                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 28 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 SAMUEL O. TELLES,

                Petitioner-Appellant,                     No. 00-2085
           v.                                           (D. New Mexico)
 ELOY MONDRAGON, Warden,                           (D.C. No. CIV-99-980-MV)
 Guadalupe County Correctional
 Facility; ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

                Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before HENRY , BRISCOE and MURPHY , 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)(c); 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        This order and judgment is not binding precedent, except under the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.
      Samuel O. Telles, a New Mexico state prisoner proceeding pro se, seeks to

appeal the district court’s order denying his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. For the reasons set forth below, we conclude that

Mr. Telles has waived his right to appellate review and dismiss this appeal.

      The underlying facts are fully set forth in the New Mexico Court of

Appeals opinion.   See State v. Telles , 973 P.2d 845 (N.M. Ct. App. 1998). While

driving home from a bar in February 1996, Mr. Telles collided with a motorcycle,

injuring the driver and killing the passenger. At the time of the accident, law

enforcement officers measured his blood alcohol content at .22—an amount over

the level (.08) that constitutes driving under the influence under New Mexico law.

See N.M. Stat. Ann. § 66-8-102 (1978). A New Mexico state court convicted

Mr.Telles of the following offenses: homicide by vehicle, great bodily injury by

vehicle, and driving without insurance. On the first offense, the court sentenced

him to a term of six years’ imprisonment, enhanced by a four-year term based on

two prior Florida convictions for driving while impaired. On the second offense,

the court sentenced him to a term of three years; it also enhanced that term by

four years based on the Florida convictions. On the third offense, it sentenced

him to ninety days’ imprisonment.

      The New Mexico Court of Appeals affirmed Mr. Telles’s conviction and

sentence. After seeking collateral relief in the New Mexico state courts, Mr.


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Telles filed the instant habeas petition in the federal district court. He asserted

the following claims: (1) that law enforcement officers’ comments about his

post-arrest silence violated his Fifth Amendment rights; (2) that the state trial

court’s exclusion of evidence regarding the blood alcohol level and drug use of

the motorcycle’s driver and passenger violated his due process rights; (3) that the

use of the Florida convictions to enhance his sentence violated his due process

rights; and (4) that he received ineffective assistance of counsel because his

attorney failed to call a witness who would have testified that the motorcycle was

driven recklessly.

      The magistrate judge issued findings and recommendations concluding that

Mr. Telles’s habeas petition should be denied. The magistrate informed Mr.

Telles that, pursuant to 28 U.S.C. § 636(b)(1), he had ten days to file written

objections. The magistrate judge explained that “[a] party must file any

objections with the clerk of the district court within the ten day period allowed if

that party wants to have appellate review of the proposed findings and

recommendations. If no objections are filed, no appellate review will be

allowed.” Rec. doc.11, at 11 (Proposed Findings and Recommended Disposition,

filed Nov. 23, 1999).

      Mr. Telles did not file objections. The district court then adopted the

magistrate’s findings and recommended disposition and denied Mr. Telles’s


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petition. After Mr. Telles filed his notice of appeal, this court issued an order

directing Mr. Telles to show why his appeal should not be dismissed for failure to

object to the magistrate’s findings and recommendations. Mr. Telles filed a brief

in response to the order, but it fails to explain why he did not file objections.

       “This circuit has adopted a firm waiver rule under which a party who fails

to make timely objection to the magistrate’s findings and recommendations

waives appellate review of both factual and legal questions.”         Talley v. Hesse , 91

F.3d 1411, 1412 (10th Cir. 1996);     see also Frontier Refining Inc. v. Gorman-

Rupp Co. , 136 F.3d 695, 706 (10th Cir. 1998). There are two exceptions to this

rule: (1) “when the magistrate’s order does not clearly apprise a pro se litigant of

the consequences of a failure to object,”     Talley , 91 F.3d at 1413; and (2) “when

the ends of justice dictate otherwise.”     Id.

       Neither exception is applicable here. The magistrate’s findings and

recommended disposition clearly informed Mr. Telles that the failure to file

written objections would result in waiver of appellate review. Moreover, with

one exception, the arguments raised by Mr. Telles in his appellate brief have been

thoroughly and persuasively rejected by the magistrate judge. Thus, the interests

of justice do not warrant excusing Mr. Telles from the waiver rule.       1




       1
        In his appellate brief, Mr. Telles argues that one of the Florida
convictions used to enhance his sentence has been dismissed and therefore cannot
                                                                       (continued...)

                                             -4-
      Accordingly, we DENY Mr Telles’s application for a certificate of

appealability and DISMISS this appeal.



                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




      1
        (...continued)
be used to enhance his sentence. See Aplt’s Br. at 4, 14. For several reasons, the
interests of justice do not warrant our considering this claim on the merits.
         First, Mr. Telles did not raise this issue in his federal habeas petition, and,
as a result, the magistrate judge did not address it. Additionally, the evidentiary
materials that Mr. Telles attaches to his appellate brief do not provide sufficient
support for this claim. In particular, one document indicates that, on February 25,
1994, a Florida court dismissed a charge for operating a motor vehicle without a
license. A second document indicates that, on June 2, 1994, the state announced
its intention to file a nolle prosequi on a Florida charge for driving under the
influence. Neither document establishes that the particular convictions on which
the New Mexico court relied in enhancing Mr. Telles’s sentence have been
vacated.


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