                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 3 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    CHRISTOPHER HILL,

                Petitioner - Appellant,

    v.                                                   No. 01-6080
                                                   (D.C. No. 00-CV-1513-W)
    DAYTON J. POPPELL, Warden,                         (W.D. Oklahoma)

                Respondent - Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , McKAY , 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); 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      This order and judgment is not binding precedent, except under the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.
      Appellant Christopher Hill is before this court seeking a certificate of

appealability (COA) and requesting in forma pauperis status. Until Hill obtains

a COA, he cannot appeal the district court’s denial of his 28 U.S.C. § 2254

petition. See 28 U.S.C. § 2253(c)(1)(A).

      After a jury trial, Hill was convicted in Oklahoma state court of one count

of illegal trafficking in controlled dangerous substances (crack cocaine) and

sentenced to ten years’ imprisonment and a fine of $25,000. On direct appeal, the

Oklahoma Court of Criminal Appeals rejected Hill’s argument that the evidence

was insufficient to support his conviction, and affirmed the judgment and

sentence of the trial court. Hill then filed the instant § 2254 habeas petition,

reasserting his insufficient evidence argument.

      In a thorough report and recommendation, the magistrate judge reviewed

the trial evidence, then analyzed Hill’s application under the standard set out in

§ 2254(d). The magistrate judge recommended denial of the petition, in that the

asserted claim had been adjudicated on the merits and the state court adjudication

had not

       (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

        (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.


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Id. ; see also Williams v. Taylor , 529 U.S. 362, 379-91 (2000) (discussing and

explaining the double-pronged § 2254(d) standard).

      When Hill failed to file objections to the magistrate judge’s

recommendation within the allotted time, the district court adopted the report and

recommendation, denied the petition for habeas corpus, and entered judgment in

favor of respondent. In his application for a COA, Hill asserts that he did not

object to the magistrate judge’s report and recommendation because he did not

receive a copy of it through the prison mail system. While this court has a firm

waiver rule, under which the failure to make timely objection to the magistrate’s

findings or recommendation waives appellate review of both legal and factual

issues, we need not apply the rule when the interests of justice dictate otherwise.

See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). We believe the

interests-of-justice exception is applicable here, and, accordingly, we turn to an

evaluation of the issues raised in Hill’s habeas petition.

      Hill is not entitled to a COA unless he can make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court rejected the asserted constitutional claims on the merits, Hill “must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong” or that the questions presented

deserve further proceedings.   Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).


                                          -3-
This court has reviewed Hill’s combined request for a COA, motion to proceed in

forma pauperis, and appellate brief; the magistrate judge’s order; and the entire

record before us (including the transcript of Hill’s jury trial). That review

demonstrates that the issues raised in Hill’s § 2254 habeas petition are not

debatable among jurists of reason, subject to a different resolution on appeal, or

deserving of further proceedings. Hill’s request for a COA is DENIED for

substantially those reasons set forth in the magistrate judge’s order dated

January 16, 2001. The motion to proceed in forma pauperis is also DENIED,

and this appeal is DISMISSED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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