                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JUN 18 1999
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RICKY ABEYTA,
               Petitioner-Appellant,                     No. 98-2103
          v.                                     (D.C. No. CIV-97-706-LH)
 BILL CLEMENTS-POTTER,                                  (D. New Mex.)
 Warden/Director of T.D.C.J., and
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,
               Respondents-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the 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.

      Petitioner-Appellant Ricky Abeyta, proceeding pro se, appeals the district

court’s denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.


      *
       This order and judgment is not binding precedent, except under the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.
§ 2254.

      Petitioner is serving a life sentence in a Texas Department of Corrections

facility following conviction for multiple counts of first degree and second degree

murder and manslaughter. In his habeas corpus petition filed May 20, 1997,

Petitioner alleged that two jury instruction errors violated his due process rights.

On September 4, 1997, the magistrate judge issued its findings and

recommendation. While noting that the petition could be denied for failure to

exhaust New Mexico remedies, the magistrate judge elected to address the merits

of Petitioner’s claims. The magistrate judge found that the alleged instructional

errors did not render Petitioner’s trial fundamentally unfair and, accordingly,

recommended that the claim be denied with prejudice. The magistrate judge

notified Petitioner that he had ten days to file objections to the findings and

recommendation and that failure to object would waive appellate review. See R.,

Doc. 15 at 1 n.1. Noting Petitioner’s failure to file objections, 1 the district court

adopted the magistrate judge’s findings and recommendation and dismissed the

habeas petition with prejudice on September 30, 1997.

      On October 3 and 6, 1997, Petitioner filed identical documents entitled

“Answer to Magistrate Judge’s Findings and Recommended Disposition” in the



      1
       Applying Federal Rules of Civil Procedure 72(b), 6(a), and 6(e), Petitioner
had until September 22, 1997, to file objections.

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district court. In these documents, Petitioner essentially requested the court to

deny his petition without prejudice rather than with prejudice so that he could

exhaust his state remedies. See id., Docs. 17 & 18 at 3. Although the documents

are deemed filed as of September 26, 1997, the date on the certificate of service,

see Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 275-76 (1988), they

were filed too late to be considered as objections to the magistrate judge’s report.

However, after Petitioner filed a notice of appeal which the Government alleged

was untimely, this court entered an order construing these “Answer” documents as

timely motions under Federal Rule of Civil Procedure 59(e) for reconsideration of

the district court’s dismissal “with prejudice” rather than “without prejudice,” and

we abated Petitioner’s appeal pending disposition by the district court. 2 In an

Order filed on November 9, 1998, the district court summarily denied the Rule

59(e) motions. 3 Petitioner timely appealed and now requests this court to issue a

certificate of appealability.

      As a threshold issue, we must determine whether Petitioner’s failure to

timely file objections to the magistrate judge’s findings and recommendation has


      2
       Because the “Answer” documents were filed within ten days of the district
court’s entry of judgment, they were treated as motions to alter or amend the
judgment under Rule 59(e). See Hatfield v. Board of County Comm'rs for
Converse County, 52 F.3d 858, 861 (10th Cir. 1995).
      3
        The district court previously had denied Petitioner’s motion for a
certificate of appealability.

                                         -3-
waived his right to appeal. This court has adopted a “firm waiver rule” which

“provides that the failure to make timely objections to the magistrate’s findings or

recommendations waives appellate review of both factual and legal questions.”

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This rule does not

apply, however, when the magistrate judge does not inform a pro se litigant of the

consequences of failing to object or when the interests of justice dictate

otherwise. See id. at 659.

      Having reviewed the record and Petitioner’s brief on appeal, we conclude

that Petitioner was properly advised of the consequences of his failure to object to

the magistrate judge’s findings and recommendation but failed to so timely object.

Thus, he has waived his right to appellate review of the factual and legal issues

contained in the magistrate judge’s report and recommendation. Nothing in the

record would cause us to reject the waiver rule in this case; the interests of justice

do not dictate our appellate review of the magistrate judge’s findings and

recommendation.

      However, failure to object to the magistrate judge’s report does not

necessarily waive the right to appeal the district court’s decision to dismiss the

claims with prejudice, which is a legal conclusion distinct from those contained in

the magistrate judge’s report. Because we construed Petitioner’s filings on

October 3 and 6, 1997, as Rule 59(e) motions challenging whether the court


                                          -4-
properly dismissed with prejudice rather than without prejudice, Petitioner

effectively objected to the dismissal with prejudice. 4 See Fottler v. United States,

73 F.3d 1064, 1065 (10th Cir. 1996). Nevertheless, we agree with the magistrate

judge’s findings on the merits and, therefore, conclude that the district court did

not abuse its discretion by dismissing with prejudice.

      For these reasons, Petitioner has failed to make a substantial showing of the

denial of a constitutional right. His request for a certificate of appealability is

DENIED, and the appeal is DISMISSED. 5

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




      4
        Because Plaintiff waived the right to appeal the underlying merits of the
dismissal by failing to object to the magistrate judge’s findings and
recommendation, our general rule that we consider the merits of the underlying
decision in an appeal of a Rule 59(e) motion is not applicable here. See Artes-
Roy v. City of Aspen, 31 F.3d 958, 961 n.5 (10th Cir. 1994) (noting that an
appeal from the denial of a Rule 59 motion will be sufficient to permit
consideration of the merits of the underlying summary judgment if the appeal is
otherwise proper) (emphasis added). Accordingly, Plaintiff has preserved for
review only the issue of whether the court properly dismissed with prejudice
rather than without prejudice.
      5
       We also deny Petitioner’s motion for appointment of counsel filed in this
court on May 6, 1999.

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