* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The 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. 

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

### JAN 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD L. LARSON, Petitioner-Appellant,

v. DONALD DORSEY, Warden; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondent-Appellee. No. 97-2215 (District of New Mexico) (D.C. No. CIV-96-434-HB)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 Because Larson filed his § 2254 petition prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (“AED PA”), Pub. L. No. 104-132, 110 Stat. 1214, the AEDPA and its certificate of ap pealability requirements do not apply to this appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Instead, the pre-AEDPA certificate of probable cause requirements apply here. This court, therefore, li berally construes Larson’s request for a certificate of appealability as a mot ion for a certificate of probable cause, grants that motion, and proceeds to the meri ts of this appeal. See Parkhurst v. Shillinger , 128 F.3d 1366, 1368 n.3 (10th Cir. 1997).

2 In this first § 2254 petition, Larson raised the fo llowing four issues: “1)whether use of the first videotaped deposition at trial violated his Sixth Amendment confrontation rights, 2) whether he was d enied a speedy trial, 3) whether he received ineffective assistance of couns el at trial and on direct appeal in light of counsel’s failure to assert his speedy trial claim, and 4) whether he was deprived of court-appointed counsel in violation of New Mexico’s Indigent -2- Richard L. Larson, proceeding pro se andin form pauperis , appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition for lack of subject matter jurisdiction. Because the distri ct court’s conclusion that it lacked subject matter jurisdiction is based on an u nduly narrow reading of Larson’s § 2254 petition, we reverse and remand for further proceedings. 1
Larson was convicted in New Mexico state court on four counts of criminal sexual penetration of a minor, one count o f attempted criminal sexual penetration, three counts of incest, and one count of criminal sexual contact of a minor. His conviction was affirmed on appeal and h is subsequent effort at state post-conviction relief was summarily denied. Somet ime thereafter, Larson brought his first § 2254 petition in the United States District Court for the District of New Mexico. 2 The district court denied relief and this court a ffirmed onDefense Act . . . .” Larson v. Dorsey , No. 91-2198, 1993 WL 76278, at *1 (10th

Cir. March 12, 1993). -3- appeal. Larson v. Dorsey , No. 91-2198, 1993 WL 76278 (10th Cir. March 12, 1993). Larson filed the instant § 2254 petition on April 1 , 1996. The core of the petition revolves around matters that apparently to ok place before Larson’s conviction on the charges set out above. According to Larson, after a previous arrest on the same charges upon which he was eventu ally convicted, he entered into some kind of “letter agreement” with the state . That letter agreement apparently provided that New Mexico would not prose cute Larson if he agreed not to see his daughter. According to Larson, a Ne w Mexico magistrate judge played some part in the process leading to the lett er agreement. It is this letter agreement and the New Mexico magistrate judge’s participation therein that lies at the heart of the current petition. Although Larson’s petition is far from a model of clarity, it appears to assert the following as grounds for granting habeas relief: (1) he was denied his right to due process during the process of reaching the letter agreement because the magistrate did not follow state statutes; (2) t he letter agreement constituted punishment and the magistrate judge lacked subject matter jurisdiction to punish him; (3) his subsequent arrest for the same conductthat formed the basis of the-4-

letter agreement violated the letter agreement and was, therefore, illegal; (4) his subsequent punishment for the acts underlying the l etter agreement constituted double jeopardy; and (5) his counsel was ineffectiv e for failing to raise the issues set out above. New Mexico responded to Larson’s petition with a mo tion to dismiss on the grounds of abuse of the writ. In response to New M exico’s motion to dismiss, a federal magistrate noted that the motion appeared m eritorious but concluded, “in the interests of fairness,” to allow Larson an addi tional period of time to respond to the motion. Before Larson could so respond, how ever, the magistrate issued, sua sponte , proposed findings which concluded that the distri ct court lacked subject matter jurisdiction over the petition. Acc ording to the magistrate, “[a]lthough [Larson] is now in custody, he is not c hallenging in this § 2254 motion the convictions which led to his being in cu stody. Rather, [Larson] is challenging an agreement not to prosecute which act ually led to his notbeing in custody and having charges dropped. I, therefore, find that [Larson] does not meet the § 2254 ‘in custody’ requirement.” Magistr ate Judge’s Proposed Findings and Recommended Disposition at 2. The district cou rt thereafter adopted the magistrate’s proposed findings after concluding that Larson had not filed timely objections thereto.-5-

Before proceeding to the merits, we must first reso lve a preliminary issue. This court has adopted a firm waiver rule which pro vides that a failure to make timely objections to a magistrate’s findings waives appellate review of both factual and legal questions. United States v. One Parcel of Real Property , 73 F.3d 1057, 1059 (10th Cir. 1996). We have recogniz ed, however, that the waiver rule will not apply where the ends of justice dictate otherwise. Talley v. Hesse , 91 F.3d 1411, 1413 (10th Cir. 1996). Responding to this court’s request for supplemental briefing on the issue, New Mexico argu es that this is such a case and we agree. As pointed out by New Mexico, Larsondid in fact file written objections to the magistrate’s proposed findings. Unfortunately, Larson miscaptioned the objections and they were filed and docketed in a separate, related case. In light of Larson’s pro se status and the fact that he did file timely, written objections, albeit miscaptioned, we conclud e that the waiver rule should not apply. See Swanson v. Ward, No. 97-6057, 1997 WL 527562 (10th Cir. Aug. 27, 1997) (unpublished disposition) (refusing to ap ply appellate waiver rule where objections were timely filed but inadvertently misc aptioned). We thus proceed to the merits. The district court’s conclusion that it lacked juri sdiction over Larson’s § 2254 petition because Larson failed to sufficient ly allege that he is in “custody” is based on an unduly rigid interpretation of the p etition. Cf. Hall v. Belmon , 935-6-

F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent st andard than formal pleadings drafted by lawyers.”). Liberally construed, it is apparent that Larson’s petition makes not only a challenge to the process underlyin g the letter agreement, but also contends that the process leading up to the le tter agreement, in which process a state magistrate judge allegedly participated, co nstituted an adjudication of his rights. In line with this assertion, Larson conten ds that his subsequent arrest, conviction, and punishment for the same conduct und erlying the letter agreement violated the double jeopardy clause. This challeng e is clearly directed at a state court judgment pursuant to which Larson is in custo dy. See 28 U.S.C. § 2254 (providing jurisdiction where petitioner is challen ging state court judgment under which petitioner is in custody). Accordingly, the district court erred in concluding that it was without subject matter juris diction to consider Larson’s § 2254 petition.-7-

The judgment of the United States District Court fo r the District of New Mexico is hereby REVERSED and the case is REMANDED to the district court for further proceedings. On remand, the district c ourt should first consider New Mexico’s Motion to Dismiss Larson’s petition as an abusive or successive petition.
ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge