuit Judges.
MOORE, Circuit Judge.
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 denying a petition for a writ of habeas corpus under 28 U.S.C. 2255. Upon the recommendation of a magistrate judge, the district court determined the petition was successive and dismissed on abuse of the writ grounds.
On appeal, petitioner contends he was "not provided notice of the court's intent to dismiss the petition nor allowed an opportunity to submit contrary evidence." This argument, raised for the first time in this court, is not supported by the record.
Petitioner was given an extended opportunity to answer the contentions raised by respondent's answer to the court's order to show cause, including the argument the petition was successive. In addition, the magistrate allowed petitioner additional time to supplement his original petition. Petitioner availed himself of both opportunities.
After entry of the magistrate's recommendation, petitioner was given an additional chance to object to the recommendation, which he did. Although attacking the recommendation by arguing he was being denied appropriate credits against his sentence, petitioner raised no issue about the magistrate's failure to give petitioner notice that his petition might be dismissed.
We conclude petitioner's appeal is unsupported by fact and therefore without merit. Moreover, given this is the fourth petition by which petitioner has contested the calculation of his confinement time, we see no error in the district court's conclusion the petition was abusive. McCleskey v. Zant, 499 U.S. 467 (1991).
AFFIRMED.
Entered for the Court
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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
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