United States v. Williams ( 1999 )


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  •                                                                         F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             JUL 12 1999
                                       TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                   Clerk
    
    
    UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
                                                           No. 98-4112
    v.                                                   (District of Utah)
                                                     (D.C. No. 96-CR-0114-B)
    FREDERICK SHAWN WILLIAMS,
    
              Defendant-Appellant.
    
    
    
    
                                    ORDER AND JUDGMENT *
    
    
    Before TACHA, McKAY, and MURPHY, Circuit Judges.
    
    
    
          During the early morning hours of June 11, 1996, Deputy Sheriff Phil
    
    Barney stopped a vehicle traveling five miles in excess of the posted speed limit.
    
    During this traffic stop, Barney discovered that the driver, Frederick Shawn
    
    Williams, was driving on a suspended driver’s license in violation of Utah Code
    
    Ann. § 53-3-227(1). Barney arrested Williams and conducted a search incident to
    
    
    
          *
           This order and judgment is not binding precedent, except under the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.
    the arrest. During this search, Barney discovered several bottles of PCP in
    
    Williams’ car. Williams entered a guilty plea conditioned upon his right to appeal
    
    issues related to the district court’s denial of his motion to suppress evidence.
    
    This appeal followed. Exercising jurisdiction under 28 U.S.C. § 1291, this court
    
    AFFIRMS.
    
          The government argues that by failing to file specific objections to the
    
    magistrate judges’s Report and Recommendation (“R&R”), Williams waived his
    
    right to appeal the substantive issues addressed in the R&R, issued on August 28,
    
    1997 and adopted by the district court on October 2, 1997. The magistrate judge
    
    had recommended that Williams’ motion to suppress be denied. In his R&R, the
    
    magistrate judge notified the parties of their right to object to the R&R and that
    
    any objections must be filed within 10 days. The magistrate judge added that
    
    “[f]ailure to file objections may constitute a waiver of those objections on
    
    subsequent appellate review.” On the last day to file objections, counsel for
    
    Williams filed a general objection to the R&R and moved for dismissal of the
    
    case. It appears that the district judge charitably characterized this motion as also
    
    containing a request for an extension of time in which to file specific objections.
    
    Counsel, however, stated only that: “Defendant also objects to the substantive
    
    analysis of the [R&R]. Defendant’s counsel will submit a supporting legal
    
    Memorandum both to the Motion to Dismiss and the Objection to [the R&R] as
    
    
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    further support of Defendant’s position within fifteen (15) days.” Counsel for
    
    Williams listed no reasons for this “request” for an extension. On September 19,
    
    nine days after the objections were due, counsel for Williams filed a formal
    
    motion requesting an extension of time, explaining that he needed an additional
    
    two or three weeks 1 to file a detailed memorandum in support of the general
    
    objection to the R&R because he was very busy with other cases. On October 2,
    
    1997, the district judge denied Williams’ motions for dismissal and extension of
    
    time and adopted the R&R.
    
          This circuit has adopted the “firm waiver rule” which “provides that the
    
    failure to make a timely objection to the magistrate’s findings or
    
    recommendations waives appellate review of both factual and legal questions.”
    
    See Moore v. United States, 
    950 F.2d 656
    , 659 (10th Cir. 1991). Objections to
    
    the magistrate’s report cannot be general. Rather, the objections to the R&R must
    
    be specific enough to focus the district court’s attention on the factual and legal
    
    issues in dispute. See United States v. 2121 East 30th Street, 
    73 F.3d 1057
    , 1060
    
    (10th Cir. 1996). This firm waiver rule may not apply, however, if the “interests
    
    of justice so dictate.” See Moore, 950 F.2d at 659. The interests of justice
    
    exception is very narrow. See, e.g., id. (holding that waiver rule does not apply
    
    
          1
            Counsel twice requested a “two (3) week extension.” This court is unable
    to ascertain which number constitutes a typographical error and we decline to
    guess.
    
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    when magistrate’s order fails to inform pro se litigant of consequences of failure
    
    to file objections to R&R); Kent v. Johnson, 
    821 F.2d 1220
    , 1223 (6th Cir. 1987)
    
    (unrefuted allegation of delayed receipt of an R&R should be considered in
    
    weighing interests of justice).
    
          Williams responds that this is a case in which the interests of justice
    
    exception to the firm waiver applies. 2 He argues that the magistrate’s R&R only
    
    stated that the failure to file objections to the R&R “may” constitute a waiver of
    
    the issues on appeal; it did not state that such failure “shall” constitute a waiver.
    
    Williams cites no authority for the proposition that the use of “may” rather than
    
    “shall” affects the stringent application of the waiver rule absent reasons invoking
    
    the interests-of-justice exception. Moreover, the R&R stated that the parties
    
    “must” file objections within 10 days. That the consequences were couched in
    
    terms of “may” does not excuse Williams’ failure to comply with the “must.”
    
    Finally, we note that this court had no problem with a similar instruction
    
    containing the word “may” as it applied to the waiver of factual findings. See
    
    Talley v. Hesse, 
    91 F.3d 1411
    , 1413 (10th Cir. 1996) (“Failure to file written
    
    
          2
           Williams does not challenge the district court’s unexplained denial of his
    motion for extension of time, if the September 10, 1997, motion can be taken as
    such. Although we recommend that denials of such motions be accompanied by
    explanations, we will not reach out to create and then decide issues when an
    appealing party has not appealed from an adverse ruling. See Snell v. Tunnell,
    
    920 F.2d 673
    , 676 (10th Cir. 1990).
    
    
                                              -4-
    objections . . . may bar the aggrieved party from appealing the factual findings of
    
    the Magistrate Judge . . . .” (emphasis added)).
    
          Williams also argues that the interests-of-justice exception applies in this
    
    case because counsel’s failure to timely file objections to the R&R were not due
    
    to “inexcusable neglect or lack of diligence.” Rather, he argues that because
    
    counsel was busy with other cases, he diligently filed a request for an extension.
    
    First, we note that counsel stated in the September 10, 1997 motion that he would
    
    file specific objections within 15 days; no request for an extension of time was
    
    ever made. Even if the district judge interpreted this statement as a request for an
    
    extension of time, we note that Williams’ counsel failed to include any
    
    explanation supporting this request for an extension. See Utah Dist. Ct. R. 7-1
    
    (requiring motion to include a summary of the factual and legal bases for the
    
    motion). Finally, although counsel may well have had justifiable reasons for
    
    failing to timely file objections, these are not sufficient to invoke the interests of
    
    justice exception, especially because counsel failed to timely file an adequate
    
    motion seeking permission to file objections late. See also Tempelman v. United
    
    States Postal Serv., No. 92-1111, 
    1992 WL 369915
    , * 2 (1st Cir. Dec. 16, 1992)
    
    (unpublished disposition) (rejecting counsel’s argument that his participation in
    
    an another “arduous proceeding” satisfied the interests-of-justice exception,
    
    especially because he could have filed a motion requesting extension). Were this
    
    
                                               -5-
    court to hold otherwise, the firm waiver rule would become rather infirm as
    
    almost all busy attorneys could excuse their delay.
    
          Accordingly, we hold that Williams waived appellate review by failing to
    
    file specific objections to the magistrate judge’s R&R. The judgment of the
    
    United States District Court of Utah is AFFIRMED.
    
                                           ENTERED FOR THE COURT:
    
    
    
                                           Michael R. Murphy
                                           Circuit Judge
    
    
    
    
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