                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           OCT 5 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 04-2081
 v.                                          (D.C. Nos. CIV-03-722-BB/LCS &
                                                     CR-01-1713-BB)
 JAMES H. GONZALES,                                      (D.N.M.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Petitioner-Appellant James Gonzales, an inmate appearing pro se, seeks to

appeal from the district court’s denial of his 28 U.S.C. § 2255 motion to vacate,

set aside, or correct his sentence. He seeks a certificate of appealability (COA).

28 U.S.C. § 2253(c)(2). Because we find that Mr. Gonzales waived his right to

appellate review by failing to file timely objections to the magistrate judge’s

report and recommendation, 28 U.S.C. § 636(b)(1), we deny a COA and dismiss

the appeal.

      Mr. Gonzales pleaded guilty to possession of a firearm in furtherance of a

drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(B)(ii). He was subsequently
sentenced to 30 years imprisonment and five years supervised release. Mr.

Gonzales filed a timely § 2255 motion, raising several issues all related to

ineffective assistance of counsel. R. Doc. 1, 2, 10. After reviewing the merits of

Mr. Gonzales’s claims, the magistrate judge, in a recommendation apparently

served on February 11, 2004, recommended that the motion be denied. R. Doc.

12. The magistrate judge’s report further stated, “A party must file any objections

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.” Id. at 11-12.

      On March 23, 2004, the district court adopted the magistrate’s report and

dismissed Mr. Gonzales’s motion and entered judgment. R. Doc. 13, 14. No

objections to the magistrate judge’s recommendation had been filed by either

party. Three weeks later, Mr. Gonzales filed a Notice of Appeal and Request for

COA, and the district court denied a COA. R. Doc. 15. We issued a show cause

order requiring Mr. Gonzales to address the apparent waiver issue in his opening

brief on appeal.

      The Tenth Circuit has a “firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate.” Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 155 (1985)

(“[A] court of appeals may adopt a rule conditioning appeal, when taken from a


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district court judgment that adopts a magistrate’s recommendation, upon the filing

of objections with the district court . . . .”). If the parties fail to make a timely

objection, 1 they “waive[] appellate review of both factual and legal questions.”

Moore, 950 F.2d at 659. However, this rule does not apply when (1) a pro se

litigant has not been informed of the time period for objecting and the

consequences of failing to object, Id., or (2) the interests of justice require

review, Wirsching v. Colorado, 360 F.3d 1191, 1997 (10th Cir. 2004).

      Neither of the exceptions to the firm waiver rule apply in this case. Mr.

Gonzales never filed objections to the magistrate’s findings and recommendation.

This despite the fact that the magistrate judge properly apprized Mr. Gonzales of

the time period for filing objections and the consequences of failure to do so.

Although Mr. Gonzales argues that the interests of justice exception should apply

because he is a layman and has been misdirected in the past by jailhouse lawyers,

he gives no specifics of any kind and our review of this matter fails to reveal any

“interest of justice” exception. Consequently, neither of the exceptions to our

firm waiver rule apply. See Fottler v. United States, 73 F.3d 1064, 1065 (10th

Cir. 1996). As noted, Mr. Gonzales had notice, and there is no right to counsel

for a § 2255 motion. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).


      1
        “Within ten days after being served with a copy, any party may serve and
file written objections to [the magistrate’s] proposed findings and
recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1).

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Accordingly, we DENY a COA and DISMISS the appeal.

                            Entered for the Court


                            Paul J. Kelly, Jr.
                            Circuit Judge




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