                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                        TENTH CIRCUIT                 April 16, 2014

                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                             No. 13-2208
    v.                                                    (D. New Mexico)
                                                (D.C. Nos. 1:13-CV-00449-JCH-LAM
                                                     and 1:10-CR-03366-JCH-1)
    MARK ALFONSO ORTIZ,

                Defendant - Appellant.



                                           ORDER *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Mark Alfonso Ortiz pleaded guilty to being a felon in possession of

ammunition and a firearm. See 18 U.S.C. § 922(g)(1) (2006). He moved to

vacate the sentence under 28 U.S.C. § 2255 (2006), and the district court denied

the motion. Mr. Ortiz appeals and seeks leave to proceed in forma pauperis. We

grant leave to proceed in forma pauperis. But, we can entertain the appeal only if



*
       The present order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order may
be cited, however, for its persuasive value.
Mr. Ortiz is entitled to a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(B) (2006). Holding that he is not entitled to a certificate, we

dismiss the appeal.

                           Leave to Proceed in Forma Pauperis

      Because Mr. Ortiz is indigent, we grant his application for leave to proceed

in forma pauperis.

                     Standard for a Certificate of Appealability

      To obtain a certificate of appealability, Mr. Ortiz must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).

This showing requires 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. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

                                    Background

      In his § 2255 motion, Mr. Ortiz argued that: (1) one of his attorneys had

incompetently negotiated with the government and failed to request a mental

health evaluation (which allegedly would have resulted in a lower sentence), and

(2) the prosecutor had engaged in misconduct by failing to disclose an intent to

seek an enhanced sentence under the Armed Career Criminal Act.

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      This matter was referred to a magistrate judge, who recommended

dismissal with prejudice on the ground that Mr. Ortiz had waived his right to file

a § 2255 motion.

      In the recommendation, the magistrate judge stated that any party could

object within fourteen days of being served with a copy of the recommendation.

Failure to timely object, the magistrate judge warned, would preclude appellate

review.

      Thirty-four days later, Mr. Ortiz filed a document entitled “Motion in

Opposition of Magistrates Recommendation.” There he argued that he had not

received the government’s response to his § 2255 motion and asked the district

court to strike the magistrate judge’s recommendation. The government

responded to Mr. Ortiz’s motion by submitting the certified-mail receipt, showing

that the service copy had been sent to Mr. Ortiz’s address.

      The district judge adopted the magistrate judge’s recommendation,

concluded that Mr. Ortiz had failed to rebut the presumption of timely receipt of

the government’s response, and noted that no party had timely objected to the

magistrate judge’s recommendation. Mr. Ortiz asked the district judge for a

certificate of appealability, but she declined. Mr. Ortiz now asks us for one.

                       Mr. Ortiz’s Arguments on Appeal




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      On appeal, Mr. Ortiz reargues his claim of ineffective assistance, but

withdraws the claim of prosecutorial misconduct. Mr. Ortiz likewise reasserts

that he did not timely receive the government’s response, which prevented him

from fully litigating his § 2255 motion. Mr. Ortiz does not discuss the

government’s evidence or the timeframe for his objection to the magistrate

judge’s recommendation. Because Mr. Ortiz cannot overcome the firm waiver

rule imposed when a litigant fails to timely object to a magistrate judge’s

recommendation, we conclude that Mr. Ortiz is not entitled to a certificate of

appealability.

      Under the firm waiver rule, “[t]he failure to timely object to a [magistrate

judge’s] recommendations ‘waives appellate review of both factual and legal

questions.’” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). An exception

exists: (1) when the district court did not remind a pro se litigant of the deadline

and the consequences of a failure to timely object, or (2) when review on the

merits is required in the “interests of justice.” Id.

      Mr. Ortiz did not timely object to the magistrate judge’s recommendation.

Thus, we consider the two exceptions.




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      The first exception does not apply because the magistrate judge informed

Mr. Ortiz of both the time period for objecting and the consequences of failing to

timely object.

      The second exception is also inapplicable. The government established

that it had timely sent Mr. Ortiz a copy of its response brief, and Mr. Ortiz does

not present any other reason for his delay in objecting.

      In these circumstances, we conclude that Mr. Ortiz waived appellate review

by failing to timely object to the magistrate judge’s report.

                                    Conclusion

      Although we grant Mr. Ortiz’s application for leave to proceed in forma

pauperis, we conclude that he has waived appellate review. Thus, we deny his

request for a certificate of appealability and dismiss the appeal.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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