UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

KENDELL CHARLES JONES,

Petitioner-Appellant,

v.

MICHAEL K. ADDISON, Warden,

Respondent-Appellee.

No. 10-6015

(D.C. No. 5:09-CV-00299-R)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, EBEL and LUCERO, Circuit Judges. 

 Kendell Jones, a prisoner of the state of Oklahoma, seeks a Certificate of 

Appealability (COA) in order to appeal the district court’s dismissal of his petition for a 

writ of habeas corpus under 28 U.S.C. § 2254. Jones is serving a 100-year sentence after 

being convicted of one count of second degree rape by instrument and two counts of 

burglary under Oklahoma law. His conviction and sentence were affirmed by the courts 

of Oklahoma on direct appeal, and his requests for state post-conviction relief were 

 *

 This order is not binding precedent except under the doctrines of law of the case, 

res judicata and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 20, 2010

Elisabeth A. Shumaker 

Clerk of Court

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denied. He filed his § 2254 petition on March 20, 2009, and the magistrate judge filed a 

Report & Recommendation (R&R) recommending dismissal on December 8, 2009. 

Jones did not file an objection to the R&R, and on January 4, 2010, the district court 

adopted the R&R and dismissed the petition. Further, the district court denied Jones’ 

motions for a COA and to proceed on appeal in forma pauperis. Jones filed motions for a 

COA and to proceed in forma pauperis with this Court, and we DENY those motions. 

 Under 28 U.S.C. § 2253(c)(1)(A), Jones may only obtain review of the district 

court’s dismissal of his § 2254 petition if this court elects to grant a COA. He may be 

granted a COA “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). Jones can make out such a showing by 

demonstrating “that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong” where the district court ruled on the merits of 

his claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). 

Where the district court ruled on procedural grounds, a COA may be granted when the 

petitioner shows “that jurists of reason would find it debatable whether the petition states 

a valid claim of the denial of a constitutional right and . . . whether the district court was 

correct in its procedural ruling.” Id.

 We can discern two reasons for denying Jones’ request for a COA in this case. 

First, he waived his right to appeal by failing to object to the magistrate judge’s R&R 

before the district court. Second, the R&R correctly rejected Jones’ claims as 

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procedurally barred. We address both grounds here, though either is sufficient to deny a 

COA. 

Waiver 

In this circuit, a party who fails to file a timely objection to a magistrate judge’s 

Report & Recommendation in the district court waives appellate review of both factual 

and legal questions. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This 

rule does not apply where “(1) a pro se litigant has not been informed of the time period 

for objecting and the consequences of failing to object, or when (2) the ‘interests of 

justice’ require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 

2005). 

 Jones did not object to the R&R before the district court, and as the R&R itself 

informs Jones of the need to do so and the consequences of a failure to object (R&R at 

18), we must assume that Jones was aware of the requirement. Therefore, we may excuse 

Jones’ failure to object only if to do so is in the interests of justice. Jones claims that he 

failed to object because he “is in disciplinary segregation, and was unable to adequately 

reply to the R&R,” but that he did not intend to waive his appeal rights and he “had not 

the materials with which to respond.” (Reply to Show Cause Order.) Jones’ response 

does not clearly indicate whether he was in segregation at the time he received the R&R, 

however, and he does not assert that, while in segregation, he was denied his legal mail or 

writing materials to prepare a response. Therefore, we are not inclined to excuse his 

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failure to object in the interests of justice. We will instead apply our firm waiver rule and 

hold that Jones waived his right to appeal by failing to object to the R&R. 

 Procedural Bar 

 Alternatively, we would also deny a COA on the grounds of procedural bar, as 

analyzed in the R&R. Jones urges two arguments for why he should be granted a COA: 

(1) he received constitutionally ineffective assistance of counsel when his trial counsel 

failed to request an instruction for the lesser-included offense of sexual battery; and (2) 

that his counsel was ineffective when he failed to challenge the sufficiency of the state’s 

evidence on the rape charge. However, in his initial § 2254 petition in the district court, 

Jones did not raise the sufficiency of the evidence issue. (See R. vol. I at 20-21 [Raising 

lesser-included-offense issue but not arguing that the evidence was insufficient].) We 

will ordinarily not consider arguments raised for the first time on appeal. Fairchild v. 

Workman, 579 F.3d 1134, 1144 (10th Cir. 2009). Therefore, we will address only the 

lesser-included-offense argument. 

 First, the R&R observed that Jones raised this argument for the first time during 

post-conviction proceedings in the Oklahoma courts, and that those courts held the 

argument procedurally barred under Okla. Stat. tit. 22, § 1086, which generally forbids 

litigants in post-conviction proceedings from raising new arguments not raised on direct 

appeal. The magistrate judge, citing Tenth Circuit precedent, noted that this statute is an 

independent and adequate state procedural bar to claims of ineffective assistance of trial 

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counsel. See English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998). We agree, and 

reject the argument for this reason. 

 Additionally, however, as the R&R observed, Jones also argues that this issue 

should have been raised on appeal, and claims of ineffective assistance of appellate 

counsel based on the omission of an issue should be evaluated on the merits. Hain v. 

Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002). On ineffective assistance of appellate 

counsel, we adopt the R&R’s reasoning for rejecting the claim. As the magistrate judge 

observed in the R&R, the evidence of Jones’ guilt was substantial, and “no rational jury 

could have acquitted [Jones] of the greater offense of rape by penetration” and convicted 

on the lesser offense of sexual battery. (R&R at 17.) We agree, and thus hold that 

appellate counsel’s performance was not ineffective on this basis. 

 Therefore, we DENY Jones’ request for a COA and DENY his motion to proceed 

in forma pauperis. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge 

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