Williams v. Furlong

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 25 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVE WILLIAMS,
Petitioner-Appellant,
v. No. 97-1317
(D.C. No. 95-K-2654)
ROBERT FURLONG, Warden; (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA , LOGAN , and LUCERO , Circuit Judges.
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 case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
Petitioner appeals the district court’s order denying his petition for a writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner pled guilty to two
counts of first degree sexual assault in state court, for which he received two
consecutive thirty-year sentences. After exhausting his state remedies, petitioner
filed the present habeas petition seeking to set aside his guilty plea on the ground
that it was a product of the constitutionally ineffective assistance of his trial
counsel. The district court appointed counsel to represent petitioner in the habeas
proceedings and the magistrate judge held an evidentiary hearing on petitioner’s
claims. Thereafter, the magistrate judge issued a lengthy report recommending
that habeas relief be denied. Four weeks later, the district court adopted the
magistrate judge’s report and recommendation and dismissed the habeas petition.
This appeal followed.
As an initial matter, we must consider whether petitioner has properly
preserved his arguments for appellate review. The magistrate judge’s report and
recommendation explicitly directed the parties to serve and file written objections
to the proposed findings and recommendation within ten days, and warned them
that the “[f]ailure to make timely objections to the magistrate judge’s
recommendation may result in a waiver of the right to appeal from a judgment of
the district court based on the findings and recommendations of the magistrate
-2-
judge.” R., Vol. I, Doc. 59 at 30. Petitioner, however, failed to file any
objections to the magistrate judge’s report and recommendation.
“It is settled Tenth Circuit law that when a party fails to object to the
magistrate’s findings and recommendations within the appropriate time, he or she
waives the right to appellate review.” Trierweiler v. Croxton & Trench Holding
Corp. , 90 F.3d 1523, 1533 (10th Cir. 1996). We may make an exception to this
firm waiver rule when the interests of justice so require. See, e.g. , Moore v.
United States , 950 F.2d 656, 659 (10th Cir. 1991). No exception to the waiver
rule is warranted in this case, however.
Therefore, the judgment of the United States District Court for the District
of Colorado is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
-3-