                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              AUG 31 2001
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 01-4024
 MILTON HANSEN,                                      (D.C. No. 2:00-CV-911-K)
                                                             (D.Utah)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE 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)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Milton Hansen, a federal prisoner proceeding pro se, requests a certificate of

appealability to appeal the denial of his 28 U.S.C. § 2255 habeas petition. We deny a


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
certificate of appealability and dismiss the appeal.

       Hansen pled guilty to one count of attempted manufacture of methamphetamine

pursuant to a plea agreement and, on August 26, 1998, was sentenced to seventy

months in prison. He did not file a direct appeal. He filed his 28 U.S.C. § 2255

petition on November 21, 2000, asserting he was sentenced contrary to the strictures of

Apprendi v. New Jersey, 530 U.S. 466 (2000). The magistrate judge recommended

that the petition be dismissed as untimely. The district court adopted the magistrate's

report and recommendation and dismissed the petition.

       As an initial matter, we address the question of jurisdiction. This court has

adopted a “firm waiver” rule when a party fails to object to the findings and

recommendations of the magistrate judge. Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991). “Our waiver rule provides that the failure to make timely objection

to the magistrate's findings or recommendations waives appellate review of both

factual and legal questions.” Id. However, Hansen mailed his objections on the tenth

day after the report and recommendation was filed and the district court referenced his

objections in its opinion. Therefore, we have jurisdiction to consider the case on its

merits.

       Generally, § 2255 prohibits a prisoner from filing a petition more than a year

after the final judgment of conviction. Hansen filed his petition more than two years

after the final judgment. However, he argues his petition is within the following

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exception to the one-year standard rule: “The limitation period shall run from . . . the

date on which the right asserted was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review.” 28 U.S.C. § 2255.

      We need not reach the retroactivity issue. Apprendi is only relevant where a

defendant has been sentenced beyond the statutory maximum. See United States v.

Keeling, 235 F.3d 533, 538 (10th Cir. 2000). Hansen pled guilty to attempted

manufacture of methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1) and 846. The

maximum sentence for this crime is twenty years. See § 841(b)(1). Because Hansen

was sentenced to less than the statutory maximum, Apprendi does not apply. See

United States v. Thompson, 237 F.3d 1258 (10th Cir. 2001).

      Hansen has not “made a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2). We DENY a certificate of appealability and DISMISS

the appeal. The motion to proceed in forma pauperis on appeal is DENIED. The

mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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