Kenneth D. West, Petitioner-appellant, v. United States of America, Respondent-appellee, 21 F.3d 1123 (10th Cir. 1994)
Annotate this CasePetitioner Kenneth D. West, appearing pro se, appeals the district court's denial of his 28 U.S.C. 2255 motion to vacate, set aside, or correct sentence. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm.
In April 1992, Petitioner pleaded guilty to one count of possession of a sawed-off shotgun, 26 U.S.G. 5861(d), and was sentenced to forty-one months imprisonment. Petitioner's sentence was affirmed on direct appeal. In March 1993, Petitioner filed a 2255 motion in district court. In his motion, Petitioner presented four grounds for relief.3 After the government responded, the magistrate judge entered findings and recommendations, recommending denial of Petitioner's 2255 motion. The findings and recommendations included the following language:
By law, the parties are granted until the 9th day of July, 1993, within which to file an appeal/objection, failing which any review is waived and this may become the final order of the court without further notice.
(emphasis added). Petitioner failed to file any objections to the magistrate's findings and recommendations, and on July 13, 1993, the district court adopted the magistrate's recommendation and denied Petitioner's 2255 motion.
"We have adopted 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). Under this rule, the failure to make timely objection to the magistrate's findings or recommendations waives appellate review of both factual and legal questions." Id. This rule applies to pro se litigants, so long as the magistrate informs the litigant of the consequences of a failure to object. Id.
We conclude Petitioner has waived his right to appellate review by failing to object to the magistrate's findings and recommendations. The magistrate's order informed Petitioner, who appeared pro se, that if he failed to timely object, "any review is waived." Although we would prefer that the magistrate precisely indicate that failure to object results in "waiver of the right to appeal from a judgment of the district court based upon the findings and recommendations," see id., the magistrate's warning in this case was sufficient to put Petitioner on notice of the consequences of his failure to object.
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
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); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument
Petitioner claimed: (1) the trial court improperly imposed his sentence in violation of a guilty plea agreement, (2) the amendment to U.S.S.G. 3E1.1 should be applied retroactively to his sentence, (3) the trial court failed to advise Petitioner of the consequences of his plea, and (4) the trial court erred in "departing upward" based on U.S.S.G. 2K2.1(b) (5) without notifying Petitioner
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