* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### 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, 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.1 We 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 fora federal prisoner to appeal a final order in a 28 U.S.C. § 2241 proceedi ng. 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. 2We affirm. Mr. Evans pled guilty to raping and committing inde cent acts with his twelve-year-old daughter in violation of the Uniform Code of Military Justice. He was sentenced to fifteen years confinement (conf inement 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 t o the United States Army Court of Criminal Appeals, which affirmed his convi ction. 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 wr it 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 p rovisions were unclear; (2) the trial judge’s inquiry into the factual basis for hi s guilty plea was insufficiently penetrating, particularly as to inconsistent matter s, and (3) his Fifth Amendment-3-

right to remain silent was violated by the admissio n 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 we re given “full and fair consideration.” Evans v. Andraschko , No. 02-3051-RDR (October 7, 2002, Report and Recommendation at 4). The Report and Re commendation 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. Anyobjection filed must specify the parts of the Report and Reco mmendation to which objections are made, and set forth the basis for such objections. Failure to file timely objections waiv es 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 appel late review of both factual and legal issues. He submitted his brief, but igno red 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 waives3 Had 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 cons ideration 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 question s.” 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 specificall y, notified in the Magistrate Judge’s Report and Recommendation of the consequences of failing to object. Mr. Evans did not object; thus, he has wai ved appellate review of these issues. Further, the interests of justice do not r equire 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