*

 This order and judgment is not binding precedent except under the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

JUL 28 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SEAN L. EVANS,

Petitioner - Appellant,

v.

STEVEN ANDRASCHKO, Colonel,

Respondent - Appellee.

No. 02-3432

(D.C. No. 02-CV-3051-RDR)

(D. Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O’BRIEN, 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.
1We construe his pro se appeal liberally. See Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

2A certificate of appealability is not necessary for a federal prisoner to

appeal a final order in a 28 U.S.C. § 2241 proceeding. See Montez v.Mckinna,

208 F.3d 862, 867 (10th Cir. 2000).

-2-

Appellant Sean Evans, a military prisoner appearing pro se,1 seeks review

of the district court’s denial of his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241.2 We affirm.

Mr. Evans pled guilty to raping and committing indecent acts with his

twelve-year-old daughter in violation of the Uniform Code of Military Justice. 

He was sentenced to fifteen years confinement (confinement in excess of thirteen

years was suspended for a period of thirteen years), a dishonorable discharge,

forfeiture of all pay and allowances, and reduction to grade Private E-1. Raising

various claims, Mr. Evans appealed his conviction to the United States Army

Court of Criminal Appeals, which affirmed his conviction. Subsequently, the

United States Court of Appeals for the Armed Forces denied his petition for

review.

Mr. Evans, acting pro se, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 with the United States District Court for the District

of Kansas, claiming: (1) the sentence suspension provisions were unclear; (2) the

trial judge’s inquiry into the factual basis for his guilty plea was insufficiently

penetrating, particularly as to inconsistent matters, and (3) his Fifth Amendment
-3-

right to remain silent was violated by the admission of what he claimed were

hearsay statements. The matter was referred to the Magistrate Judge, who

recommended the appeal be dismissed because Mr. Evans’s claims were properly

presented to the military courts, and his claims were given “full and fair

consideration.” Evans v. Andraschko, No. 02-3051-RDR (October 7, 2002,

Report and Recommendation at 4). The Report and Recommendation also stated: 

Any party objecting to the recommended disposition may serve and

file with the clerk of the district court written objections within 10

days of service of this Report and Recommendation. Any objection

filed must specify the parts of the Report and Recommendation to

which objections are made, and set forth the basis for such

objections. Failure to file timely objections waives appellate review

of both factual and legal questions. 

Id. at 4-5 (citations omitted) (emphasis in original). No objections were filed. 

The district court adopted the Magistrate’s Report and Recommendation and

denied habeas relief.

After Mr. Evans filed his appeal in this Court, we issued a Show Cause

Order requiring him to discuss whether his failure to file written objections to the

Magistrate’s Report and Recommendation waived appellate review of both factual

and legal issues. He submitted his brief, but ignored our instructions to address

this issue.

We have adopted a firm waiver rule, which “provides that the failure to

make timely objection to the magistrate’s findings or recommendations waives
3Had appellate review not been waived we would still affirm. It is well

accepted that review of a habeas petition filed by a military prisoner is proper, but

such review is very narrow. Lips v. Commandant, United States Disciplinary

Barracks, 997 F.2d 808, 811 (10th Cir. 1993) (citing Burns v. Wilson, 346 U.S.

137, 139 (1953)), cert. denied, 510 U.S. 1091 (1994). We review such claims if

the issues raised were not given full and fair consideration by the military courts. 

See Burns, 346 U.S. at 142; Lips, 997 F.2d at 811; Watson v. McCotter, 782 F.2d

143, 144 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). Mr. Evans’s claims

were properly presented to the military courts and were given full and fair

consideration by those courts.

-4-

appellate review of both factual and legal questions.” Moore v. United States, 

950 F.2d 656, 659 (10th Cir. 1991). “This remains true for pro se litigants if the

plaintiff was properly informed of the consequences of his failure to object. We

may make an exception to this rule, however, where the interests of justice so

require.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996) (citing

Moore, 950 F.2d at 659). 

Here, Mr. Evans was properly, and quite specifically, notified in the

Magistrate Judge’s Report and Recommendation of the consequences of failing to

object. Mr. Evans did not object; thus, he has waived appellate review of these

issues. Further, the interests of justice do not require us to make an exception in

this case.3
-5-

Based upon the foregoing, we AFFIRM the denial of Mr. Evans’s petition

for a writ of habeas corpus and DISMISS his appeal. 

Entered by the Court:

TERRENCE L. O’BRIEN

United States Circuit Judge