* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### NOV 15 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JACK ADARGO,

Petitioner-Appellant,

v. UNITED STATES PAROLE COMMISSION,

Respondent-Appellee. No. 01-1269 (D.C. No. 00-Z-746) (D. Colo.)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and BRISCOE , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Jack Adargo, a federal inmate appearing pro se , appeals the district court’s denial of his habeas petition file d pursuant to 28 U.S.C. § 2241. We dismiss the appeal because petitioner failed to file specific objections to the magistrate judge’s report and recommendation.

I. In 1984, petitioner was convicted of robbery of a f ederally insured savings and loan institution. He was paroled in 1994, but was returned to custody several times after a series of parole violations. In 1999 , while out on parole, petitioner was taken into custody again on a parole violation warrant. His parole was revoked after a parole revocation hearing held more than eight months after he was returned to custody. Petitioner filed a § 2241 petition claiming that the Parole Commission violated his due process rights b y failing to provide him with a timely revocation hearing. It is undisputed that petitioner did not receive a timely parole revocation hearing. See 18 U.S.C. § 4214(c) (requiring hearing be held within ninety days; applicable to prisoners such as petitioner convicte d for offenses committed before November 1, 1987). Petitioner’s case was referred to a magistrate judge who concluded in a report and recommendation that petit ioner’s due process rights were not violated by the delay, however, because he did not contend, or present evidence demonstrating, that he was prejudiced in any way by the delay. See1 Although the Parole Commission claims the objection s were not timely

filed, it does not claim petitioner waived appellate review as a result. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (explaining fi rm waiver rule for untimely filed objections). The magistrate jud ge’s report was filed on February 22, 2001 and informed petitioner that he w as required to file any objections within ten days of its service. Petitio ner filed his objections on March 26, 2001. The district court stated the objections were untimely, but considered the pleading “in the interest of justice.” R. Doc. 25. However, the record and the district court docket sheet indicate that the report and recommendation was not served on petitioner until March 16, 2001. Thus, i t appears that petitioner’s objections were timely filed within ten days of service of the report and recommendation on petitioner. See Fed. R. Civ. P. 72(b) (requiring objections to be filed within ten days after being served with a copy of the magistrate judge’s recommended disposition (emphasis added)). -3- Harris v. Day , 649 F.2d 755, 761-62 (10th Cir. 1981) (holding th at, absent showing of prejudice, delay in holding revocation h earing on parole revocation warrant does not violate parolee’s due process rights). Petitioner was ultimately afforded a revocation hearing at which he was repre sented by counsel. He received notice of the evidence against him and was afforded an opportunity to present evidence and witnesses. He presented no ev idence or defense and did not contest the conviction upon which his parole revocation was based. Accordingly, the magistrate judge recommended that his § 2241 pe tition be denied. Petitioner filed a half-page objection, stating onl y that he found it “incredible a delay by the parole commission did no t violate the due process clause.” R. Doc. 23. The district court adopted t he report and recommendation, stating it agreed with the magistrate judge’s recom mendation and that petitioner had not raised any specific issue for the court’s consideration. R. Doc. 25. 1-4- II. Rule 72 of the Federal Rules of Civil Procedure pro vides that when a magistrate judge issues a ruling on a dispositive p retrial motion, a party has ten days after service to “serve and file specific, wri tten objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72( b). We have held that failure to file a specific objection to a magistrate judge’ s report and recommendation constitutes a waiver of appellate review. United States v. 2121 E. 30th St. , 73 F.3d 1057, 1060 (10th Cir. 1996). Objections to the magistrate’s report must be specific enough to focus the district court’s attention on the factual and legal issues in dispute. Id . We have held that the waiver rule need not be ap plied where the interests of justice so dictate. Id

. Here, petitioner has failed to comply with the spec ific objection requirement established by Fed. R. Civ. P. 72 and c ircuit precedent. He did not provide the district court with any meaningful noti ce as to the particular factual or legal errors he implicitly claims the magistrate ju dge committed. Further, we do not conclude that the interests of justice indicate that petitioner should be excused from the waiver rule. The arguments raised by peti tioner in his § 2241 petition were thoroughly and persuasively rejected by the ma gistrate judge. On appeal, petitioner makes only a general assertion that he w as denied a fair hearing, yet he does not articulate any way in which he was prejudi ced by the delayed hearing,2 It is not clear whether the district court reviewedthe magistrate judge’s

report and recommendation de novo , despite the lack of an appropriately specific objection. Even if the district court did perform a de novo review, that does not preclude application of the waiver rule. See 2121 E. 30th St. , 73 F.3d at 1061 (declining to lift the bar of appellate review despite the district court’s sua sponte decision to conduct a de novo review where objections were not specific enough to preserve the issues for appellate review). -5- nor does he assert any specific factual or legal er ror by the magistrate judge. Thus, the interests of justice do not warrant excus ing petitioner from the waiver rule. 2 Accordingly, we hold that petitioner waived appellate review by failing to file specific objections to the magistrate judge’s report and recommendation. The appeal is DISMISSED. Petitioner’s request to proceed in forma pauperis is DENIED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge