                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 23, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 RONALD R. VEAL,

          Petitioner-Appellant,

 v.
                                                         No. 09-6290
                                                  (D.C. No. 5:09-CV-369-F)
 JUSTIN JONES,
                                                        (W.D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Ronald R. Veal, an Oklahoma state prisoner, was found guilty in a prison

disciplinary proceeding of “Individual Disruptive Behavior” (in his case, “running

from or resisting apprehension within facility”), resulting in the loss of 365

earned sentence credits. Mr. Veal then filed in federal district court a pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging his

credits were revoked without due process. Specifically, he claimed the evidence

didn’t support a finding of resisting apprehension, but rather only a lesser charge,



      *
        This order is not binding precedent except under the doctrines of law of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.
such as destruction of evidence. The magistrate judge concluded that at least

“some evidence” supported the disciplinary board’s decision, Superintendent,

Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985), and so recommended that Mr.

Veal’s petition be denied. Despite the magistrate judge’s warning that failure to

object would result in waiver of appellate review, Mr. Veal lodged no objection to

her report and recommendation. The district court thus adopted the report and

recommendation and denied Mr. Veal’s habeas petition. Mr. Veal now seeks

from us a certificate of appealability (“COA”) to appeal this decision.

      To appeal the denial of a habeas petition brought under § 2241, a state

prisoner must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v.

McKinna, 208 F.3d 862, 869 (10th Cir. 2000). A petitioner must meet a high

standard to obtain a COA, which may issue only if the petitioner has made “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), such that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Mr. Veal’s burden is greater still, however, because he

failed to object to the magistrate judge’s report and recommendation. Our court

has adopted a firm waiver rule, holding that “a party who fails to make a timely

objection to the magistrate judge’s findings and recommendations waives

appellate review of both factual and legal questions.” Morales-Fernandez v.

I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). Still, this rule is inapplicable when

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“(1) a pro se litigant has not been informed of the time period for objecting and

the consequences of failing to object, or when (2) the ‘interests of justice’ require

review.” Id.

      To determine whether either of those circumstances exists here, this court

ordered Mr. Veal to show cause why his appeal should not be dismissed on

waiver grounds. But, so far as we can discern, Mr. Veal’s response argues only

the merits of his case rather than the waiver issue. We thus must conclude that he

has failed to preserve any issue for appellate review.

      Even so, as a pro se litigant Mr. Veal is nonetheless entitled to plain error

review of his case. See id. at 1122. “Plain error occurs when there is (1) error (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1122-

23. While we afford Mr. Veal’s pro se pleadings a solicitous reading, see Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), in the end we are

unable to say the district court committed error, let alone plain error, sufficient to

warrant issuance of a COA. The simple fact is that, as the magistrate judge ably

explained and the district court adopted, there was considerable evidence to

support Mr. Veal’s disciplinary conviction for resisting apprehension.

      We deny Mr. Veal’s application for a COA and dismiss his appeal.

Further, because we agree with the district court’s assessment that his appeal




                                          -3-
lacks any good faith basis, see 28 U.S.C. § 1915(a)(3), we deny his motion for

leave to proceed in forma pauperis.

                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




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