                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 12 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 EARNEST WAYNE SORRELL,

             Petitioner - Appellant,
                                                       No. 02-6266
 v.                                              D.C. No. CIV-02-196-HE
                                                    (W.D. Oklahoma)
 DAYTON J. POPPELL, Warden;
 DREW EDMONDSON,

             Respondents - Appellees.


                          ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.



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

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. P. 34(f) and 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        This order and judgment is not binding precedent, except under the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.
      Earnest Wayne Sorrell requests a certificate of appealability so that he may

appeal the district court’s denial of his petition filed pursuant to 28 U.S.C. §

2254. He essentially argues that he received inadequate assistance of counsel at

the time of his nolo contendere plea before state court.

      Before we can turn to Mr. Sorrell’s request, we note that Mr. Sorrell’s

notice of appeal to the Tenth Circuit was filed beyond the 30-day window

permitted under our rules. See Fed. R. App. P. 4(a)(1)(A) (noting that the notice

of appeal “must be filed ... within 30 days”). The 30-day window for the filing of

Mr. Sorrell’s notice of appeal closed on Monday August 19, 2002; his notice of

appeal was filed two days later on Wednesday August 21, 2002. The certificate

of mailing indicates that the notice of appeal was sent during the month of July

2002, but the exact date is left blank. Mr. Sorrell attested that he handed his

notice of appeal to prison officials on July 31, 2002. See Houston v. Lack, 487

U.S. 266, 275-76 (1988) (holding that a prisoner’s document could be regarded

as filed on the date it was delivered to prison officials for mailing); Fed. R. App.

P. 4(c). Mr. Sorrell’s attestations are uncontested. Therefore we hold that we

have jurisdiction in this case.

      Mr. Sorrell failed to raise any objections to the magistrate judge’s report

and recommendation, as he was required, by July 15, 2002. See Rec. doc. 7, at 12

(Dist. Ct. Order granting Mr. Sorrell extension of time to file objections to the


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Report and Recommendation). It is well established that “[f]ailure of a [party] to

object to a magistrate judge’s recommendations results in a waiver of appellate

review.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). Mr.

Sorrell’s pro se status does not protect him from application of this rule because

he was “properly informed of the consequences of his failure to object.” Id.; see

also Rec. doc. 7, (Mag. Judge Report and Recommendation, at 15) (“Petitioner is

further advised that failure to make timely objection to this Report and

Recommendation waives right to appellate review of both factual and legal issues

contained herein.”). Though an exception to the rule may be made “where the

interests of justice so require,” Fottler, 73 F.3d at 1065, our review of the record

leads us to conclude that the interests of justice do not require us to make an

exception in this case. Mr. Sorrell does not claim any circumstance for which the

interests of justice might dictate a review of the waived issues. Indeed, he fails to

provide any explanation whatsoever for his failure to object to the report and

recommendation, apart from his suggestions that for “reasons unknown” his

objections to the report and recommendation “did not reach the Court.” Aplt’s

Br. at 2. Mr. Sorrell has not made a substantial showing of a denial of a federal

right. He has raised no arguments which require further proceedings or that are

debatable among jurists of reason. See Slack v. McDaniel, 529 U.S. 473, 474

(2000).



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     Accordingly, Mr. Sorrell’s request for a certificate of appealability is

DENIED and his appeal is DISMISSED

                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




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