                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALS June 17, 2013
                                                              Elisabeth A. Shumaker
                                  TENTH CIRCUIT                   Clerk of Court



 DONALD WING,

                 Petitioner-Appellant,                  No. 13-2024
          v.                                            (D. of N.M.)
 JAMES JANECKA,                             (D.C. No. 2:12-CV-00184-JAP-GBW)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


      Donald Wing, a New Mexico state prisoner, requests a certificate of

appealability (COA) under 28 U.S.C. § 2253(c)(1)(A) to appeal the district

court’s denial of federal habeas relief under 28 U.S.C. § 2254. He also asks to

proceed in forma pauperis (IFP). We construe Wing’s filings liberally because he

is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his

COA request, decline to address his IFP request as moot, 1 and dismiss the appeal.


      *
         This order is not binding precedent except under the doctrines of law of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.
      1
           Because Wing was granted permission to proceed IFP in the district
                                                                     (continued...)
      Wing was arrested after making illicit online communications with an

undercover officer posing as a twelve-year-old girl. A police investigation

uncovered child pornography on Wing’s computer and video footage on Wing’s

camera of a middle-aged man who appeared to be Wing engaging in sex acts with

Wing’s four-year-old granddaughter. Wing was therefore charged and tried

before a New Mexico state jury for twenty-one counts of sex crimes against

children. At the trial’s conclusion, the jury found Wing guilty of one count of

child solicitation by electronic communication, four counts of first-degree

criminal sexual penetration of a child under the age of thirteen, four counts of

sexual exploitation of children, one count of second-degree criminal sexual

contact with a child under the age of thirteen, and ten counts of possessing child

pornography. Wing was sentenced to eighty-seven years’ imprisonment.

      Wing appealed his convictions and sentence, both of which were affirmed

by the New Mexico Court of Appeals. The New Mexico Supreme Court then

denied certiorari. Wing’s subsequent habeas petition to state court was also

denied, and the state supreme court again denied certiorari.

      Next, in the District of New Mexico, Wing filed a pro se petition for the

writ of habeas corpus under 28 U.S.C. § 2254. Wing raised six claims, all related

to the allegedly ineffective assistance of his trial counsel. A magistrate judge

      1
        (...continued)
court, and the district court did not alter his status, his IFP status continues on
appeal. See Fed. R. App. P. 24(a)(3). Thus, his IFP request is moot.

                                          -2-
conducted the first review of Wing’s petition. The magistrate judge found four of

the claims were exhausted in state court but two were not. Still, because he found

all six to be without merit for failure to show prejudice, he recommended denying

the petition in full. The magistrate judge also advised Wing that Wing had

fourteen days to file any objections to the findings or recommended disposition.

      Wing did not respond to the magistrate judge’s findings and

recommendation until almost thirty days later, when he asked the district court for

an additional six months to draft a response. The district court granted the

extension, and four months later, Wing filed a document titled “Petitioner’s

Objections to Proposed Findings and Rec[]ommended Disposition.” R. at 356.

      The district court construed Wing’s filing not as an objection to the

magistrate judge’s findings and recommended disposition but as a motion to

amend the habeas petition. Considering the untimeliness of the motion and the

magistrate judge’s unchallenged findings, the district court denied the motion to

amend and adopted the magistrate judge’s recommendation in full, thereby

denying Wing’s petition. The district court also declined to grant a COA.

      Wing now seeks a COA from our court. Without one, he cannot appeal the

denial of his habeas petition. See 28 U.S.C. § 2253(c)(1)(A). We grant a COA

only if an applicant shows “that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” United

                                         -3-
States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (internal quotation marks

omitted).

      Wing cannot demonstrate that the issues he has presented should have been

resolved differently or deserve encouragement to proceed further. “[W]e have

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

recommendations of the magistrate [judge].” Duffield v. Jackson, 545 F.3d 1234,

1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th

Cir. 1991)). Here, the district court correctly construed Wing’s filing as a motion

to amend his petition, not as an objection to the magistrate judge’s findings or

recommended disposition. In Wing’s filing, he conceded, “Petitioner has

apparently failed to present his petition in a manner that expresses why he feels

his grounds are meritorious,” and he goes on to request “leave to amend his

petition to attempt to better explain his grounds and present this court with

information/evidence to show his grounds are meritorious.” R. at 356–57. He did

not challenge any of the magistrate judge’s original findings or the

recommendation. Accordingly, Wing waived any objection, and the district court

properly adopted the magistrate judge’s opinion and denied Wing’s petition.

      To be sure, an “interests of justice” exception exists when the pro se

litigant raises important issues but falls just short of complying with the timely

objection requirement, or offers a persuasive explanation for his failure to

comply. See Duffield, 545 F.3d at 1238. But neither circumstance applies here.

                                         -4-
Wing concedes that he “incorrectly titled” his filing to the district court as

“objections to [the magistrate judge’s findings and recommendations]”; he admits

he intended only to file “a motion to amend” his habeas petition. See Aplt. Br. at

1, Att. A (emphasis added). And as the district court explained, a motion to

amend was subject to denial on two independent bases, futility and undue delay.

Although Wing explains why his motion to amend was delayed, nothing in

Wing’s arguments or in the record suggests amendment would not be futile.

      For these reasons, we DENY Wing’s application for a COA and DISMISS

the appeal.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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