United States v. Jackson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 18, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 05-1026
v. (District of Colorado)
(D.C. No. 02-B-1907)
DAVID L. JACKSON,

Defendant-Appellant.

ORDER

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

David L. Jackson, 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. The matter is before this court on Jackson’s request for a

certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(B) (providing

that no appeal may be taken from a “final order in a proceeding under section

2255” unless the movant first obtains a COA). Because Jackson 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), this court denies his request

for a COA and dismisses this appeal.
 Following a jury trial, Jackson was convicted of seven counts of

kidnapping, in violation of 18 U.S.C. § 1201(a)(5), and one count of using a

firearm during the commission of a crime of violence, in violation of

18 U.S.C. § 924(c)(1). This court affirmed Jackson’s convictions on direct

appeal. United States v. Jackson, 248 F.3d 1028, 1029, 1032 (10th Cir. 2001).

Jackson then filed the instant § 2255 motion, asserting that his trial and appellate

counsel were constitutionally ineffective. The matter was referred to a magistrate

judge for initial proceeding pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of the

Rules Governing Section 2255 Proceedings for the United States District Courts.

The magistrate judge concluded that an evidentiary hearing was necessary to

resolve Jackson’s § 2255 motion and, therefore, appointed counsel to represent

Jackson. See Rule 8(c) of the Rules Governing Section 2255 Proceedings for the

United States District Courts (“If an evidentiary hearing is warranted, the judge

must appoint an attorney to represent a moving party who qualifies to have

counsel appointed under 18 U.S.C. § 3006A.”).

After conducting an evidentiary hearing, the magistrate judge entered an

extensive and well-reasoned report, which recommended that the district court

deny Jackson’s motion. The magistrate judge concluded Jackson’s account of the

events surrounding his plea negotiations and the presentation of his defense at

trial was not credible. As to the plea negotiations, the magistrate judge found: (1)

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Jackson had never been offered a plea wherein he would plead guilty to the

weapons charge and the government would dismiss the kidnapping charges and

(2) counsel had adequately discussed the likely Guidelines sentence with Jackson

should Jackson proceed to trial and be convicted. As to counsel’s conduct at trial,

the magistrate judge found: (1) counsel investigated all plausible lines of defense

and was ready at trial to present his chosen defense; (2) counsel effectively cross-

examined prosecution witnesses; (3) counsel reviewed all discovery provided by

the prosecution and other documents obtained independently by the defense team;

(4) counsel did not arbitrarily agree with the prosecution to limit the length of the

trial; (5) counsel did pursue mental state defenses, the only viable defense

theories supported by the evidence; (6) counsel’s refusal to object to minor

matters at trial was a strategic decision and Jackson failed to identify any

prejudice flowing from the decision; and (7) it was Jackson’s decision not to

testify at trial. Finally, the magistrate judge concluded appellate counsel was not

ineffective in failing to raise non-meritorious issues on appeal.

Despite a warning in the magistrate judge’s report and recommendation that

failure to file timely objections with the district court would waive appellate

review of both legal and factual determinations, no objections were filed.

Accordingly, the district court adopted the report and recommendation and denied

Jackson’s § 2255 motion. In response, Jackson personally filed a belated request

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for extension of time to file objections to the report and recommendation. The

district court denied the request, noting that the Tenth Circuit strictly adhered to

the ten-day rule for objecting to a magistrate judge’s report and recommendation

and that Jackson’s counsel could have filed objections or a request for an

extension, but had decided not to do so.

This court has adopted a “firm waiver rule when a party fails to object to

the findings and recommendations of the magistrate” judge. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). This rule does not apply, however,

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, 1197 (10th Cir. 2004). Neither of

the exceptions to the firm waiver rule apply in this case. Jackson did not proceed

pro se in the district court, but was instead represented by appointed counsel. Nor

do the interests of justice require review. The magistrate judge thoroughly

analyzed Jackson’s motion and, after conducting an evidentiary hearing at which

it found Jackson’s testimony lacking in credibility, recommended that Jackson’s

motion be denied. This court observes no fundamental or obvious error in the

report and recommendation that would support disregarding the firm waiver rule.

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Jackson’s request for a COA is DENIED and this appeal is DISMISSED.

Entered for the Court
PATRICK FISHER, Clerk of Court

By
Deputy Clerk

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