Loyd v. Snedeker , 119 F. App'x 257 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JAN 4 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
SHAWN PAUL LOYD,
Plaintiff-Appellant,
v.
No. 04-2140
(D.C. No. CIV-03-1158-WPJ/DJS)
PATRICK SNEDEKER, Warden, Lea
(New Mexico)
County Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Shawn Paul Loyd, proceeding pro se, appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition and seeks a certificate of
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
appealability (COA) from this court pursuant to 28 U.S.C. § 2253(c). Because
Mr. Loyd failed, in accordance with 28 U.S.C. § 636(b)(1), to file objections to
the magistrate judge’s findings and recommendation to the district court, he
waived his right to appeal the district court’s order and judgment. We therefore
deny his request for COA.
Mr. Loyd was convicted by a jury in New Mexico state court of first degree
murder and bribery of a witness. He was sentenced to a term of life imprisonment
plus eighteen months, to be served consecutively with a sentence he was serving
at the time of conviction. After unsuccessfully challenging his conviction and
sentence in state court, Mr. Loyd sought habeas relief in federal court.
In his habeas action, Mr. Loyd alleged (1) he was denied due process as a
result of the trial court’s erroneous admission of a hearsay statement, and the
court’s limitation of his cross-examination of a witness; and (2) insufficient
evidence was presented at trial to support either his conviction for first degree
murder or his conviction for bribery of a witness. The district court referred the
case to a magistrate judge who issued a proposed finding and recommendation
that Mr. Loyd’s petition be denied. The magistrate’s report specifically stated
that pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days upon receiving the
report to file written objections with the district court, and failure to do so would
bar their ability to seek appellate review of the court’s findings and
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recommendations. Neither party filed objections. The district court adopted the
magistrate judge’s report, and subsequently denied Mr. Loyd’s request for COA.
We issued a show cause order directing Mr. Loyd to address whether his failure to
file written objections to the magistrate judge’s report constituted a waiver of
appellate review.
Our court follows 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 Talley v. Hesse, 91 F.3d 1411, 1412-13
(10th Cir. 1996); Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
We do make exceptions to this rule “where the interests of justice so require,”
Fottler, 73 F.3d at 1065, or “when the magistrate’s order does not clearly apprise
the pro se litigant of the consequences of a failure to object.” Talley, 91 F.3d at
1413. This case falls easily within the ambit of the firm waiver rule.
In his submissions to us, and contrary to our show cause order, Mr. Loyd
provides absolutely no discussion regarding his failure to object to the magistrate
judge’s proposed findings and recommendations. Moreover, nothing in the record
on appeal persuades us that either exception to the firm waiver rule is applicable
here. First, in compliance with Talley, the magistrate’s recommendation clearly
indicated to the pro se Mr. Loyd that he was required to file objections within ten
days of receiving the proposed order, and that failure to do so would bar his
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ability to seek appellate review. Rec., doc. 13 at 1 n.1. Second, neither Mr.
Loyd’s arguments on appeal, nor any material in the record, convinces us that
application of the firm waiver rule in this case would be contrary to the interests
of justice.
Accordingly, COA is DENIED and the appeal DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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