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

                            FOR THE TENTH CIRCUIT                          May 13, 2020
                        _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 DAVID BRIAN MORGAN,

       Petitioner - Appellant,

 and

 ERNEST DRAPER; KENNETH
 JOHNSON; CLEVE BILLINGS;
 JONATHON GRAHAM; MARK
 KERFOOT; STEVEN GLEN
 CRADDOCK,

       Petitioners,

 v.                                                        No. 20-6021
                                                    (D.C. No. 5:19-CV-00929-R)
 STATE OF OKLAHOMA;                                        (W.D. Okla.)
 DEPARTMENT OF CORRECTIONS,

       Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, BACHARACH, and MORITZ, Circuit Judges.
                   _________________________________




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      David Brian Morgan, proceeding pro se, has filed a combined opening brief

and request for a certificate of appealability (“COA”). Mr. Morgan seeks to appeal

from the district court’s decision dismissing his “Motion to File Writ of Mandamus

and Nunc Pro Tunc Judgment.” On the issue requiring a COA, we deny a COA. On

the issues that do not require a COA, we affirm the district court’s decision.

      Mr. Morgan entered a guilty plea in Oklahoma state court to thirteen counts,

including rape, molestation, kidnapping, and weapons possession. He was sentenced

to life in prison. The district court dismissed his first § 2254 habeas petition as

untimely, and this court denied a COA. See Morgan v. Addison, 574 F. App’x 852,

852-53 (10th Cir. 2014). Since the dismissal of his first habeas petition, Mr. Morgan

has attempted to challenge his convictions in numerous filings. See R. at 43

(detailing history of post-conviction challenges). His most recent filing in October

2019 was under the guise of a mandamus petition. A magistrate judge reviewed the

filing and issued a report and recommendation.

      The magistrate judge recommended that Mr. Morgan’s arguments challenging

the state court’s jurisdiction to convict him be treated as unauthorized successive

habeas claims and dismissed for lack of jurisdiction. He also noted that Mr. Morgan

had named several other parties to be included as petitioners in the lawsuit, but there

was no information about those individuals’ convictions beyond vague assertions that

their crimes occurred on Indian land. The magistrate judge therefore recommended

that those individuals be dismissed as petitioners, leaving Mr. Morgan as the sole

petitioner. The magistrate judge further recommended that, to the extent

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Mr. Morgan’s claims could be construed as asserting constitutional violations

pursuant to 42 U.S.C. § 1983, those claims should be dismissed for failure to a state

claim upon which relief could be granted. Finally, the magistrate judge

recommended that the court decline to assert supplemental jurisdiction over any state

law claims.

      The magistrate judge concluded his report by advising Mr. Morgan of his right

to file an objection to the report and recommendation and informing him that the

failure to timely object would waive appellate review of the recommended ruling.

Mr. Morgan filed a timely objection to the report and recommendation. In his

objection, he noted the court’s ruling that “calling a habeas by a different name does

not circumvent the established law,” and he stated that he “agree[d] with the findings

of the U.S. District Court.” R. at 50. Mr. Morgan then proceeded to object to a

different order in which the court applied funds he intended to use for the filing fee in

this case to another case, calling it an illegal misappropriation of funds.

      The district court reviewed de novo Mr. Morgan’s one specific objection to the

report and recommendation. The court noted that Mr. Morgan did not object to the

merits of the report and recommendation, but instead objected to another order

related to his failure to pay the filing fee. Concerning the fee issue, the court

explained: “$5.00 has been applied to the instant case. Plaintiff is therefore not in

default; his filing fee has been paid in full.” Id. at 58. The court adopted the report

and recommendation in its entirety and dismissed the petition because Mr. Morgan



                                            3
(1) did not file an objection to the merits, (2) did not seek an extension of time in

which to object to the merits, and (3) stated that he agreed with the court’s findings.

      In his combined opening brief and application for a COA, Mr. Morgan argues

about the merits of his petition, asserting that his convictions and sentence are

invalid. He asks to be released from custody. He also contends that he is entitled to

compensatory and punitive damages.

      Mr. Morgan waived his right to appellate review of the district court’s decision

to dismiss his petition because he failed to object to the magistrate judge’s

recommendation on resolving his petition. “[W]e have adopted a firm waiver rule

when a party fails to object to the findings and recommendations of the magistrate.”

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). If a party fails to make a

timely objection, he “waives appellate review of both factual and legal questions.”

Id. In addition, “a party’s objections to the magistrate judge’s report and

recommendation must be . . . specific to preserve an issue for . . . appellate review.”

United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).

      The firm waiver rule does not apply when (1) a pro se litigant has not been

informed of the time period for objecting and the consequences of failing to object,

Moore, 950 F.2d at 659, or (2) the interests of justice require review, Wirsching v.

Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004). Neither of the exceptions applies in

this case. The magistrate judge specifically informed Mr. Morgan of the

consequences of his failure to object to the resolution of his petition, but he limited

his objection to the magistrate judge’s separate order about a fee issue. He did not

                                            4
file any objections to the magistrate judge’s report and recommendation on the merits

of his petition. A review of the record reveals no circumstances supporting the

application of the interests-of-justice exception. Thus, Mr. Morgan has waived

appellate review of the arguments he now seeks to raise related to the merits of his

petition. See Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir. 1996) (holding specific

appeal arguments not raised in objections to report and recommendation were

waived).

      Accordingly, we deny a COA as to the dismissal of Mr. Morgan’s successive

habeas claims. We affirm the district court’s dismissal of Mr. Morgan’s § 1983 and

supplemental state law claims. We grant Mr. Morgan’s motion to proceed on appeal

in forma pauperis. 1 Mr. Morgan remains obligated to pay the filing fee in full.


                                            Entered for the Court
                                            Per Curiam




      1
         Mr. Morgan filed a supplemental brief on appeal challenging statements the
district court made in its order denying his motion to proceed in forma pauperis on
appeal (IFP) as to whether he paid a filing fee for an unrelated case in the United
States District Court for the District of Indiana. That issue is not properly before this
court because it does not involve the fee for the underlying district court case or this
appeal. To the extent Mr. Morgan seeks to challenge the district court’s denial of his
motion to proceed IFP on appeal, that challenge is moot because we are granting
Mr. Morgan’s motion.

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