UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ VICTOR LUIS CAST ILLO-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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BACHARACH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Petitioner Victor Luis Castil lo-Rosales, a state prisone r appearing pro se, seeks a certificate of appealability to appeal the district cour t’s order denying his request for relief under 28 U.S.C. § 2254. We exercise jurisdicti on under 28 U.S.C. §§ 1291 and 2253(a), deny Petitioner’s request for a certificate of appealability, and

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 12 dismiss the appeal. We constr ue Petitioner’s filings libera lly, 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 fo r sexual assault on a child by one in a position of trust. Petitioner filed this habeas petition, as serting due process violations. Respondents m oved to dismiss, arguing that the one-year limitation period barred Petitioner’s claim. The magistrate judge r ecommended that the district court deny the application as untimely and advised the partie s that they had fourteen days in which to file objec tions to the report and reco mmendation. The magistrate judge warned that failing to timely file objections would bar th e party from appealing the recommendation’s findings and conclu sions adopted by the district judge. Petitioner never objected to the report a nd recommendation. So the district court adopted the magistra te judge’s report and reco mmendation that Petitioner’s application be dismissed as unt imely and not subject to equ itable tolling. The district court declined to issue a certificate of appealability. Under our “firm waiver rule,” “the fa ilure to timely object to a magistrate judge’s finding and recommenda tions waives appellate re view 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 li tigant 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 Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 23 objection requirement], the forc e and plausibility of the expl anation for his failure to comply, and the importance of the issues ra ised.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1120 (10th Cir. 2005) (emphasi s omitted). Our “i nterest of justice standard, at a minimum, incl udes plain error.” Id. at 11 22. Plain error has four elements: “(1) error, (2) that is plain, which (3) aff ects substantial rights, and which (4) seriously affects the fa irness, 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 unl ess Petitioner makes “a s ubstantial showing of the denial of a constitutional ri ght,” § 2253(c)(2), and show s “that reasonable jurists could debate whether . . . th e petition should have been resolved in a different manner or that the issues presented were adequa te to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473 , 484 (2000) (quotations omitted). Where, as here, the district court dismissed clai ms on procedural grounds, we will issue a certificate of appealability only if Petitione r can show both “tha t jurists of reason would find it debatable whethe r 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 repor t and recommendation. The first exception to the firm waiver rule is inapplicable here because th e magistrate judge informed Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 34 Petitioner that he had fourteen days to object to the recommenda tion 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 Petiti oner address the delay. Petitioner tells us that he is a “[M]exi can-[S]panish national” who ba rely speaks and understands “the [A]merican language.” He says, “I[t ] is assumed that when appellant received the magistrate[’]s recommendation . . . a ppellant did not comprehend the [E]nglish language and until now appellant seeks lega l assistance from the BCF facility law library clerks.” The interests of justice do not require re view when the petitioner is unfamiliar with the English language. Ind eed, in the equitable tolling c ontext, we have said that lack of English-language pr oficiency does not warrant e quitable 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 (1 0th 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 s eek legal assistance from the law library until writing his response to that order. The firm waiver rule bars our appe llate 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

. Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 45 DISMISSED.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 5