* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### FEB 7 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. ALFRED J. ELLICK, Defendant - Appellant. No. 00-2163 (D.C. No. CIV-99-997-JC) (D.N.M.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **
Mr. Ellick seeks to appeal from the dismissal with prejudice of his 28 U.S.C. § 2255 motion to vacate, set aside or correc t his sentence. After he failed to object to the magistrate judge’s proposed findin gs and recommended disposition, the district court denied the motion and dismissed the action with prejudice.- 2 -

Mr. Ellick was convicted by a jury of conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. § 846, and se ntenced to 151 months. His conviction and sentence were affirmed on direct app eal. United States v. Ellick , No. 97-2163, 1998 WL 794971 (10th Cir. Nov. 16, 199 8). On February 1, 2000, the magistrate judge issued his proposed findings and recommended disposition that the motion be denied and the case dismissed wi th prejudice. Doc. 11. The magistrate informed Mr. Ellick of his ten days to o bject. 28 U.S.C. § 636(b)(1). Mr. Ellick then sought a 90-day extension in which to object, filed two motions requesting discovery, one requesting a psychologica l test, and one for a stay of proceedings. On March 14, 2000, the magistrate jud ge granted Mr. Ellick until April 10, 2000 to file his objections, and denied the other motions. Rather than file objections, seven days after the April 10, 200 0, deadline, Mr. Ellick then filed motion for leave to amend. On April 26, 2000, the district court adopted the proposed findings and recommended disposition and e ntered judgment. Mr. Ellick has filed a motion to expand the record, contending that he has justification for failing to object. First, he rel ies on a letter to the district court clerk asking that copies be mailed not only to him, but also to the “National Litigation Consultation” so that he might be assist ed. Also included is an unsigned letter from “National Litigation Consultat ion,” dated March 28, 2000, advising Mr. Ellick that “we need to appeal the den ial of the motions,” and- 3 -

indicating that an answer to the magistrate judge w ould be forthcoming. Although the waiver rule may be excused in the inte rests of justice, United States v. One Parcel of Real Prop. , 73 F.3d 1057, 1060-61 (10th Cir. 1996), we are not persuaded that it should be excused here. There is no constitutional right to counsel in § 2255 proceedings. Coleman v. Thomp son , 501 U.S. 722, 752 (1991) (§ 2254); Pennsylvania v. Finley , 481 U.S. 551, 555 (1987); United States v. Angelone , 894 F.2d 1129, 1130 (9th Cir. 1990). Although Mr . Ellick contends that he relied upon the “National Litigation Consul tation Law Firm,” at best the documents suggest a consulting service in lieu of i nmate assistance. The failure to object is in no way excused merely because Mr. E llick sought leave to amend his § 2255 motion two days after the deadline to object expired. See Doc. 18 at 2 (certificate of service). Mr. Ellick had from February 1, 2000, until April 10, 2000, to get his objections in–at some point during that period, it should have been apparent that those objections were not forthc oming from the “National Litigation Consultation.” Moreover, in seeking the extension of time, Mr. Ellick never discussed additional legal assistance; rather , he urged the need for additional discovery. The motion to expand the record is granted; the gov ernment’s motion to delay filing of answer brief until certificate of appealability is issued is denied as moot. The application for a certificate of appeala bility is denied and the appeal is- 4 -

dismissed. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge