UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

VICTOR LUIS CASTILLO-ROSALES, 

 Petitioner - Appellant, 

v. 

JERRY ROARK, Warden, BCCF; THE 

ATTORNEY GENERAL OF THE STATE 

OF COLORADO, 

 Respondents - Appellees. 

No. 21-1378 

(D.C. No. 1:21-CV-01930-LTB-GPG) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before BACHARACH, MURPHY, and CARSON, Circuit Judges. 

_________________________________ 

Petitioner Victor Luis Castillo-Rosales, a state prisoner appearing pro se, seeks 

a certificate of appealability to appeal the district court’s order denying his request 

for relief under 28 U.S.C. § 2254. We exercise jurisdiction under 28 U.S.C. 

§§ 1291 and 2253(a), deny Petitioner’s request for a certificate of appealability, and 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. This order and judgment 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 20, 2022

Christopher M. Wolpert 

Clerk of Court

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dismiss the appeal. We construe Petitioner’s filings liberally, but we do not act as his 

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 

A Colorado jury convicted Petitioner for sexual assault on a child by one in a 

position of trust. Petitioner filed this habeas petition, asserting due process 

violations. Respondents moved to dismiss, arguing that the one-year limitation 

period barred Petitioner’s claim. The magistrate judge recommended that the district 

court deny the application as untimely and advised the parties that they had fourteen 

days in which to file objections to the report and recommendation. The magistrate 

judge warned that failing to timely file objections would bar the party from appealing 

the recommendation’s findings and conclusions adopted by the district judge. 

Petitioner never objected to the report and recommendation. So the district 

court adopted the magistrate judge’s report and recommendation that Petitioner’s 

application be dismissed as untimely and not subject to equitable tolling. The district 

court declined to issue a certificate of appealability. 

Under our “firm waiver rule,” “the failure to timely object to a magistrate 

judge’s finding and recommendations waives appellate review of both factual and 

legal questions.” Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015) (quotations 

omitted). Two exceptions to the rule exist: (1) when “a pro se litigant has not been 

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

and (2) when “the interests of justice require review.” Duffield v. Jackson, 545 F.3d 

1234, 1237 (10th Cir. 2008) (emphasis and quotations omitted). Factors we consider 

for the second exception include “a pro se litigant’s effort to comply [with the 

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objection requirement], the force and plausibility of the explanation for his failure to 

comply, and the importance of the issues raised.” Morales-Fernandez v. I.N.S., 418 

F.3d 1116, 1120 (10th Cir. 2005) (emphasis omitted). Our “interest of justice 

standard, at a minimum, includes plain error.” Id. at 1122. Plain error has four 

elements: “(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. at 1122–23. 

To review a district court’s denial of a § 2254 application, we must grant a 

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We will not issue a 

certificate of appealability unless Petitioner makes “a substantial showing of the 

denial of a constitutional right,” § 2253(c)(2), and shows “that reasonable jurists 

could debate whether . . . the petition should have been resolved in a different manner 

or that the issues presented were adequate to deserve encouragement to proceed 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Where, 

as here, the district court dismissed claims on procedural grounds, we will issue a 

certificate of appealability only if Petitioner can show both “that jurists of reason 

would find it debatable whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling.” Id. 

Petitioner has waived any right to appeal under the firm waiver rule. He did 

not object to the magistrate judge’s report and recommendation. The first exception 

to the firm waiver rule is inapplicable here because the magistrate judge informed 

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Petitioner that he had fourteen days to object to the recommendation and noted that 

failing to do so would waive appellate review. 

The second exception does not apply either. In his opening brief, Petitioner 

never mentioned his failure to object to the report and recommendation. Only when 

responding to our Show Cause Order did Petitioner address the delay. Petitioner tells 

us that he is a “[M]exican-[S]panish national” who barely speaks and understands 

“the [A]merican language.” He says, “I[t] is assumed that when appellant received 

the magistrate[’]s recommendation . . . appellant did not comprehend the [E]nglish 

language and until now appellant seeks legal assistance from the BCF facility law 

library clerks.” 

The interests of justice do not require review when the petitioner is unfamiliar 

with the English language. Indeed, in the equitable tolling context, we have said that 

lack of English-language proficiency does not warrant equitable tolling. Yang, 525 

F.3d at 929 (finding a petitioner’s “limited English” did not justify tolling); see also 

Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (explaining that dyslexia 

does not toll a statute of limitations). Nor has Petitioner shown how he tried to 

comply with the objection requirement. In his response to the Show Cause Order, he 

stated that he did not seek legal assistance from the law library until writing his 

response to that order. 

The firm waiver rule bars our appellate review and precludes granting a 

certificate of appealability. We thus deny Petitioner’s request for a certificate of 

appealability and to proceed in forma pauperis. 

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DISMISSED. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

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