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

                            FOR THE TENTH CIRCUIT                           August 14, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 TRAVIS HODSON,

       Petitioner - Appellant,

 v.                                                          No. 20-1153
                                                 (D.C. No. 1:20-CV-00115-LTB-GPG)
 STEVE REAMS,                                                 (D. Colo.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.
                  _________________________________

      Travis Hodson, a Colorado state pretrial detainee appearing pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s dismissal of his

application for a writ of habeas corpus under 28 U.S.C. § 2241. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas corpus



      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
         Because Mr. Hodson is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we
begin to serve as his advocate.”).
proceeding in which the detention complained of arises out of process issued by a

[s]tate court”). He also requests to proceed in forma pauperis (“ifp”). Exercising

jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss this matter.

                                    I. BACKGROUND

                       A. Factual and Procedural Background

      Mr. Hodson was arrested in June 2019. His attorney moved for a competency

evaluation. The state court made a preliminary finding of incompetency and ordered the

Colorado Department of Human Services to evaluate him. It found Mr. Hodson

incompetent to proceed and committed him for “in-patient restoration to competency” in

January 2020. ROA at 47.

      Mr. Hodson filed a § 2241 petition challenging the constitutionality of the

Colorado competency statute. See Colo. Rev. Ann. Stat. § 16-8.5-102. He argued the

statute violated his Fourteenth Amendment due process rights and that his counsel’s

ineffective assistance violated his Sixth Amendment rights. He requested an evidentiary

hearing on his competency status.

      A magistrate judge recommended dismissal of Mr. Hodson’s § 2241 petition based

on Younger abstention.2 The recommendation noted that Mr. Hodson had 14 days to file


      2
        Absent extraordinary or special circumstances, federal courts are prohibited
from interfering with ongoing state criminal proceedings under Younger v. Harris,
401 U.S. 37 (1971). Younger abstention applies when “(1) there is an ongoing
criminal, civil, or administrative proceeding, (2) the state court provides an adequate
forum to hear the claims raised in the federal complaint, and (3) the state proceedings
involve important state interests.” Weitzel v. Div. of Occupational & Prof’l
                                               2
any specific written objections to the district court. It added that his failure to do so

might bar him from “appealing the factual findings and legal conclusions of the

[m]agistrate [j]udge that are accepted and adopted by the [d]istrict [c]ourt.” ROA at 64

n.2. Mr. Hodson did not file any objection.

       The district court adopted the magistrate’s recommendation and dismissed Mr.

Hodson’s § 2241 petition without prejudice under Younger. It also denied a COA and

Mr. Hodson’s request to proceed ifp on appeal. Mr. Hodson appealed. 3

       This court ordered Mr. Hodson to show that he did not waive his appeal under

the firm waiver rule. In response, he appears to argue plain error, and he asks that we

reconsider his claims in the interests of justice.

                                   B. Legal Background

   Firm Waiver Rule

       “Under this court’s firm waiver rule, the failure to timely object to a

magistrate judge’s finding and recommendations waives appellate review of both


Licensing of Dep’t of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotations
omitted). If the three requirements are met, and no exceptions apply, a federal court
must abstain from hearing the case. See id. (noting Younger abstention is a “non-
discretionary” issue).
       3
        Mr. Hodson also filed a motion to alter or amend the judgment. The district
court denied the motion because “[n]othing [he] assert[ed] . . . demonstrates that the
Court misapprehended the facts, his position, or the controlling law . . . .” ROA at 83. It
also noted Mr. Hodson failed to timely object to the magistrate judge’s recommendation.
Mr. Hodson did not file an amended notice of appeal or new notice of appeal seeking
review of this order. We therefore do not consider this ruling. See Fed. R. App. P.
4(a)(4)(B)(ii).

                                                  3
factual and legal questions.” Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015)

(quotations omitted). “[A] party’s objections to the magistrate judge’s report and

recommendation must be both timely and specific to preserve an issue . . . for

appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.

1996). “[O]nly an objection that is sufficiently specific to focus the district court’s

attention on the factual and legal issues that are truly in dispute will advance the

policies . . . that led us to adopt a waiver rule in the first instance.” Id.

       We have delineated two exceptions to the rule: (1) when “a pro se litigant has

not been informed of the time period for objecting and the consequences for failing to

object,” and (2) when “the interests of justice require review.” Duffield v. Jackson,

545 F.3d 1234, 1237 (10th Cir. 2008) (emphasis and quotations omitted). Factors

relevant to the second exception include “a pro se litigant’s effort to comply [with the

objection requirement], the force and plausibility of the explanation for his failure to

comply, and the importance of the issues raised.” Morales-Fernandez v. I.N.S., 418

F.3d 1116, 1120 (10th Cir. 2005) (emphasis omitted).

       “At a minimum, then, our ‘interest of justice’ standard . . . includes plain

error.” Id. at 1122. “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1122-23 (quotations

omitted).



                                                 4
   COA

      A state prisoner must obtain a COA to appeal denial of § 2241 relief. See

28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000).

To receive a COA, the petitioner must make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and must show “that reasonable jurists

could debate whether . . . the petition should have been resolved in a different manner

or that issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should issue

when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id.

                                    II. ANALYSIS

      Mr. Hodson has waived any right to appeal under the firm waiver rule. He did

not object to the magistrate judge’s recommendation to dismiss based on Younger

abstention. The first exception to the firm waiver rule is inapplicable here because

the magistrate judge informed Mr. Hodson he had 14 days to timely file specific

objections to his recommendation. See ROA at 64 n.2. The magistrate judge noted

that failure to do so would waive appellate review. See id.

                                               5
      The second exception does not apply either. Mr. Hodson appears to argue

plain error, and asks that we reconsider his claims in the interests of justice. But the

factors considered for the interests of justice exception weigh against Mr. Hodson.

First, he made no effort to challenge or object to any of the magistrate judge’s

recommendations. Second, he offers no explanation for his failure to comply with

the requirement to object. Third, after reviewing the record, we see no basis for

suspending the firm waiver rule for plain error. Fourth, although Mr. Hodson’s

issues may be important, the three other factors weigh against reconsidering his

claims.

      Even reading Mr. Hodson’s arguments liberally, we do not think the district

court committed plain error. He argues Colorado’s competency statute violated his

Sixth and Fourteenth Amendment rights. But the magistrate judge concluded the

district court “should abstain from exercising jurisdiction over the [§ 2241]

[a]pplication” based on the Younger abstention doctrine. Id. at 69. He explained that

Mr. Hodson “is subject to a criminal proceeding and he fails to allege facts that

indicate he will suffer great and immediate irreparable injury if the Court does not

intervene in the ongoing state court criminal proceedings.” Id. at 69-70. On appeal,

Mr. Hodson does not challenge this conclusion, see Aplt. Br. at 1-16, and nothing in

our review indicates that the magistrate or district court committed error in

abstaining.



                                               6
      The firm waiver rule bars our appellate review of the claims and precludes the

grant of a COA. See, e.g., Fierro v. Smith, 741 F. App’x 558, 561 (10th Cir. 2018)

(unpublished); United States v. Arroyo-Gonzales, 316 F. App’x 761, 763-64 (10th

Cir. 2009) (unpublished); Loyd v. Snedeker, 119 F. App’x 257, 259 (10th Cir. 2005)

(unpublished). 4

                                III. CONCLUSION

      We deny Mr. Hodson’s requests for a COA and to proceed ifp and dismiss this

matter.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




      4
         Although not precedential, we find the reasoning of unpublished orders cited
in this order instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not
precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P.
32.1.

                                              7
