* This order is not binding precedent except under the doctrines of law of the

case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 

FILED

United States Court of Appeals

Tenth Circuit

March 12, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FILIBERTO ARROYO-GONZALES,

Defendant-Appellant.

No. 07-2221

(D.C. Nos. CIV-05-630 JP/KBM &

CR-03-2570 JP)

(D. N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.**

Filiberto Arroyo-Gonzales, a federal prisoner appearing pro se, seeks a

certificate of appealability (COA) that would allow him to appeal the district

court’s dismissal of his motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255. Applying this court’s firm waiver rule, we deny

Mr. Arroyo-Gonzales’s request for a COA and dismiss his appeal. 
1 The district court’s final order on Mr. Arroyo-Gonzales’s § 2255 motion is

subject to review on appeal only if the district court or this court first issues a

COA. 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, a prisoner must make “a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). See

also Slack v. McDaniel, 529 U.S. 473, 483-85 (2000) (elaborating on “substantial

showing” standard).

-2-

BACKGROUND

Mr. Arroyo-Gonzales filed the instant § 2255 motion seeking relief from an

87-month sentence that was imposed after he pleaded guilty to conspiracy to

distribute 50 grams or more of a mixture or substance containing a detectable

amount of methamphetamine. The magistrate judge to whom the § 2255 motion

was referred recommended the motion “be dismissed as time-barred and,

alternatively, as without merit.” R., Vol. I, Doc. 18 at 6. Mr. Arroyo-Gonzales

did not file an objection to the magistrate judge’s recommendation. The district

court adopted the recommendation and dismissed the case with prejudice. 

Thereafter, the district court denied Mr. Arroyo-Gonzales’s request for a

COA.1

 Once the appeal was docketed, this court sought and received briefing on

whether Mr. Arroyo-Gonzales had waived appellate review by failing to object to

the magistrate judge’s recommendation.

ANALYSIS

“This court has adopted a firm waiver rule under which a party who fails to

make a timely objection to the magistrate judge’s findings and recommendations

waives appellate review of both factual and legal questions.” Morales-Fernandez
-3-

v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (citing Moore v. United States,

950 F.2d 656, 659 (10th Cir. 1991)). There are two exceptions to the firm waiver

rule but neither applies in this case. 

The first exception applies when “a pro se litigant has not been informed of

the time period for objecting and the consequences of failing to object.”

Morales-Fernandez, 418 F.3d at 1119. Here, the magistrate judge unambiguously

advised Mr. Arroyo-Gonzales of these conditions. R., Vol. I, Doc. 18 at 6-7. 

Thus, the first exception is inapplicable.

The second exception applies when “the interests of justice require review.”

Morales-Fernandez, 418 F.3d at 1119 (quotation omitted); see also Moore,

950 F.2d at 659 (explaining that because the “firm waiver rule” is procedural

rather than jurisdictional, we may decline to apply it in cases where “the interests

of justice so dictate”). “Although interests of justice is a rather elusive concept,

we have considered factors such as a pro se litigant’s effort to comply, the force

and plausibility of the explanation for his failure to comply, and the importance

of the issues raised.” Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)

(citation and quotation omitted). When considering 

whether the importance of the issues raised might trigger the interests

of justice exception, we have said that, in many respects, the interests

of justice analysis we have developed, which expressly includes

review of a litigant’s unobjected-to substantive claims on the merits,

is similar to reviewing for plain error.
-4-

Id. (alternation and quotation omitted). To show plain error,

Mr. Arroyo-Gonzales “would have to show (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotation omitted). 

As noted, this court ordered both parties to file memoranda addressing

whether Mr. Arroyo-Gonzales had waived appellate review by failing to object to

the magistrate judge’s recommendation. In response, Mr. Arroyo-Gonzales does

not claim that he was unaware of either the time period for objecting or the

consequences of failing to object. Nor does he assert that he sought an extension

of the time period. Rather, he submits that he has had to rely on the assistance of

other inmates because he is not fluent in English, that he does not have any

knowledge of the legal system, and that a 10-day time period is not long enough

because the prison law library has only six working typewriters. He claims he

should therefore not be blamed for failing to file a written objection. While we

appreciate the difficulties of proceeding pro se, we are unpersuaded by 

Mr. Arroyo-Gonzales’s explanation. See generally United States v. Prows,

448 F.3d 1223, 1229 (10th Cir. 2006) (“[T]here is no right to counsel in collateral

proceedings[.]”); Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir. 1978) (A pro se

prisoner’s case is “not prejudiced by the filing of [a] handwritten brief[]” and

“[a]ccess to the courts does not include a federally protected right to use a

typewriter[.]”). Cf. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
2 On appeal, Mr. Arroyo-Gonzales does not take issue with the district

court’s adoption of the magistrate judge’s recommendation that his § 2255 motion

be dismissed as untimely. Aplt. Br. at 1-10.

-5-

(“[I]gnorance of the law, even for an incarcerated pro se prisoner, generally does

not excuse prompt filing.” (quotation omitted)). Further, having carefully

reviewed Mr. Arroyo-Gonzales’s filings and the record, we conclude that he has

not identified, nor can we discern a basis to apply the “interests of justice”

exception. That is, the district court did not commit plain error in adopting the

magistrate judge’s recommendation that Mr. Arroyo-Gonzales’s § 2255 motion

“be dismissed . . . as without merit.” R., Vol. I, Doc. 18 at 6; id. at 4-6.2

 

CONCLUSION

Mr. Arroyo-Gonzales’s request for a COA is DENIED and his appeal is

DISMISSED.

Entered for the Court

Bobby R. Baldock

Circuit Judge