UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEVEN I. MALDONADO, Petitioner - Appellant,

v. FNU MARTHENZ, Warden; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents - Appellees. No. 24-2032 (D.C. No. 2:20-CV-00507-MV-GJF) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , BALDOCK , and FEDERICO , Circuit Judges.

________________ _________________ Steven Maldonado, a New Me xico prisoner, filed a pro se application for habeas corpus relief under 28 U.S.C. § 2254. A magist rate judge recommended his application be denied. The recommendation was f iled January 18, 2024, and served on Mr. Maldonado. It advised him that if he di d not file objections within 14 days, appellate review would not be allowed. Mr. Maldonad o did not file objections. On February 14, 2024, the district court adopted the recomme ndation. Mr. Maldonado now applies for a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(A).

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### September 11, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-2032 Document: 31-1 Date Filed: 09/11/2024 Page: 12 Although we construe Mr. Maldonado’s fili ngs liberally, he must follow the same rules of procedure as other litigants. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). One such rule is that “a party who fails to make a timely objection to the magistrate judge’s finding s and recommendations waives appellate review of both factual and legal questions.” Morales-Fernandez v. I.N.S. , 418 F.3d 1116, 1119 (10th Cir. 2005). We apply this firm wa iver rule to pro se litigants, “provided they were informed of the time period for objecting and the consequences of failing to object,” as Mr. Maldonado was. Wardell v. Duncan , 470 F.3d 954, 958 (10th Cir. 2006). We may make exceptions to this rule “whe n the interests of justice so dictate.” Johnson v. Reyna , 57 F.4th 769, 778 (10t h Cir. 2023) (internal qu otation marks omitted). “To determine whether this exception applies, we consid er three factors: [1] a pro se litigant’s effort to comp ly, [2] the force and pl ausibility of the explanation for his failure to comply, and [3] th e importance of the issues raised.” Id. (internal quotation marks omitted). The interests of justice do not require maki ng an exception here. After the court directed Mr. Maldonado to show cause why he had not waived appellate review, he filed a letter indicating he had received the magist rate judge’s recommendation on January 23, but could not afford postage a nd an envelope to respond un til February 4. However, he did not file objections on February 4, or at any time either before or after the district court adopted the magistrate judge’s recommendation, on February 14. 1 He filed a notice of

1 Mr. Maldonado filed an inmate trust account statement with his motion to proceed without pr epayment of costs and fees, from wh ich we might infer that he was Appellate Case: 24-2032 Document: 31-1 Date Filed: 09/11/2024 Page: 23 appeal, postmarked February 22, but he did not raise objections to the recommendation, ask the district court to consider objections out of time, or explain why he had not filed timely objections. Further, and significantly , in his COA application, Mr. Maldonado only restates his § 2254 claims. He has not invoked or argued for the interests of justice exception to the firm waiver rule. He doe s not acknowledge the magistrate judge’s recommendation or address the reasons it gave for denying his § 2254 application. In these circumstances, Mr. Maldon ado has not shown that he ma de efforts to comply with the requirement to file objections to the ma gistrate judge’s reco mmendation in district court, and he has not identified issues of such importance that we will overlook his failure to object in the inte rests of justice. See Johnson , 57 F.4th at 778. Accordingly, Mr. Maldonado waived his right to appella te review, and we will not overlook that waiver. His request for a COA is denied and this matter is dismissed. Mr. Maldonado’s motion to proceed without pr epayment of costs or fees is granted.

Entered for the Court
Bobby R. Baldock Circuit Judge

unable to afford an envelope and postage before February 15, rather than February 4. But even if we liberally construe his filings to c onsider the later date, th at does not change our result. Whichever date is correct, he di d not file any objections or explain his untimeliness once he was able to do so. Appellate Case: 24-2032 Document: 31-1 Date Filed: 09/11/2024 Page: 3