                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 29 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    STEVEN M. SELF,

                Petitioner-Appellant,

    v.                                                    No. 00-4197
                                                    (D.C. No. 97-CV-302-S)
    TERRY CALLAHAN, Chief Probation                        (D. Utah)
    Officer, United States Probation;
    UNITED STATES OF AMERICA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Steven M. Self appeals the district court’s September 12, 2000, order

denying his 28 U.S.C. § 2255 motion to vacate two criminal convictions, and

adopting the magistrate judge’s Report and Recommendation (R&R) to dismiss

Mr. Self’s petition for habeas corpus. Mr. Self also appeals the district court’s

denial as untimely his motion for reconsideration filed September 22, 2000.

Mr. Self has filed an application for certificate of appealability (COA) with this

court, attached to his pro se brief. For the following reasons, we deny the request

for COA and dismiss the appeal.

                                           I.

      Following a jury trial, Mr. Self was convicted of four counts of violating

the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6928(d), one

count of mail fraud, 18 U.S.C. § 1341, and one count of conspiracy to violate

RCRA, the Clean Air Act, and the Clean Water Act, 18 U.S.C. § 371. He was

sentenced to six months at a federal halfway house followed by six months of

home confinement.   1
                        On direct appeal, this court reversed four of the counts, but

affirmed the conspiracy charge and one count of violating 28 U.S.C. § 6928.

See United States v. Self , 2 F.3d 1071 (10th Cir. 1993).

      Mr. Self filed a motion under 28 U.S.C. § 2255 challenging his sentence

due to ineffective assistance of counsel and newly discovered evidence.


1
      Mr. Self has finished serving that sentence.

                                           -2-
A magistrate judge reviewed Mr. Self’s allegations and recommended that they be

denied on November 23, 1999. At the time of the filing of the R&R, Mr. Self was

not represented by counsel, however he was given notice that he was required to

file any objections he might have within ten days after receiving the report, and

he was specifically warned that his failure to file objections may constitute a

waiver of those objections on subsequent appellate review.

      On December 16, 1999, Mr. Self moved to extend the time to file

objections citing excusable neglect and his desire to hire an attorney. Noting

Mr. Self’s pro se status, the district court granted an additional ten days to object

to the magistrate judge’s R&R, but the court refused to grant time in addition to

the ten days, concluding:

             This case has previously been delayed for many months while
      plaintiff unsuccessfully sought to obtain an attorney. Plaintiff does
      not now identify the attorney he seeks to employ nor does he
      represent that the attorney has agreed to represent him. Instead
      plaintiff represents that he has “been talking to” an attorney.
      Because plaintiff has previously obtained a long stay of these
      proceedings while he unsuccessfully sought an attorney and where he
      has not now actually retained a new attorney, the court will not grant
      an additional sixty-day stay.

Aplee. Mem. Br., Attach. B (Jan. 4, 2000 Order) at 3-4.

      Mr. Self did not file objections within the required time. And while

Mr. Self eventually retained counsel, no objections were filed by him or his

attorney at any time prior to the district court’s September 12, 2000, order


                                          -3-
adopting the R&R, and dismissing his § 2255 motion. Mr. Self moved for

reconsideration of that order, but the motion was denied as untimely. This appeal

followed.

                                             II.

       While we have jurisdiction over this appeal,      see 28 U.S.C. §§ 1291, 2253,

2255, “we 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). “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. There are two

exceptions to this rule. The first exception involves the level of notice required

to be given to a pro se litigant about the consequences of his failure to object to

the report and recommendation.       See Talley v. Hesse , 91 F.3d 1411, 1412-13

(10th Cir. 1996). This exception does not apply to Mr. Self as it is clear from the

record that he was informed of the consequences of his failure to object to the

magistrate judge’s R&R. The second exception is that the waiver rule “need not

be applied when the interests of justice so dictate.”     Moore , 950 F.2d at 659.

       In applying this latter exception, we are mindful of the important interests

underlying the Magistrate’s Act that our waiver rule was designed to promote,        see

United States v. 2121 E. 30th St.   , 73 F.3d 1057, 1059 (10th Cir. 1996), as well as


                                             -4-
that any exception to that rule must be narrowly drawn so as to avoid the

“inefficient use of judicial resources.”    Id. at 1060 (quoting Thomas v. Arn ,

474 U.S. 140, 148 (1985)). In this particular case, Mr. Self has given no

explanation excusing his failure to file timely objections and there were no

untimely filed objections which the district court could review. Nevertheless,

Mr. Self desires that we apply the interests of justice exception to our waiver rule

based on the merits of his claims.     See Theede v. United States Dep’t of Labor   ,

172 F.3d 1262, 1268 (10th Cir. 1999) (reviewing merits of un-counseled, pro se

litigant’s claims to determine if interests of justice precludes waiver).

Newly discovered evidence claim

       The bases for Mr. Self’s claims of newly discovered evidence focus on

a private investigator’s interview with Milon Frith, who, in 1992, gave

incriminating testimony that helped convict Mr. Self. The interview, taped in

1996, includes some statements that were arguably inconsistent with his trial

testimony.   2
                 In that interview Mr. Frith also informed the investigator that he had

been granted prosecutorial immunity prior to his trial testimony. To be entitled to


2
       There were two interviews with Mr. Frith. The first, in 1996, formed part
of the basis for Mr. Self’s § 2255 claim and was reviewed and discussed by the
magistrate judge in the R&R. The second interview was conducted after the
report was issued but was not before the district court adopting the R&R.
On appeal, Mr. Self argues that the second interview further clarifies Frith’s
earlier interview and testimony, showing that testimony to be incorrect
and coerced.

                                             -5-
a new trial based on newly discovered evidence, the defendant must show the

following:

             (1) the evidence was discovered after trial; (2) the failure to
      learn of the evidence was not caused by his own lack of diligence;
      (3) the new evidence is not merely impeaching; (4) the new evidence
      is material to the principal issues involved; and (5) the new evidence
      is of such a nature that in a new trial it would probably produce an
      acquittal.

United States v. Stevens , 978 F.2d 565, 570 (10th Cir. 1992) (quoting   United

States v. Harpster , 759 F. Supp. 735, 738 (D. Kan. 1991)). The magistrate judge

thoroughly discussed the relevant portions of Mr. Frith’s testimony with these

five factors in mind, and we agree with the magistrate judge’s analysis of that

evidence. Moreover, we have separately reviewed the content of Mr. Frith’s most

recent interview and we find nothing new that would probably produce an

acquittal were Mr. Self granted a new trial, including the potentially impeaching

evidence of Mr. Frith’s prosecutorial immunity. Therefore, we conclude that

Mr. Self does not have a sufficiently meritorious newly discovered evidence claim

to overcome waiver.

Ineffective assistance of counsel claim

      Mr. Self also raised several ineffective assistance claims which the

magistrate judge concluded were without merit. To demonstrate a claim for

ineffective assistance of counsel,



                                          -6-
             First, it must be shown counsel committed serious errors so as
      to not be functioning as the “counsel” provided by the Sixth
      Amendment. To determine whether counsel’s performance
      comported with the Sixth Amendment, the inquiry is whether the
      attorney’s conduct is reasonable in light of all the circumstances of
      the case. This is an objective standard based on whether the
      reasonable defense attorney would act in the same manner as the
      defense counsel in the situation being analyzed. Second, it must be
      shown that counsel’s performance was prejudicial to the defense.
      The defendant must show that there is a reasonable probability that,
      but for counsel’s unprofessional errors, the result of the proceeding
      would have been different.

United States v. Voigt , 877 F.2d 1465, 1467-68 (10th Cir. 1989) (quotations and

citations omitted). After reviewing the record, we agree with the magistrate

judge’s R&R, as adopted by the district court, that Mr. Self’s claims lacked

specificity and failed to show prejudice such that there was a reasonable

probability that the outcome of the trial would have been different.

      On appeal, Mr. Self has focused on the unreasonableness of his counsel’s

failure to ask witnesses about deals struck with the prosecution, including the

prosecution’s grant of immunity in exchange for testimony. His only evidence of

such a deal actually being made is through the interview with Mr. Frith. While

informing the jury that Frith received immunity in exchange for his testimony

might have had some impact on his credibility, given the ample evidence against

Mr. Self regarding his two convictions, the potential impact of this additional

information is insufficient to show there was a reasonable probability that the

outcome of the criminal trial would have been different. Because Mr. Self has

                                         -7-
not shown prejudice, and because he has not adequately demonstrated that his

counsel’s failure to ask Mr. Frith about his grant of immunity falls below the

objective standard of reasonableness for a defense attorney, the ineffective

assistance claim is not sufficiently meritorious to overcome waiver.

      Mr. Self’s failure to object to the magistrate judge’s R&R waives appellate

review of both factual and legal questions. Mr. Self has not established that the

interests of justice would dictate our ignoring that waiver. Mr. Self’s request for

a certificate of appealability is DENIED and his appeal is DISMISSED.    3




                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




3
       By this order and judgment we also deny Mr. Self’s request for COA of the
district court’s denial of Mr. Self’s motion for reconsideration filed September
22, 2000. Because we have addressed the relevant merits of that motion in the
context of this dismissal, we need not decide whether that motion, however it is
construed under the Federal Rules, was or was not timely filed.

                                         -8-
