                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 2, 2008
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 JERRY EUGENE SEDILLO,

          Petitioner-Appellant,
 v.                                                Nos. 08-2015 & 08-2045
 TIMOTHY HATCH; ATTORNEY                    (D.C. No. 1:07-CV-00468-JCH-RLP)
 GENERAL OF THE STATE OF NEW                         (D. New Mexico)
 MEXICO,

          Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Jerry Sedillo, a New Mexico state prisoner appearing pro se, seeks a

certificate of appealability (COA) in order to challenge the district court’s denial


      *
        This order and judgment is not binding precedent, except under the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 and 10th
Cir. R. 32.1.
of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Because Sedillo

waived his appellate rights by failing to object to the Report and Recommendation

of the magistrate judge who conducted preliminary review in this case, we must

deny his request and dismiss the matter (08-2045). We also dismiss Case No. 08-

2015 for lack of finality. 1

                                         I.

       In 2005, Sedillo was convicted by a jury of kidnaping, child abuse, witness

intimidation, tampering with evidence, and three counts of aggravated battery

against a household member. He received a sentence of twenty and one-half

years’ imprisonment, with five years suspended. On direct appeal, Sedillo’s

convictions and sentence were affirmed. A petition for writ of certiorari raising

the same issues presented in Sedillo’s direct appeal was denied.

       In a subsequent state habeas corpus petition, Sedillo argued that he had

received ineffective assistance of counsel and listed ten grounds for relief. The

state trial court summarily denied Sedillo’s habeas petition, and Sedillo again



       1
         This case consists of two separate appeals from the proceedings below,
which have been consolidated for disposition. Sedillo’s notice of appeal in Case
No. 08-2015 was dated July 3, 2007 and sought to appeal the order of the district
court entered on that date. Our review of the record, however, reveals that the
district court entered no final, appealable order on or anywhere near that
date—and did not do so until nearly six months later. We therefore dismiss the
appeal in Case No. 08-2015 for lack of finality. See Albright v. UNUM Life Ins.
Co., 59 F.3d 1089, 1092 (10th Cir. 1995). The remainder of this order addresses
the appeal in Case No. 08-2045, which presents no similar problem.

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sought certiorari. His second petition for writ of certiorari was also summarily

denied.

          On May 11, 2007, Sedillo filed this § 2254 habeas petition, reasserting all

of the arguments that he previously raised on direct appeal, in his state habeas

petition, and in his second petition for writ of certiorari. On December 13, 2007,

a United States magistrate judge filed a Report and Recommendation

recommending that Sedillo’s petition be denied and the case dismissed without

prejudice. The Report and Recommendation contained the following notice

regarding the parties’ obligation to timely object to the magistrate judge’s

conclusions:

      Within ten (10) days after a party is served with a copy of the
      Magistrate Judge’s Report and Recommendation that party may,
      pursuant to 28 U.S.C. § 636(b)(1), file written objections in the
      United States District Court to the Report and Recommendation. A
      party must file any objections within the ten-day period allowed if
      that party wants to have appellate review of the Report and
      Recommendation. If no objections are filed, no appellate review will
      be allowed.

Rep. & Recomm., ROA Doc. 10 at 8 n.1.

      Accordingly, on December 14, 2007, the respondents filed their objections

to the Report and Recommendation. On December 26, 2007, Sedillo filed a

document titled “Petitioner’s Response to Respondent’s Objections to Magistrate

Judge’s Report and Recommendation.” As the title suggests, this response simply

sought to rebut the objections raised by the respondents, rather than raise any


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independent objections. Although the response also asserted that Sedillo “put

forward what he strongly beli[e]ves is a Constitutional Violation of his

Constitutional Rights”—suggesting that Sedillo disagreed with the magistrate’s

conclusion that he had not done so—Sedillo ultimately asked the district court to

“uphold [the] report and recommendation and allow the Petitioner appealability.”

Pet’r Resp. to Resp’t Obj., ROA Doc. 12 at 3. In an Order dated January 11,

2008, the district court, having reviewed the magistrate judge’s Report and

Recommendation and the parties’ filings, adopted the Report and

Recommendation, denied Sedillo’s § 2254 petition and dismissed the case without

prejudice.

      The district court subsequently denied Sedillo’s request for a COA. Sedillo

then renewed his request for a COA with this court. On March 3, 2008, we

entered an order directing the parties to file memoranda addressing whether

Sedillo waived his appellate rights by failing to object to the magistrate judge’s

Report and Recommendation. See Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991). The parties have filed briefs on this issue, and Sedillo has also

filed a brief on the merits.

                                         II.

      “This court has adopted a ‘firm waiver rule’ which provides that a litigant’s

failure to file timely objections to a magistrate’s [Report and Recommendation]

waives appellate review of both the factual and legal determinations.” Vega v.

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Suthers, 195 F.3d 573, 579 (10th Cir. 1999). Although Sedillo asserts that his

response to the respondents’ objections served as an objection to the Report and

Recommendation, we are unable to draw this conclusion. We recognize that pro

se pleadings are to be construed liberally. White v. Colorado, 82 F.3d 364, 366

(10th Cir. 1996). Even so, we find no place in Sedillo’s response where he asks

the district court to reject the magistrate judge’s conclusions. In fact, the

response essentially endorses the Report and Recommendation by asking the

district court to “uphold [the] report and recommendation . . . .” Pet’r Resp. to

Resp’t Obj., ROA Doc. 12 at 3.

      There are two narrow exceptions to the firm waiver rule, neither of which is

applicable here. First, if a pro se litigant is not notified of the time period for

filing objections and the consequences of failing to file, the waiver rule may not

apply. See Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir. 1996). As noted

above, the Report and Recommendation clearly notified Sedillo of both of these

concerns. See Rep. & Recomm., ROA Doc. 10 at 8 n.1.

      Second, the waiver rule “need not be applied when the interests of justice

so dictate.” Moore, 950 F.2d at 659. We have identified several key factors that

determine whether this exception applies, including: 1) the circumstances

surrounding the pro se litigant’s failure to file timely objections; 2) the litigant’s

subsequent efforts to remedy a failure to object; or 3) the merits of the claims.

See Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999).

                                           -5-
Sedillo points to no circumstances which excuse his failure to object to the

magistrate judge’s Report and Recommendation. Nor does he allege that he made

any effort to remedy his failure to object within the prescribed ten-day period. As

such, the only possible basis for our concluding that the interests of justice weigh

in favor of allowing the appeal is the underlying merit of his claims.

      After reviewing the record, we conclude that Sedillo’s claims have little

merit. The magistrate judge’s report thoroughly explains why Sedillo is not

entitled to habeas relief. The state courts applied the Supreme Court’s clearly

established precedents to the facts in an objectively reasonable manner. See

Brown v. Payton, 544 U.S. 133, 141 (2005). We further agree with the magistrate

and district court rulings that many of Sedillo’s claims were defaulted on state

procedural grounds, Maes v. Thomas, 45 F.3d 979, 985 (10th Cir. 1995), or have

not yet been exhausted, Castille v. Peoples, 489 U.S. 346, 351 (1989).

      Sedillo’s request for a COA is DENIED and these appeals (both 08-2015

and 08-2045) are DISMISSED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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