                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 29 1998
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


RICHARD L. LARSON,

          Petitioner-Appellant,

v.                                                      No. 97-2215
                                                 (District of New Mexico)
DONALD DORSEY, Warden;                          (D.C. No. CIV-96-434-HB)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, 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 cause 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       This order and judgment is not binding precedent, except under the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.
      Richard L. Larson, proceeding pro se and in form pauperis, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition for lack

of subject matter jurisdiction. Because the district court’s conclusion that it

lacked subject matter jurisdiction is based on an unduly narrow reading of

Larson’s § 2254 petition, we reverse and remand for further proceedings. 1

       Larson was convicted in New Mexico state court on four counts of

criminal sexual penetration of a minor, one count of attempted criminal sexual

penetration, three counts of incest, and one count of criminal sexual contact of a

minor. His conviction was affirmed on appeal and his subsequent effort at state

post-conviction relief was summarily denied. Sometime thereafter, Larson

brought his first § 2254 petition in the United States District Court for the District

of New Mexico. 2 The district court denied relief and this court affirmed on

      1
       Because Larson filed his § 2254 petition prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, the AEDPA and its certificate of appealability requirements do
not apply to this appeal. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2
(10th Cir. 1997). Instead, the pre-AEDPA certificate of probable cause
requirements apply here. This court, therefore, liberally construes Larson’s
request for a certificate of appealability as a motion for a certificate of probable
cause, grants that motion, and proceeds to the merits of this appeal. See
Parkhurst v. Shillinger, 128 F.3d 1366, 1368 n.3 (10th Cir. 1997).
      2
        In this first § 2254 petition, Larson raised the following four issues:
“1)whether use of the first videotaped deposition at trial violated his Sixth
Amendment confrontation rights, 2) whether he was denied a speedy trial, 3)
whether he received ineffective assistance of counsel at trial and on direct appeal
in light of counsel’s failure to assert his speedy trial claim, and 4) whether he was
deprived of court-appointed counsel in violation of New Mexico’s Indigent

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appeal. Larson v. Dorsey, No. 91-2198, 1993 WL 76278 (10th Cir. March 12,

1993).

         Larson filed the instant § 2254 petition on April 1, 1996. The core of the

petition revolves around matters that apparently took place before Larson’s

conviction on the charges set out above. According to Larson, after a previous

arrest on the same charges upon which he was eventually convicted, he entered

into some kind of “letter agreement” with the state. That letter agreement

apparently provided that New Mexico would not prosecute Larson if he agreed

not to see his daughter. According to Larson, a New Mexico magistrate judge

played some part in the process leading to the letter agreement. It is this letter

agreement and the New Mexico magistrate judge’s participation therein that lies

at the heart of the current petition.

         Although Larson’s petition is far from a model of clarity, it appears to

assert the following as grounds for granting habeas relief: (1) he was denied his

right to due process during the process of reaching the letter agreement because

the magistrate did not follow state statutes; (2) the letter agreement constituted

punishment and the magistrate judge lacked subject matter jurisdiction to punish

him; (3) his subsequent arrest for the same conduct that formed the basis of the




Defense Act . . . .” Larson v. Dorsey, No. 91-2198, 1993 WL 76278, at *1 (10th
Cir. March 12, 1993).

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letter agreement violated the letter agreement and was, therefore, illegal; (4) his

subsequent punishment for the acts underlying the letter agreement constituted

double jeopardy; and (5) his counsel was ineffective for failing to raise the issues

set out above.

      New Mexico responded to Larson’s petition with a motion to dismiss on the

grounds of abuse of the writ. In response to New Mexico’s motion to dismiss, a

federal magistrate noted that the motion appeared meritorious but concluded, “in

the interests of fairness,” to allow Larson an additional period of time to respond

to the motion. Before Larson could so respond, however, the magistrate issued,

sua sponte, proposed findings which concluded that the district court lacked

subject matter jurisdiction over the petition. According to the magistrate,

“[a]lthough [Larson] is now in custody, he is not challenging in this § 2254

motion the convictions which led to his being in custody. Rather, [Larson] is

challenging an agreement not to prosecute which actually led to his not being in

custody and having charges dropped. I, therefore, find that [Larson] does not

meet the § 2254 ‘in custody’ requirement.” Magistrate Judge’s Proposed Findings

and Recommended Disposition at 2. The district court thereafter adopted the

magistrate’s proposed findings after concluding that Larson had not filed timely

objections thereto.




                                          -4-
      Before proceeding to the merits, we must first resolve a preliminary issue.

This court has adopted a firm waiver rule which provides that a failure to make

timely objections to a magistrate’s findings waives appellate review of both

factual and legal questions. United States v. One Parcel of Real Property, 73

F.3d 1057, 1059 (10th Cir. 1996). We have recognized, however, that the waiver

rule will not apply where the ends of justice dictate otherwise. Talley v. Hesse,

91 F.3d 1411, 1413 (10th Cir. 1996). Responding to this court’s request for

supplemental briefing on the issue, New Mexico argues that this is such a case

and we agree. As pointed out by New Mexico, Larson did in fact file written

objections to the magistrate’s proposed findings. Unfortunately, Larson

miscaptioned the objections and they were filed and docketed in a separate,

related case. In light of Larson’s pro se status and the fact that he did file timely,

written objections, albeit miscaptioned, we conclude that the waiver rule should

not apply. See Swanson v. Ward, No. 97-6057, 1997 WL 527562 (10th Cir. Aug.

27, 1997) (unpublished disposition) (refusing to apply appellate waiver rule where

objections were timely filed but inadvertently miscaptioned). We thus proceed to

the merits.

      The district court’s conclusion that it lacked jurisdiction over Larson’s

§ 2254 petition because Larson failed to sufficiently allege that he is in “custody”

is based on an unduly rigid interpretation of the petition. Cf. Hall v. Belmon, 935


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F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be

construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers.”). Liberally construed, it is apparent that Larson’s petition

makes not only a challenge to the process underlying the letter agreement, but

also contends that the process leading up to the letter agreement, in which process

a state magistrate judge allegedly participated, constituted an adjudication of his

rights. In line with this assertion, Larson contends that his subsequent arrest,

conviction, and punishment for the same conduct underlying the letter agreement

violated the double jeopardy clause. This challenge is clearly directed at a state

court judgment pursuant to which Larson is in custody. See 28 U.S.C. § 2254

(providing jurisdiction where petitioner is challenging state court judgment under

which petitioner is in custody). Accordingly, the district court erred in

concluding that it was without subject matter jurisdiction to consider Larson’s

§ 2254 petition.




                                         -6-
      The judgment of the United States District Court for the District of New

Mexico is hereby REVERSED and the case is REMANDED to the district court

for further proceedings. On remand, the district court should first consider New

Mexico’s Motion to Dismiss Larson’s petition as an abusive or successive

petition.

                                              ENTERED FOR THE COURT:


                                              Michael R. Murphy
                                              Circuit Judge




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