* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, 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.
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Petitioner Jack Adargo, a federal inmate appearing pro se , appeals the

district court’s denial of his habeas petition filed 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 federally 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 by 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 convicted for offenses committed before

November 1, 1987). Petitioner’s case was referred to a magistrate judge who

concluded in a report and recommendation that petitioner’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. See
1 Although the Parole Commission claims the objections 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 firm waiver rule

for untimely filed objections). The magistrate judge’s report was filed on

February 22, 2001 and informed petitioner that he was required to file any

objections within ten days of its service. Petitioner 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, it 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)).

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Harris v. Day , 649 F.2d 755, 761-62 (10th Cir. 1981) (holding that, absent

showing of prejudice, delay in holding revocation hearing on parole revocation

warrant does not violate parolee’s due process rights). Petitioner was ultimately

afforded a revocation hearing at which he was represented by counsel. He

received notice of the evidence against him and was afforded an opportunity to

present evidence and witnesses. He presented no evidence or defense and did not

contest the conviction upon which his parole revocation was based. Accordingly,

the magistrate judge recommended that his § 2241 petition be denied.

Petitioner filed a half-page objection, stating only that he found it

“incredible a delay by the parole commission did not violate the due process

clause.” R. Doc. 23. The district court adopted the report and recommendation,

stating it agreed with the magistrate judge’s recommendation and that petitioner

had not raised any specific issue for the court’s consideration. R. Doc. 25. 1
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II.

Rule 72 of the Federal Rules of Civil Procedure provides that when a

magistrate judge issues a ruling on a dispositive pretrial motion, a party has ten

days after service to “serve and file specific, written 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 applied

where the interests of justice so dictate. Id.

Here, petitioner has failed to comply with the specific objection

requirement established by Fed. R. Civ. P. 72 and circuit precedent. He did not

provide the district court with any meaningful notice as to the particular factual or

legal errors he implicitly claims the magistrate judge 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 petitioner in his § 2241 petition

were thoroughly and persuasively rejected by the magistrate judge. On appeal,

petitioner makes only a general assertion that he was denied a fair hearing, yet he

does not articulate any way in which he was prejudiced by the delayed hearing,
2

It is not clear whether the district court reviewed the 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).

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nor does he assert any specific factual or legal error by the magistrate judge. 

Thus, the interests of justice do not warrant excusing 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