F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-2079
(D.C. No. CIV-99-115-JC)
PHILLIP JASON RHOADS, also (D. N.M.)
known as Jason Waguespack, also
known as Phillip Burlington,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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This order and judgment is not binding precedent, except under the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.
Defendant Phillip Jason Rhoads, a federal prisoner proceeding pro se, seeks
review of the district court’s order adopting the magistrate judge’s
recommendation to deny relief on his motion to set aside his federal conviction,
filed pursuant to 28 U.S.C. § 2255. He also requests that this court appoint
counsel and provide him with copies of the file in the underlying criminal case.
Those requests are denied. Defendant failed to file objections to the magistrate
judge’s findings and recommendation. Therefore, he waived his right to appellate
review. Accordingly, this appeal is dismissed.
Defendant entered a guilty plea to charges of possession with intent to
distribute more than 100 grams of methamphetamine and carrying a firearm in
connection with the narcotics trafficking offense; other charges were dismissed.
He was sentenced to 248 months’ imprisonment. He did not file an appeal from
the conviction. In his § 2255 motion, he claimed (1) he was entitled to
presentence confinement credit, (2) the sentencing court erred by not departing
downward, (3) he was denied due process because he did not appear before the
federal grand jury, (4) his conviction violated double jeopardy, (5) his plea was
rendered involuntary by the breach of a promise of a shorter sentence, and (6) his
trial attorney provided constitutionally ineffective assistance of counsel.
On September 30, 1999, the magistrate judge issued findings and
recommended that the § 2255 motion be denied. That document contained a
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notice that any party could object to the findings and recommendation by filing
written objections within ten days of service. The notice further stated that
failure to file written objections would prevent appellate review of the
disposition. R. doc. 16, at 14.
A copy of the findings and recommendation was mailed to defendant, but
was returned as undeliverable by the Postal Service. On November 2, 1999, the
district court, having learned that defendant had been transferred to the federal
penitentiary in Florence, Colorado, mailed another copy of the magistrate judge’s
findings and recommendation to him there. Id. doc. 17. Then defendant filed a
notice of address change, confirming that he had been transferred to Florence,
Colorado. In an order entered January 18, 2000, the district court directed that
yet another copy of the magistrate judge’s findings and recommendation be sent
by certified mail to the address stated on defendant’s notice of address change,
which was substantially the same as the address to which the second mailing was
sent. Neither the second nor the third mailing was returned as undeliverable, and
a return receipt indicating an indecipherable signature was received by the district
court on January 26, 2000. Defendant claims he never received the magistrate
judge’s findings and recommendation. He did not file written objections.
This court has adopted a “firm waiver rule[:] the failure to make timely
objection to the magistrate’s findings or recommendations waives appellate
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review of both factual and legal questions.” Moore v. United States , 950 F.2d
656, 659 (10th Cir. 1991) (footnote omitted). The rule applies to pro se litigants
as long as the magistrate judge’s order notifies the parties of the consequences of
a failure to file written objections. Fottler v. United States , 73 F.3d 1064, 1065
(10th Cir. 1996). The rule is intended to promote judicial efficiency. Key Energy
Resources, Inc. v. Merrill (In re Key Energy Resources, Inc.) , 230 F.3d 1197,
1200 (10th Cir. 2000). There may be an exception to the waiver rule where the
interests of justice require it. Moore , 950 F.2d at 659; Theede v. United States
Dep’t of Labor , 172 F.3d 1262, 1268 (10th Cir. 1999).
In this case, the interests of justice do not require making an exception to
the waiver rule which would permit this court to review the merits. The district
court diligently mailed two copies of the magistrate judge’s findings and
recommendation to the defendant’s address at the federal penitentiary in Florence,
Colorado, neither of which were returned as undeliverable. Each time, the
deadline for filing objections was extended. Each time, the documents apprised
defendant of the consequences of a failure to object. Defendant’s failure to file
timely objections to the magistrate judge’s report and recommendation constitutes
a waiver of appeal.
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APPEAL DISMISSED. Defendant’s request for appointment of counsel
and for copies of his underlying criminal file are denied. The mandate shall issue
forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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