                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 30, 2007
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 D A RRYL R AY CO N LEY ,

       Petitioner - A ppellant,
                                                         No. 07-6046
 v.
                                                  (D.C. No. 05-CV-01381-R)
                                                         (W .D. Okla.)
 M IKE M ULLIN, W arden,

       Respondent - Appellee.



                            ORDER DENYING
                     CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Darryl Conley, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. Because Conley waived his right to appeal by

failing to timely object to the magistrate judge’s recommendation, we DENY a

COA and DISM ISS.

      Conley was convicted by a jury on one count each of first-degree rape, rape

by instrumentation, and sexual battery. At trial, the State presented testimony

from the victim that Conley had flagged her over to the side of the road while she

was driving home from church. Conley told the victim that something was wrong

with one of her tires and offered to help diagnose the supposed problem by riding
in her car. Conley then raped her. The State presented evidence that Conley’s

DNA matched a swab taken from the victim at a hospital after the rape.

      Based on Conley’s status as a two-time prior felony offender, the state trial

court sentenced him to consecutive sentences of eighty years on each count.

Conley’s subsequent appeals to the Oklahoma Court of Criminal Appeals and his

petition for state post-conviction relief were denied.

      Conley then filed a timely habeas petition in the W estern District of

Oklahoma raising twelve separate grounds for relief. 1 Upon referral from the

district court, a magistrate judge issued an exhaustive 68-page Report and

Recommendation advising dismissal of Conley’s habeas petition. Based on

Conley’s failure to file objections to the Report and Recommendation despite

obtaining repeated extensions, the district court adopted the magistrate’s

recom mendation in full and dismissed the petition. Conley now seeks a COA




      1
        Conley’s habeas petition claimed that: (1) His right to self-representation
w as violated; (2) H e had received ineffective assistance of trial counsel; (3) He
had received ineffective assistance of appellate counsel; (4) The trial court denied
him due process as the cumulative result of allegedly erroneous rulings at trial;
(5) The search warrant used to obtain his blood was invalid; (6) The State
withheld exculpatory evidence; (7) His Confrontation Clause rights were violated;
(8) The victim’s in-court identification of Conley was impermissibly suggestive;
(9) The evidence was insufficient to support a conviction; (10) He was arrested
and held without a w arrant for fifteen days in violation of the Fourth Amendment;
(11) The State used an “evidentiary harpoon” by allegedly suggesting that he had
committed a prior crime; and (12) The jury instructions w ere prejudicial.


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from this court to appeal the district court’s judgment. 2 In his application for a

COA, he raises, in general terms, each of the same twelve claims presented to the

district court.

       W e adhere to a “firm waiver rule” that precludes both legal and factual

review of issues addressed in a magistrate judge’s report and recommendation to

which a party has failed to raise timely objections. M oore v. United States, 950

F.2d 656, 659 (10th Cir. 1991). This rule applies to pro se applicants only when

the magistrate judge has provided clear notice that a failure to timely object will

waive that party’s rights on appeal. Id.

       In his Report and Recommendation, the magistrate judge unambiguously

“advised [Conley] of his right to file an objection to [the] Report and

Recommendation . . . on or before October 24, 2006.” Conley was further

“advised that failure to file a timely objection . . . waives the right to appellate

review of both factual and legal issues contained herein.” Given that Conley

failed to file objections by January 15, 2007— the last day of the final extension




       2
         Because the district court denied Conley a COA, he may not appeal the
district court’s decision absent a grant of COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Conley to show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

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granted by the district court— he has waived his right to challenge the

magistrate’s recommendation on appeal.

      Conley urges this court to nonetheless consider his arguments in the

interests of justice. Because the waiver rule is procedural rather than

jurisdictional, we may indeed decline to apply the rule in cases “where the

interests of justice so dictate.” M oore, 950 F.2d at 659. In reaching such a

determination this court has considered, among other factors, the w aiving party’s

own responsibility for the failure to file objections. See W irsching v. Colorado,

360 F.3d 1191, 1197 (10th Cir. 2004).

      In his memorandum addressing the waiver issue, Conley avers generally

that “forces of nature” prevented him from filing objections and that we therefore

should consider his failure to file excusable neglect. Conley apparently argues

that due to an ice storm, he had no access to prison administrative personnel

between January 12, 2007, and January 22, 2007, and thus could not file his

objection prior to the January 15, 2007, deadline. But as the district court noted

in declining to modify its order dismissing the petition,

      [p]etitioner’s objection was originally due October 24, 2006.
      Petitioner sought and was granted three extensions of time in which
      to file his objection to the Report and Recommendation. . . .
      Petitioner’s motion for an emergency extension of time was not even
      m ailed until four days after his objection was due. Even now,
      Petitioner does not present an objection and request leave to file it
      out of time; rather, he asks for appointment of counsel to assist him
      in preparing an objection.



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Given that Conley had already been granted 63 days beyond the original

20-day objection period, an ice storm does not justify his failure to file

timely objections.

      W e also review the district court’s decision for plain error. See

M orales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005). “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 the judicial proceedings.” Id. (quotations omitted).

Having carefully reviewed Conley’s pleadings, the record on appeal, and

the magistrate judge’s thorough Report and Recommendation, we conclude

that the district court did not commit plain error when it determined that the

state court adjudication did not “result[] in a decision that was contrary to,

or involve[] an unreasonable application of, clearly established federal law”

or “result[] in a decision that was based on an unreasonable determination

of the facts in light of evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d).

      For the reasons set forth above, Conley’s request for a COA is

D EN IE D and his appeal is DISM ISSED. W e GR ANT his motion to

proceed in forma pauperis, and we DISM ISS his motion for appointment of




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counsel as moot.

                    ENTERED FOR THE COURT



                    Carlos F. Lucero
                    Circuit Judge




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