* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 o ral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 1 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CLARENCE R. SINGLETON, Defendant-Appelllant. No. 02-2157 (D.C. No. CIV-01-1215) (New Mexico)



### ORDER *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.
Mr. Clarence R. Singleton, proceeding pro se , appeals the district court’s denial of his 28 U.S.C. § 2255 habeas corpus petiti on and seeks a certificate of appealablity (COA) from this court. Because Mr. Si ngleton failed, in accordance with 28 U.S.C. § 636(b)(1), to file timely objectio ns to the magistrate judge’s findings and recommendation to the district court, we deny his request for a COA. Mr. Singleton was indicted with twenty-five other d efendants on twenty-1 Mr. Singleton’s request to withdraw his plea was de nied by the district

court and affirmed on appeal. See United States v. Hernandez , 216 F.3d 1088 (10th Cir. 2000) (unpub. op.).

2 Mr. Singleton did not specifically list this last c laim in his § 2255 petition. Nonetheless, the magistrate judge addressed the cla im noting that Mr. Singleton’s supporting brief, a document not included in the re cord on appeal, contained arguments regarding the search and seizure issue. -2- eight counts of various drug and drug related violations. He eventually entered a plea agreement pursuant to F ED
. R. C RIM
. P ROC . 11(e)(1)(C), under which he pled guilty to one count of conspiracy to possess and di stribute one kilogram or more of a substance containing a detectable amount of me thamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A), § 846. In accordanc e with the terms of his plea agreement, Mr. Singleton was sentenced to 210 month s in prison and five years of supervised release. 1 Mr. Singleton, along with two other co-conspirato rs, subsequently filed individual § 2255 petitions to v acate, set aside or correct their sentences. Mr. Singleton essentially alleged his p lea was not knowing and voluntary, claiming that his trial counsel was inef fective and that the trial court erred by not requiring a presentence report prior t o accepting his plea. He also argued his role in the conspiracy was overstated, r esulting in a disproportionally harsh sentence as compared to the sentences of othe r members in the conspiracy. Finally, he asserted the government’s search of his jail cell and seizure of legal papers constituted outrageous government conduct, v iolating his First, Fifth and Sixth Amendment rights and effectively coercing him to plead guilty. 23 Samuel J. Singleton, one of Mr. Singleton’s co-cons pirators, filed written

objections with the court after receiving an extens ion to May 10, 2002. Petitioner Clarence Singleton’s objections were not only filed beyond the time granted to Samuel Singleton, they were filed after the district court adopted the magistrate judge’s report on May 13, 2002. -3- The district court consolidated the petitions of Mr . Singleton and his coconspirators, and referred them to a magistrate jud ge. On March 27, 2002, the magistrate judge issued findings and a recommendati on denying the parties’ claims for relief. The magistrate’s report specifi cally indicated that pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days upo n receiving the report to file written objections with the district court, and that failure to do so would bar their ability to seek appellate review of the court’s fin dings and recommendations. Mr. Singleton did not submit written objections to the district court until May 17, 2002, long after the ten day filing period had expi red, so they were stricken as untimely. 3 Mr. Singleton nonetheless brings this appeal, cha llenging the district court’s denial of his § 2255 petition. Mr. Singleton is precluded from appealing the distr ict court’s order under this circuit’s firm waiver rule, which holds that aparty’s failure to timely object to a magistrate judge’s report and recommendation b ars the party from seeking appellate review of the district court’s order. See Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996); Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). We do make exceptions to the firm waiver ru le “where the interests of4 In light of our denial of a COA, we need not addres s Mr. Singleton’s

motions to file supplemental and reply briefs, or h is motion to adopt Samuel J. Singleton’s brief regarding the government’s search of his jail cell. -4- justice so require,” Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996), or where “the magistrate’s order does not clearly apprise a pro se litigant of the consequences of a failure to object.” Talley , 91 F.3d at 1413. However, this is not such a case. The magistrate judge’s report cle arly told Mr. Singleton he had ten days in which to file his objections or waive h is right to appeal. Mr. Singleton failed to file his written objections wit hin the time allotted by statute, or even within the extended time granted to his co- conspirator. Moreover, Mr. Singleton has failed to present any argument indicating the interests of justice require us to address his claims. Accordingly, we DENY Mr. Singleton’s request for a COA. 4
ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge