                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                      January 26, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court


 RO BERT C. OCH S,

                  Petitioner-A ppellant,                  No. 06-2144
          v.                                              (D. of N.M .)
 STANLEY M OYA, New M exico                    (D.C. No. CIV-05-337-M V/RH S)
 Penitentiary W arden, and ATTO RN EY
 G EN ER AL FO R TH E STA TE OF
 N EW M EX IC O,

                  Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


               Before HA RTZ, EBEL, and TYM KOVICH, Circuit Judges. **




      Robert Ochs is a state prisoner incarcerated at the N ew M exico Penitentiary

in Santa Fe. Proceeding pro se, he seeks a certificate of appealability (COA) to

appeal the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of




      *
        This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
habeas corpus. The district court denied the petition on the basis of the Report

and Recommendation of the magistrate judge, who concluded Ochs’s petition was

without merit. Because Ochs failed to object to the recommendation of the

magistrate judge, we conclude he has waived his right to appellate review and,

accordingly, we deny his request for a COA.

                                  I. Background

      Following a trial by jury in 2003, Ochs was convicted of arson and

tampering with evidence. The trial court sentenced him to ten-and-one-half years

imprisonment. In New M exico, arson consists of “starting a fire . . . with the

purpose of destroying or damaging property of another.” N.M .S.A. § 30-17-5-

(A). Ochs apparently set fire to a Ford Taurus that the State at trial established

belonged to his grandfather. There was disputed testimony on the issue, however,

and Ochs’s grandfather testified “he had given the car to M r. Ochs and that he

considered the car M r Ochs’ to do with as he wished.”

      Nevertheless, the N ew M exico C ourt of A ppeals affirmed Ochs’s

conviction and the New M exico Supreme Court denied his request for a writ of

certiorari. Ochs’s state habeas petition was subsequently denied and Ochs did not

appeal that decision. He filed his federal habeas petition in M arch 2005, which

the magistrate judge construed as a claim seeking reversal of conviction on

grounds of insufficient evidence. New M exico filed a motion to dismiss.




                                         -2-
      After reviewing the record, the magistrate judge concluded that Ochs’s

submission failed to meet the standard under § 2254(d)(2), which allows a federal

court to grant habeas relief in a state case only if the state decision “was based on

an unreasonable determination of the facts in light of the evidence presented in

the state court proceeding.” The magistrate judge noted at trial the parties

presented disputed evidence as to who owned the damaged car— the State’s

evidence showing Ochs’s grandfather held title to the car whereas the grandfather

testified he had given the car to Ochs as a gift. Nevertheless, the magistrate judge

reasoned it was not the province of the reviewing court to “weigh conflicting

evidence nor consider the credibility of the witnesses. Rather, the Court must

accept the jury’s resolution of the evidence as long as it is within the bounds of

reason.” M esser v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (internal

quotation omitted). Concluding Ochs was unable to make the requisite showing

of unreasonableness under § 2254(d)(2), the magistrate judge recommended

Ochs’s petition be dismissed.

      The magistrate judge’s R eport and Recommendation further provided that:

      W ithin ten days after a party is served with a copy of these proposed
      findings and recommendations that party may, pursuant to 28 U.S.C.
      § 636(b)(1), file written objections to such proposed findings and
      recommendations. A party must file objections within the ten day
      period allow ed 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.




                                      -3-
M ag. J. R& R at 5–6 (emphasis added). It is undisputed that Ochs did not file

objections to the magistrate judge’s Report & Recommendation.

                                     II. Discussion

      By failing to file written objections to the magistrate judge’s Report and

Recommendation, Ochs waived his right to appellate review of the determinations

of law and fact made by the courts below. See Key Energy Resources, Inc. v.

M errill, 230 F.3d 1197, 1199–1200 (10th Cir. 2000); Vega v. Suthers 195 F.3d

573, 579–80 (10th Cir. 1999); Theede v. United States Dep’t of Labor, 172 F.3d

1262, 1265–68 (10th Cir. 1999). The waiver rule applies with equal force to a

pro se party provided he “was properly informed of the consequences of his

failure to object,” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996),

unless the “interests of justice” require review. M orales-Fernandez v. INS, 418

F.3d 1116, 1119 (10 th Cir. 2005).

      The magistrate judge’s R eport and Recommendation was explicit in its

adoption of the waiver rule and thus w e conclude that Ochs w as “properly

informed” of the consequences for failing to object. Nor has Ochs provided any

reason excusing our requirement that he file specific objections to the Report and

Recommendation that would satisfy the interests of justice exception.

Accordingly, Ochs waived his right to appellate review of the district court’s

factual and legal determinations.




                                          -4-
                                III. Conclusion

      For the reasons stated above, we conclude Ochs w aived his right to

appellate review and D EN Y his request for a COA.

                                     Entered for the Court

                                     Timothy M . Tymkovich
                                     Circuit Judge




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