                                                                           F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       October 12, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court



 HERBERT OLIVER SPELLER,

               Petitioner-A ppellant,                     No. 06-1159
          v.                                              (D . of Colo.)
 H. A. RIOS, JR., W arden,                   (D.C. No. 05-CV-1511-LTB (CBS))

               Respondent-Appellee.




                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **




      Herbert Oliver Speller, a federal inmate proceeding pro se, appeals the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
U.S.C. § 2241. 1 Applying this Circuit’s “firm waiver” rule, we affirm the district

court’s order and dismiss this appeal. 2

      M r. Speller is incarcerated at the United States Bureau of Prisons facility in

Florence, Colorado. After a hearing, he was found guilty of assaulting another

inmate and sanctioned with the loss of 27 days of good time credit. Speller filed

a habeas petition seeking to expunge the disciplinary conviction from his record

and to restore the lost good time credits. He asserted that the disciplinary

proceedings violated his due process rights because a witness he requested did not

testify on his behalf.

      After reviewing the merits, the m agistrate judge of the district court

recommended that the habeas petition be denied. The magistrate judge found that

the requested witness was (1) medically unable to testify as he was in a coma-like

state at the time of the hearing, and (2) his testimony would have been repetitive

in any event. On M arch 9, 2006, the magistrate judge filed his findings and

recommendation with the district court. Speller was advised to file any objections

to the report with the district court within ten days. The magistrate judge warned,



      1
         Although Speller seeks a certificate of appealability, one is not necessary
for federal prisoners proceeding under 28 U.S.C. § 2241. M cIntosh v. United
States Parole Comm’n, 115 F.3d 809, 810 (10th Cir. 1997).
      2
         Speller additionally renews his motion to proceed in forma pauperis
(IFP), which was denied in the district court for failure to file the requisite
financial information. For the reasons set out in this opinion, we also reject his
IFP motion.

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“Failure to make timely objections may bar de novo review by the district judge

of the magistrate judge’s proposed findings and recommendations and will result

in a waiver of the right to appeal from a judgment of the district court based on

the proposed findings and recommendations of the magistrate judge.” R. vol. I,

doc. 28, at 6.

       Speller filed no objections with the district court, which accepted the

magistrate judge’s findings and recommendation and dismissed the action.

Speller filed a notice of appeal on April 17, 2006.

       W e apply a “firm waiver rule under which a party who fails to make a

timely objection to the magistrate judge’s findings and recommendation waives

appellate review of both factual and legal questions.” M orales-Fernandez v. INS,

418 F.3d 1116, 1119 (10th Cir. 2005). The rule does not apply when (1) a pro se

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

consequence of failing to object, or when (2) the “interests of justice” require

review. Id.

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

the first exception, Speller filed no objections with the district court despite the

magistrate judge’s specific admonition that his appellate rights could be lost.

       M oreover, the “interests of justice” exception also does not apply. As the

magistrate judge found, Speller had two other witnesses testify on his behalf,

neither of whom provided exculpatory evidence. Speller makes no showing that

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the requested witness would have provided different or even helpful testimony.

M oreover, the Supreme Court makes clear that the ability to call witnesses in the

prison disciplinary hearing context is not absolute. Wolff v. M cDonnell, 418 U.S.

539, 566–73 (1974) (noting that the interests in institutional safety and swift

punishment of prisoners may sometimes outweigh the need for prisoners to have

an unrestricted right to call witnesses). Finally, even if the hearing officer could

somehow have arranged for the witness to testify, ample evidence supported

Speller’s conviction. Gwinn v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004)

(Due process requires only “some evidence to support the hearing panel’s

decision.”). Speller essentially admitted his involvement in the assault on two

occasions and medical records indicate that he suffered injuries consistent with a

physical altercation.

      Accordingly, we A FFIRM the district court’s order, DENY Speller’s

motion to proceed in forma pauperis, and DISM ISS this action.

                                        Entered for the Court


                                        Timothy M . Tymkovich
                                        Circuit Judge




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