                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 25, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 DARY L F. FIELD S,

                 Petitioner-A ppellant,                  No. 07-6052
          v.                                            (W .D. of Okla.)
 STA TE OF O K LA H O MA ,                        (D.C. No. CV -06-1265-HE)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Daryl Fields, appealing pro se, seeks a certificate of appealability (COA) to

challenge the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. Applying this Circuit’s “firm waiver” rule, we affirm the district

court’s order and dismiss this appeal.




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Daryl Fields challenges his conviction for Possession of Drug

Paraphernalia, entered pursuant to a guilty plea. He claims that he was denied

effective assistance of counsel and was subjected to an illegal search and seizure.

      Fields is currently in custody at the Enid Correctional Center in Oklahoma,

serving time for a conviction unrelated to the one challenged in the present

petition. He admits that his only sentence for the challenged conviction was a

fine of $300 imposed in August of 2005. Fields did not appeal the conviction, but

sought post-conviction relief through the Oklahoma courts. The Oklahoma courts

denied relief, with the Oklahoma Court of C riminal Appeals declining to exercise

jurisdiction over the post-conviction appeal because Fields had not complied with

the appellate court’s procedural rules governing the timely filing of an appeal in a

post-conviction proceeding.

      The magistrate judge hearing Fields’s petition found in his Report and

Recommendation that the federal courts lacked jurisdiction to hear the claim,

because Fields was not in custody as required by 28 U.S.C. § 2554(a). The

magistrate judge then notified Fields that failure to object in a timely manner to

the Report and Recommendation waived his right to appellate review of both the

factual and legal issues contained therein. In a letter dated January 4, 2007,

Fields contacted the clerk for the W estern District of Oklahoma to explain that he

lacked access to legal materials and documents at the Enid Correctional Center

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and requested assistance in obtaining “the proper documents.” Document 9.

Since Fields’s letter did not identify the materials or documents sought, the

district court construed the letter as a request for an extension of time to respond

to the Report and Recommendation. The district court granted the request and

extended the filing deadline to February 1, 2007. Fields did not file his objection

by the February 1 deadline.

                                    II. Analysis

      W e have adopted a firm waiver rule such that a party failing to object in a

timely manner to a magistrate judge’s findings and recommendations waives

appeal on the legal and factual issues presented in the case. M orales-Fernandez

v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). The only exceptions to the rule are

“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.” Id. The first exception does not apply here as the magistrate

judge clearly warned Fields of the consequences of failing to timely object and

the relevant deadline.

      Fields asserts the second exception whereby the interests of justice require

us to review his claim. Our interests of justice standard incorporates a plain error

review, where we review in essence for a miscarriage of justice. Id. at 1122. 1

      1
         W e note that we have also considered the force and plausibility of a pro
se litigant’s explanation for non-compliance. M orales-Fernandez, 418 F.3d at
                                                                      (continued...)

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“Plain error occurs w hen 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. Fields does not meet these

elements.

      In the case before us, the magistrate judge and district court denied Fields’s

petition because he had not established that he was in custody as required by

§ 2254. The “in custody” requirement must be satisfied for habeas corpus

jurisdiction. Carter v. United States, 733 F.2d 735, 736 (10th Cir. 1984), cert.

denied, 469 U.S. 1161 (1985). “A petitioner need not show actual, physical

custody to obtain relief.” Dry v. CFR Court of Indian Offenses for the Choctaw

Nation, 168 F.3d 1207, 1208 (10th Cir. 1999). But courts have generally held

that a person sentenced to only a fine or restitution is not “in custody.” Barry v.

Bergen County Probation Dep’t, 128 F.3d 152, 160 (3d Cir. 1997), cert. denied,

522 U.S. 1136 (1998), United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988),

cert. denied, 490 U.S. 1084 (1989); Duvallon v. Florida, 691 F.2d 483, 485 (11th

Cir. 1982), see also Phelps v. Barbara, No. 97-3385, (10th Cir. Oct. 7, 1998),

cert. denied, 525 U.S. 1146 (1999). Because Fields suffered only a criminal fine,

he is not in custody as required by the federal habeas statutes.

      1
       (...continued)
1120. In this case, Fields provides a letter explaining why he could not comply
with the original January deadline for objecting to the magistrate judge’s Report
and Recommendation, but offers no explanation for his failure to meet the
extended February 1 deadline.

                                           -4-
      Accordingly, the district court did not err, let alone plainly err, in finding a

lack of habeas jurisdiction.

                                  III. Conclusion

      For the reasons above we DENY Fields’s application for a COA and

DISM ISS this appeal. In addition, we DENY his application to proceed IFP.



                                                Entered for the Court,

                                                Timothy M . Tymkovich
                                                Circuit Judge




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