* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se eFed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY RAY THOMAS, Petitioner - Appellant, vs. BOBBY BOONE, Warden, Respondent - Appellee. No. 99-6379 (D.C. No. 99-CV-437) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **
Defendant-appellant Billy Ray Thomas, an inmate app earing pro se, appeals from the denial of his habeas petition, 28 U.S.C. § 2254. He was convicted in Oklahoma state court of second degree burglary, aft er former conviction of two or more felonies, Okla. Stat. tit. 21, §§ 51(B) and 14 35 (West 1997), and sentenced to a forty-five year term of imprisonment. The Okl ahoma Court of Criminal- 2 -

Appeals (OCCA) upheld the conviction on October 2, 1998, and Mr. Thomas did not seek state post-conviction relief but filed the instant habeas petition. The magistrate judge recommended denying the petition o n the merits. Mr. Thomas did not file objections, and the district court ado pted the magistrate’s recommendation in full. This appeal followed. Ordinarily, “the failure to make timely objection t o the magistrate's findings or recommendations waives appellate reviewof both factual and legal questions.” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). However, the waiver rule need not be applied when j ustice dictates otherwise. In the instant case, Mr. Thomas claims that he never r eceived a copy of the magistrate’s findings and recommendation, and there fore should not be held responsible for the failure to file objections. Inthe interests of justice, we assume that Mr. Thomas did not receive the magistrate’s re port, and accordingly address the habeas petition on the merits. See Tesoro v. Colorado , No. 97-1048, 1997 WL 787173, at **1 (10th Cir. Dec. 23, 1997) (unpublish ed opinion). Mr. Thomas claims that there was insufficient evide nce to convict him under Okla. Stat. tit. 21, § 51(B) because the stat e “failed to provide sufficient evidence of the finality of the prior convictions.” Aplt. Br. at 6; see also Linebarger v. Oklahoma , 527 P.2d 178, 183 (Okla. Crim. App. 1974). The O CCA addressed this issue on direct appeal and specifica lly found that “the State- 3 -

presented sufficient circumstantial proof of the fi nality of Thomas’ prior felony convictions through the introduction of certified c opies of his prior judgments and sentences.” OCCA Case No. F-97-1691, at 2 (Oct. 5, 1998) (OCCA Order), at R. doc. 9, Ex. A. Under 28 U.S.C. § 2254(d), federal habeas will not be granted “with respect to any claim that was adjudicated on the me rits in State court proceedings” unless the state court decision was (1 ) contrary to clearly established federal law or (2) unreasonable in light of the evidence. The decision of the OCCA was a resolution on the merits and Mr. Thomas has not shown how it is contrary to federal law, even assuming that the issue raised implicates sufficiency of the evidence under Jackson v. Virgin ia , 443 U.S. 307, 319 (1979). Nor is the decision unreasonable in light of the si x certified copies of judgment and sentence introduced by the state, which ranged in time from 1984 to 1994. “When an appeal has not been perfected within six m onths of the judgment and sentence as provided by law, that judgment and sent ence may be used to enhance punishment in a subsequent trial under 21 O.S.1981, § 51.” Anhaitty v. State , 715 P.2d 82, 84 (Okla. Crim. App. 1986). Mr. Thomas also claims that the imposition of a forty-five year sentence violates the Eighth Amendment prohibition against c ruel and unusual punishments. We agree with the OCCA “that a senten ce of forty-five years is not- 4 -

shocking under the circumstances of this case, espe cially given Thomas’ numerous prior convictions for similar theft crimes .” OCCA Order at 2.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge