                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 4, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



ERNEST GALLEGOS,

             Petitioner - Appellant,

       v.                                               No. 11-2093
                                                     (D. New Mexico)
ERASMO BRAVO, Warden; THE                   (D.C. No. 1:10-CV-00372-JB-KBM)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.


      Proceeding pro se, Ernest Gallegos seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). After a jury trial, Gallegos was convicted of

murder, kidnapping, aggravated burglary, armed robbery, aggravated battery, and

tampering with evidence. State v. Gallegos, 206 P.3d 993, 996 (N.M. 2009). His

convictions were affirmed by the Supreme Court of New Mexico. Id. at 1003.
Gallegos sought, and was denied, state post-conviction relief. He filed his timely

§ 2254 petition in federal district court on April 15, 2010.

      In his § 2254 petition, Gallegos presented the following nine claims: (1) he

was denied meaningful access to the courts because he did not have access to a

law library to prepare his § 2254 petition, (2) he is actually innocent, (3) the state

withheld exculpatory evidence, (4) the state fabricated evidence, (5) the state

knowingly destroyed exculpatory evidence, (6) the jury returned inconsistent

verdicts, (7) he was punished multiple times for the same criminal conduct, (8)

the district court erred by applying a firearm enhancement to his sentence because

the jury did not find that he possessed a firearm, and (9) he was denied effective

assistance of counsel. Gallegos’s petition was referred to a magistrate judge who

meticulously examined each of his claims. In a comprehensive report and

recommendation, the magistrate judge concluded Gallegos’s access-to-the-courts

claim, ineffective assistance claim relating to the grand jury instructions, and

freestanding claims of actual innocence were not cognizable in a federal habeas

corpus proceeding. Applying the standards set out in the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), the magistrate judge also concluded the

New Mexico courts’ adjudication of Gallegos’s remaining claims was not

contrary to, nor an unreasonable application of clearly established federal law. 28

U.S.C. § 2254(d). The magistrate judge recommended that Gallegos’s § 2254

petition be dismissed with prejudice.

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      Gallegos received notice in the report and recommendation that he was

required to file any objections he might have within fourteen days after receiving

the report. The notice was conspicuously outlined by a bold box and specifically

warned Gallegos that the failure to file objections would constitute a waiver of

those objections on subsequent appellate review. Gallegos’s written objections

consisted of the following paragraph, repeated twenty separate times in his filing:

      Petitioner objects to this proposed dismissal on the grounds that
      applicable law and applications thereof have not been followed and
      that his petition has been prejudice [sic] through purposly [sic]
      removing pieces of the record proper. That (AEDPA) standards are a
      mixed question of law and facts that can only be farreted [sic] out in
      an evidentiary hearing before the court.

This court has “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). “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. The district court

recognized the potential application of this court’s firm waiver rule, but

nevertheless considered Gallegos’s general objections de novo. In an abundance

of caution, the court also addressed the merits of all the claims upon which

Gallegos could argue for application of the interests-of-justice exception to the

firm waiver rule. See id. (“The waiver rule as a procedural bar need not be

applied when the interests of justice so dictate.”). After a comprehensive analysis


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of those claims, the district court adopted the proposed findings and

recommended disposition of the magistrate judge and denied Gallegos’s habeas

petition.

      In his application for a COA, Gallegos has simply reproduced all the claims

he raised in his § 2254 petition. Additionally, he challenges the district court’s

decision that an evidentiary hearing was not necessary to resolve his claims. He

does not, however, address the firm waiver rule or argue that either of the two

exceptions to the waiver rule apply in this case. See Talley v. Hesse, 91 F.3d

1411, 1412-13 (10th Cir. 1996) (“This rule does not apply, however, when . . . the

magistrate’s order does not clearly apprise a pro se litigant of the consequences of

a failure to object.”); Moore, 950 F.2d at 659. Because Gallegos’s terse and rote

objections to the magistrate judge’s findings and recommendations are

insufficient to avoid application of the firm waiver rule, this court concludes

Gallegos has not preserved for appellate review any of the claims raised in his

§ 2254 petition. See United States v. One Parcel of Real Property, 73 F.3d 1057,

1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate judge’s report

and recommendation must be both timely and specific to preserve an issue for de

novo review by the district court or for appellate review.”). Further, because

Gallegos’s claims were capable of being resolved on the record, the district court

did not abuse its discretion by failing to hold an evidentiary hearing. See Torres

v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).

                                         -4-
This court denies Gallegos’s request for a COA and dismisses this appeal.

                                      ENTERED FOR THE COURT


                                      Michael R. Murphy
                                      Circuit Judge




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