60 F.3d 837

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.

Petitioner, James M. Crater, brings this appeal challenging the district court’s order dismissing his civil rights suit against defendants. We affirm.

In September 1972, Mr. Crater escaped from the Department of Corrections for the state of Colorado. A fugitive warrant was obtained and escape charges filed. In November 1972, Mr. Crater was imprisoned in Kentucky for crimes committed in that state. Consequently, the Colorado fugitive warrant and escape charges were withdrawn.

In July 1979, Mr. Crater was released from prison in Kentucky. In late 1979, he was arrested and incarcerated in Illinois for crimes committed in that state. In March 1986, while Mr. Crater was still imprisoned in Illinois, Colorado lodged a detainer against him. In December 1993, after serving his Illinois sentence, Mr. Crater was extradited to Colorado where he is currently serving out the balance of his term of imprisonment from which he had fled in 1972.

On March 2, 1994, Mr. Crater filed a petition for writ of habeas corpus in state district court. On March 10, 1994, he filed an action in federal court pursuant to 42 U.S.C.1983. Thereafter, Mr. Crater’s state habeas corpus petition was denied. Mr. Crater appealed to the Colorado Supreme Court which affirmed the judgment. Crater v. Furlong, 884 P.2d 1127 (Colo.1994).

The district court dismissed Mr. Crater’s 1983 action seeking damages on the ground it is barred by the doctrine of collateral estoppel. He brings this appeal challenging that ruling, and also asserting the district court erred in not entering a default judgment in his favor against defendants.

Mr. Crater’s 1983 suit alleges he has been deprived of actual time credits, good time credits, and merit time credits by officials in the state of Colorado. He alleges these credits were accumulated during his periods of incarceration in Kentucky and Illinois. Mr. Crater argues this denial has violated his rights to equal protection of the laws and due process, for which he is entitled to an award of damages.

“[O]nce a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). To invoke the doctrine of collateral estoppel, mutuality of parties is not necessary. Rather, the doctrine requires an identity of issues raised in the successive proceedings and the determinations of these issues by a valid final judgment to which determination was essential. Id. at 94-95; Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (19th Cir.1990). Application of the doctrine requires that the party or parties against whom the earlier decision is asserted had a full and fair opportunity to litigate the claim or issue. Allen, 449 U.S. at 95.

Although Mr. Crater’s state habeas corpus petition was filed against defendants different than those named in this action, the facts of the state case are identical to those alleged here. See Crater, 884 P.2d at 1128-31. In his state action, Mr. Crater argued the facts of his case (specifically, his escape from Colorado, subsequent incarceration in Kentucky and Illinois, and subsequent extradition and incarceration in Colorado) amounted to a violation of his federal constitutional rights entitling him to immediate release from custody. Id. Because the facts presented in support of his state habeas action were identical to those presented here in support of his 1983 damages action, Mr. Crater had a full and fair opportunity to pursue his claims for monetary damages in that action. As such, we conclude the district court properly dismissed Mr. Crater’s 1983 action on the ground it is barred by the doctrine of collateral estoppel.

Mr. Crater also argues the district court erred in failing to enter a default judgment against the defendants because they failed to file a timely answer to his complaint. Mr. Crater did not, however, file a written objection to the Magistrate Judge’s recommendation, which did not address the issue of default judgment. As such, it is doubtful that this issue is properly before us. See Thomas v. Arn, 474 U.S. 140 (1985); Niehaus v. Kansas Bar Ass’n, 793 F.2d 1159, 1164 (10th Cir.1986). In any event, it is clear from the record the defendants timely filed their answer to Mr. Crater’s complaint. As such, the district court did not abuse its discretion in declining to enter a default judgment against defendants.

The order of the district court is, therefore, AFFIRMED.

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Petitioner Robert Marquez appeals the district court’s denial of his 28 U.S.C. 2254 petition for writ of habeas corpus. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

On April 12, 1990, Petitioner broke into a home in Littleton, Colorado intending to steal something he could sell. The owner of the home walked in on Petitioner. Petitioner slashed the owner’s hand with a knife and ordered him to surrender his car keys. Petitioner sped away in the owner’s car, only to be caught by a deputy sheriff and arrested minutes later.

The district attorney charged Petitioner with aggravated robbery, first and second degree burglary, second degree assault, and three habitual criminal counts.3 Petitioner moved to dismiss the habitual criminal counts, maintaining the supporting prior convictions were unconstitutional. The Colorado district court held Petitioner’s collateral challenge to his prior convictions was time-barred under Colo.Rev.Stat. 16-5-402. See Colo.Rev.Stat. 16-5-402 (three-year time limit to collaterally challenge all but class one felonies). The court held Petitioner had not demonstrated “justifiable excuse” or “excusable neglect” for failing to timely challenge his prior convictions, id. at 16-5-402(2), and therefore did not address the merits of Petitioner’s challenge. Vol. III at 228-31.

At trial, the district court advised Petitioner of his right to testify on his own behalf pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984). See id. at 514-15 (requiring trial court to give Defendant on-the-record advisement of his right to testify to insure waiver is voluntary, intelligent, and knowing). Petitioner waived his right to testify. Thereafter, the jury found Petitioner guilty of aggravated robbery, first and second degree burglary, and second degree assault, and also determined Petitioner had three prior convictions for second degree burglary.4 As a result, the court sentenced Petitioner to three consecutive terms of life imprisonment pursuant to Colo.Rev.Stat. 16-13-101(2), 16-11-309.

Petitioner appealed and contended, inter alia, that: (1) the district court deprived him of his right to testify by giving him a defective and misleading Curtis advisement, and (2) Colo.Rev.Stat. 16-5-402 violated his due process right to challenge an unconstitutional conviction, or, in the alternative, he had “justifiable excuse” for failing to timely challenge his prior convictions. The Colorado Court of Appeals affirmed Petitioner’s conviction. Specifically, the court concluded: (1) the district court adequately advised Petitioner of his right to testify pursuant to Curtis, and (2) Petitioner validly waived his right to testify. The court of appeals also concluded 16-5-402 did not violate Petitioner’s due process rights, relying on People v. Wiedemer, 852 P.2d 424 (Colo.1993). See Wiedemer, 852 P.2d at 437-38 ( 16-5-402’s collateral-attack time limits are reasonable and subject to exception for justifiable excuse; thus, 16-5-402 does not violate the Fourteenth Amendment Due Process clause). The court of appeals upheld the trial court’s finding that Petitioner had no “justifiable excuse” for failing to timely challenge his prior convictions. The Colorado Supreme Court denied certiorari.

In June 1994, Petitioner filed the instant 28 U.S.C. 2254 petition for writ of habeas corpus asserting the two grounds rejected by the Colorado Court of Appeals. The magistrate judge concluded Petitioner’s 2254 petition should be denied because he had not demonstrated the violation of a federal right under either of his contentions. The district court adopted the magistrate’s recommendation and denied Petitioner’s 2254 habeas petition. This appeal followed.

We grant Petitioner’s motions for certificate of probable cause and to proceed in forma pauperis. We have reviewed the parties’ briefs, the magistrate’s recommendation, the district court’s order, and the entire record before us. Based upon our review of the record, we find no reversible error and we affirm.

AFFIRMED.