Ochs v. Moya , 214 F. App'x 782 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RO BERT C. OCH S,
Petitioner-A ppellant, No. 06-2144
v. (D. of N.M .)
STANLEY M OYA, New M exico (D.C. No. CIV-05-337-M V/RH S)
Penitentiary W arden, and ATTO RN EY
G EN ER AL FO R TH E STA TE OF
N EW M EX IC O,
Respondents-Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before HA RTZ, EBEL, and TYM KOVICH, Circuit Judges. **
Robert Ochs is a state prisoner incarcerated at the N ew M exico Penitentiary
in Santa Fe. Proceeding pro se, he seeks a certificate of appealability (COA) to
appeal the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
habeas corpus. The district court denied the petition on the basis of the Report
and Recommendation of the magistrate judge, who concluded Ochs’s petition was
without merit. Because Ochs failed to object to the recommendation of the
magistrate judge, we conclude he has waived his right to appellate review and,
accordingly, we deny his request for a COA.
I. Background
Following a trial by jury in 2003, Ochs was convicted of arson and
tampering with evidence. The trial court sentenced him to ten-and-one-half years
imprisonment. In New M exico, arson consists of “starting a fire . . . with the
purpose of destroying or damaging property of another.” N.M .S.A. § 30-17-5-
(A). Ochs apparently set fire to a Ford Taurus that the State at trial established
belonged to his grandfather. There was disputed testimony on the issue, however,
and Ochs’s grandfather testified “he had given the car to M r. Ochs and that he
considered the car M r Ochs’ to do with as he wished.”
Nevertheless, the N ew M exico C ourt of A ppeals affirmed Ochs’s
conviction and the New M exico Supreme Court denied his request for a writ of
certiorari. Ochs’s state habeas petition was subsequently denied and Ochs did not
appeal that decision. He filed his federal habeas petition in M arch 2005, which
the magistrate judge construed as a claim seeking reversal of conviction on
grounds of insufficient evidence. New M exico filed a motion to dismiss.
-2-
After reviewing the record, the magistrate judge concluded that Ochs’s
submission failed to meet the standard under § 2254(d)(2), which allows a federal
court to grant habeas relief in a state case only if the state decision “was based on
an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding.” The magistrate judge noted at trial the parties
presented disputed evidence as to who owned the damaged car— the State’s
evidence showing Ochs’s grandfather held title to the car whereas the grandfather
testified he had given the car to Ochs as a gift. Nevertheless, the magistrate judge
reasoned it was not the province of the reviewing court to “weigh conflicting
evidence nor consider the credibility of the witnesses. Rather, the Court must
accept the jury’s resolution of the evidence as long as it is within the bounds of
reason.” M esser v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (internal
quotation omitted). Concluding Ochs was unable to make the requisite showing
of unreasonableness under § 2254(d)(2), the magistrate judge recommended
Ochs’s petition be dismissed.
The magistrate judge’s R eport and Recommendation further provided that:
W ithin ten days after a party is served with a copy of these proposed
findings and recommendations that party may, pursuant to 28 U.S.C.
§ 636(b)(1), file written objections to such proposed findings and
recommendations. A party must file objections within the ten day
period allow ed if that party wants to have appellate review of the
proposed findings and recommendations. If no objections are filed, no
appellate review will be allowed.
-3-
M ag. J. R& R at 5–6 (emphasis added). It is undisputed that Ochs did not file
objections to the magistrate judge’s Report & Recommendation.
II. Discussion
By failing to file written objections to the magistrate judge’s Report and
Recommendation, Ochs waived his right to appellate review of the determinations
of law and fact made by the courts below. See Key Energy Resources, Inc. v.
M errill, 230 F.3d 1197, 1199–1200 (10th Cir. 2000); Vega v. Suthers 195 F.3d
573, 579–80 (10th Cir. 1999); Theede v. United States Dep’t of Labor, 172 F.3d
1262, 1265–68 (10th Cir. 1999). The waiver rule applies with equal force to a
pro se party provided he “was properly informed of the consequences of his
failure to object,” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996),
unless the “interests of justice” require review. M orales-Fernandez v. INS, 418
F.3d 1116, 1119 (10 th Cir. 2005).
The magistrate judge’s R eport and Recommendation was explicit in its
adoption of the waiver rule and thus w e conclude that Ochs w as “properly
informed” of the consequences for failing to object. Nor has Ochs provided any
reason excusing our requirement that he file specific objections to the Report and
Recommendation that would satisfy the interests of justice exception.
Accordingly, Ochs waived his right to appellate review of the district court’s
factual and legal determinations.
-4-
III. Conclusion
For the reasons stated above, we conclude Ochs w aived his right to
appellate review and D EN Y his request for a COA.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
-5-