                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       August 26, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MARTY RAY ARDIZZONE,

             Petitioner-Appellant,

v.                                                        No. 12-6288
                                                  (D.C. No. 5:12-CV-00913-HE)
JUSTIN JONES, Director,                                   (W.D. Okla.)

             Respondent-Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      Marty R. Ardizzone, an Oklahoma state prisoner, sought a certificate of

appealability (COA) from this court to appeal the district court’s dismissal of his

habeas petition as an unauthorized second-or-successive petition under 28 U.S.C.

§ 2254. After finding that the correctness of the district court’s procedural ruling

was debatable, we granted a COA and ordered the appellee to file a response


*
      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)(2); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
addressing why the case should not be remanded to the district court for

consideration of the merits of Mr. Ardizzone’s petition under 28 U.S.C. § 2241. The

appellee argued in response that the district court’s dismissal should be affirmed

under the abuse-of-the-writ doctrine or because Mr. Ardizzone’s claim was

time-barred. We do not reach the appellee’s contentions because we hold that

Mr. Ardizzone waived his right to appellate review by failing to file a timely

objection to a magistrate judge’s report and recommendation (R&R) in the district

court.

         After the district court ordered the appellee to file a response to

Mr. Ardizzone’s habeas petition, the appellee moved to dismiss the petition, and

Mr. Ardizzone filed a response in opposition to the motion. A magistrate judge then

issued an R&R on November 8, 2012, recommending that the petition be dismissed

for lack of jurisdiction. The R&R advised the parties of their right to file objections

and set a deadline of November 28, 2012. The R&R stated further that “[t]he failure

to timely object to this Report and Recommendation would waive appellate review of

the recommended ruling.” R. at 267.

         Rather than filing an objection in the district court, Mr. Ardizzone filed a

premature notice of appeal on November 15, 2012. On November 16, this court

ordered him to show cause within 21 days (i.e., by December 7), why his appeal

should not be dismissed for lack of jurisdiction because the district court had not yet

issued an appealable order. In that order we also reiterated that Mr. Ardizzone had


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until November 28 to file an objection to the R&R in the district court. But

Mr. Ardizzone still did not file an objection to the R&R by that deadline. On

December 3, the district court issued an order noting his lack of objection, adopting

the R&R, and dismissing his petition. Mr. Ardizzone filed his objection in the

district court on December 5. The court construed his filing as a motion to reconsider

or vacate its December 3 order. It denied the motion, noting his failure to justify the

late filing of his objection.

       Mr. Ardizzone filed a memorandum brief in this court on December 26, 2012,

which we construed as a response to our November 16 show-cause order. He

indicated that he intended to appeal the district court’s December 3, 2012 order. On

January 16, 2013, we ordered him to show cause why his appeal should not be

dismissed based on his failure to file a timely objection to the R&R. He responded

on February 1, stating that he thought that the deadline for filing his objection was

December 7, 2012, based on this court’s November 16 show-cause order. He

explained that he understood our order to have set a December 7 deadline because it

said that the appeal would be tolled until that date. He noted that he filed his

objection on December 5 based on that understanding, which he now recognizes was

incorrect.

       “This circuit has adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate judge.” Casanova v. Ulibarri,

595 F.3d 1120, 1123 (10th Cir. 2010) (internal quotation marks and brackets


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omitted). Under this rule, “the failure to make timely objection waives appellate

review of both factual and legal questions.” Id. (internal quotation mark and ellipsis

omitted). “There are two exceptions when the firm waiver rule does not apply: when

(1) a pro se litigant has not been informed of the time period for objecting and the

consequences of failing to object, or when (2) the interests of justice require review.”

Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (internal quotation marks

omitted).

      The first exception does not apply here because the R&R advised

Mr. Ardizzone of the deadline to file his objection and the consequence of a failure to

do so. “Among the factors this court has considered in determining whether to

invoke the interests-of-justice exception are [1] a pro se litigant’s effort to comply,

[2] the force and plausibility of the explanation for his failure to comply, and [3] the

importance of the issues raised.” Casanova, 595 F.3d at 1123 (internal quotation

marks and brackets omitted). Regarding the first factor, Mr. Ardizzone did make an

effort to comply by filing an untimely opposition to the magistrate judge’s R&R. But

the second factor does not weigh in his favor because his explanation for failing to

file a timely objection is not plausible. The R&R itself set forth the November 28

deadline. Even if Mr. Ardizzone was confused by the R&R, as evidenced by his

premature notice of appeal, we explained in our November 16 show-cause order that

the case was still pending in the district court, and we reminded him that he had been

given until November 28, 2012, to file his objection to the magistrate judge’s


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recommendation in the district court. Thus, Mr. Ardizzone was advised not once, but

twice, about the time limit for filing his objection in the district court, yet he still

failed to comply.

       As to the third factor, through our COA Order we have advised the appellee

and the district court of the need to distinguish between habeas petitions collaterally

attacking a prisoner’s conviction or sentence, which are filed and considered under

§ 2254, and habeas petitions challenging the execution of a prisoner’s sentence,

which are properly considered under § 2241. Mr. Ardizzone has not otherwise shown

that the interests of justice support an exception to our firm waiver rule in this case,

such that we should reach the merits of his appeal.

       The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




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