[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-15876                ELEVENTH CIRCUIT
                                                          DECEMBER 27, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                  D. C. Docket Nos. 02-21735-CV-FAM,
                           95-00605-CR-PAS

JOSE SALDANA,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (December 27, 2010)

Before BLACK, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
      Jose Saldana, a federal prisoner, appeals pro se the district court’s judgment

on remand denying his 28 U.S.C. § 2255 claims. In an earlier appeal we held that

the district court had failed to address Saldana’s § 2255 claims about the admission

of expert testimony and an alleged Brady violation during his trial, and we

remanded the case for the district court to consider those claims. See Saldana v.

United States, 273 Fed. Appx. 842 (11th Cir. 2008) (unpublished). On remand the

magistrate judge issued a report analyzing those claims and recommending denial

of them, and the district court adopted that report, denying Saldana’s § 2255

motion to vacate his sentence.

      Saldana then filed with the district court a “Motion to File Objections to

Magistrate Judge P.A. White’s Report and Recommendation in an Out-of-Time

Fashion And, Simultaneously, Motion Pursuant to Rule 59(e) of the Fed. R. Civ. P.

to Alter or Amend Judgment in an Out-of-Time Fashion,” asserting that he did not

receive a copy of the magistrate judge’s report and recommendation until he

requested one from the clerk’s office, and by the time he received the report, the

district court had already issued an order adopting it. See Doc. 69 at 2.

Specifically, Saldana objected to the magistrate judge’s “failure to address his

motion for resentencing in conjunction with reopening of § 2255 proceeding, or in



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the alternative, motion for issuance of writ of habeas corpus.” 

He also

asked the district court to alter or amend its judgment, alleging that the court

lacked subject matter jurisdiction to impose an enhanced sentence because the

government had failed to comply with the requirements of 21 U.S.C. § 851. The

district court denied Saldana’s motion. He then asked the district court for a

certificate of appealability, which it also denied.

      For the second time in this case, we granted a certificate of

appealability—this time on the issue of whether Saldana should have been allowed

to file untimely objections to the magistrate judge’s report and recommendation

before the district court denied his § 2255 motion. We framed that issue this way:

      Whether the district court erred by denying Saldana’s motion to file
      untimely objections to the magistrate judge’s report and
      recommendation, where it appears that Saldana was not provided with
      a copy of the report and recommendation prior to the district court’s
      decision denying his claims that:

      (1)   the trial court erred by admitting expert testimony by Detective
            Andrade under Fed. R. Evid. 104(a) and 702, and that this trial
            and appellate counsel were ineffective for failing to challenge
            the trial court’s admission of that testimony; and

      (2)   the prosecutor committed a Brady violation by failing to disclose
            evidence that a government witness committed armed robbery of
            a dwelling, and that his trial and appellate counsel were
            ineffective for failing to make a Brady challenge to the
            prosecutor’s failure to disclose this information.

      Under Rule 72, when hearing a “pretrial matter dispositive of a claim or

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defense,” a magistrate judge is required to “enter a recommended disposition,” and

the clerk must “promptly mail” a copy of the magistrate judge’s report to each

party.” Fed. R. Civ. P. 72(b)(1). The parties in the present case had ten days after

the receipt of the magistrate judge’s report to file their objections with the district

court.1 Saldana contends that Rule 72 was violated in his case.

      “[W]hen reviewing a district court’s denial of a petition for writ of habeas

corpus, we review its findings of fact for clear error and its legal conclusions de

novo.” Williams v. McNeil, 

, 1290 (11th Cir. 2009). When a

petitioner challenges a district court’s decision denying habeas relief based on a

violation of Rule 72, we will affirm if the Rule 72 violation is harmless. Braxton

v. Estelle, 

, 397 (5th Cir. Unit A Apr. 3, 1981).2 In Braxton a § 2254

petitioner alleged that he was never notified of a magistrate judge’s report and

recommendation, and as a result he was unable to file his objections with the

district court.3 

that, assuming the petitioner did not receive the report

       1
         Effective December 1, 2009, Rule 72 was amended to extend the time limit from 10
days to 14 days for the parties to file objections to the magistrate judge’s report. See Fed. R.
Civ. P. 72 advisory committee’s note (2009). The magistrate judge’s report in the present case
was issued on May 1, 2009, when the earlier version of Rule 72 applied, so the parties had ten
days to file their objections.
       2
        In Bonner v. City of Prichard, 

, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
       3
       Even though Braxton involved a motion filed under § 2254 instead of under § 2255, it
makes no difference in the analysis of the Rule 72 issue. Cf. Pagan v. United States, 

in time to file objections, any error was harmless because none of the petitioner’s

arguments arose from a factual dispute, and “the district judge could assess the

merits of the petition from its face.” 

quotation marks omitted).

We further noted that the petitioner did not allege any new contention or fact that

he would have asserted by way of objections to the magistrate judge’s report. 

Rule 72 violation was harmless, we affirmed the district court’s

decision denying the § 2254 petition. 

present case the district court reviewed the record de novo before

adopting the magistrate judge’s report and recommendation.4 See Doc. 66 (stating

that the court had “reviewed the entire file and record” and had conducted a de

novo review of the issues presented in the magistrate judge’s report and

recommendation). As in Braxton, none of Saldana’s arguments arose from a

factual dispute, and “the district judge could assess the merits of the [motion] from

its 

. Saldana’s proposed objections were not even related to




1343, 1345 n.4 (11th Cir. 2003) (“For purposes of this issue, however, the analysis is the same in
the section 2254 context as it is in the section 2255 context.”).



       4
        A district court judge must review de novo the parts of the report and recommendation
to which a party objects. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.”); see also Jeffrey S. by Ernest S. v. State Bd. of Educ. of State of
Ga., 

, 512–13 (11th Cir. 1990).

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the magistrate judge’s report, which addressed the specific issues that this Court

had directed the district court to consider on remand. See Saldana, 273 Fed. Appx.

at 844. Instead, Saldana challenged the magistrate judge’s report for failing to

address issues that were not before the district court. Saldana raises those same

issues before this Court, and we cannot consider them. See Murray v. United

States, 

, 1250–51 (11th Cir. 1998) (holding that appellate review is

limited to the issues specified in the COA). Considering the grounds on which

Saldana objected to the magistrate judge’s report and recommendation, any error in

denying his motion to file objections after a de novo review of that report and

recommendation was harmless. See 

.

     AFFIRMED.




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