* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JUN 18 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKY ABEYTA,

Petitioner-Appellant, No. 98-2103

v. (D.C. No. CIV-97-706-LH) BILL CLEMENTS-POTTER, Warden/Director of T.D.C.J., and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, (D. New Mex.)

Respondents-Appellees.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. Petitioner-Appellant Ricky Abeyta, proceeding pro s e, appeals the district court’s denial of his petition for writ of habeas c orpus filed pursuant to 28 U.S.C.1 Applying Federal Rules of Civil Procedure 72(b), 6( a), and 6(e), Petitioner

had until September 22, 1997, to file objections. -2- § 2254. Petitioner is serving a life sentence in a Texas De partment of Corrections facility following conviction for multiple counts o f first degree and second degree murder and manslaughter. In his habeas corpus peti tion filed May 20, 1997, Petitioner alleged that two jury instruction errors violated his due process rights. On September 4, 1997, the magistrate judge issued i ts findings and recommendation. While noting that the petition cou ld be denied for failure to exhaust New Mexico remedies, the magistrate judge e lected to address the merits of Petitioner’s claims. The magistrate judge foundthat the alleged instructional errors did not render Petitioner’s trial fundamenta lly unfair and, accordingly, recommended that the claim be denied with prejudice . The magistrate judge notified Petitioner that he had ten days to file objections to the findings and recommendation and that failure to object would wai ve appellate review. See R., Doc. 15 at 1 n.1. Noting Petitioner’s failure to f ile objections, 1 the district court adopted the magistrate judge’s findings and recomme ndation and dismissed the habeas petition with prejudice on September 30, 199 7. On October 3 and 6, 1997, Petitioner filed identica l documents entitled “Answer to Magistrate Judge’s Findings and Recommen ded Disposition” in the2 Because the “Answer” documents were filed within te n days of the district

court’s entry of judgment, they were treated as mot ions to alter or amend the judgment under Rule 59(e). See Hatfield v. Board of County Comm'rs for Converse County , 52 F.3d 858, 861 (10th Cir. 1995).

3 The district court previously had denied Petitioner ’s motion for a certificate of appealability. -3- district court. In these documents, Petitioner ess entially requested the court to deny his petition without prejudice rather than with prejudice so that he could exhaust his state remedies. See id. , Docs. 17 & 18 at 3. Although the documents are deemed filed as of September 26, 1997, the date on the certificate of service,

see Fed. R. App. P. 4(c); Houston v. Lack , 487 U.S. 266, 275-76 (1988), they were filed too late to be considered as objections to the magistrate judge’s report. However, after Petitioner filed a notice of appeal which the Government alleged was untimely, this court entered an order construin g these “Answer” documents as timely motions under Federal Rule of Civil Procedur e 59(e) for reconsideration of the district court’s dismissal “with prejudice” rather than “without prejudice,” and we abated Petitioner’s appeal pending disposition b y the district court. 2 In an Order filed on November 9, 1998, the district courtsummarily denied the Rule 59(e) motions. 3 Petitioner timely appealed and now requests this court to issue a certificate of appealability. As a threshold issue, we must determine whether Pet itioner’s failure to timely file objections to the magistrate judge’s fi ndings and recommendation has-4-

waived his right to appeal. This court has adopted a “firm waiver rule” which “provides that the failure to make timely objection s to the magistrate’s findings or recommendations waives appellate review of both fac tual and legal questions.” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). This rule do es not apply, however, when the magistrate judge does not inform a pro se litigant of the consequences of failing to object or when the inter ests of justice dictate otherwise. See id. at 659. Having reviewed the record and Petitioner’s brief o n appeal, we conclude that Petitioner was properly advised of the consequ ences of his failure to object to the magistrate judge’s findings and recommendation but failed to so timely object. Thus, he has waived his right to appellate review o f the factual and legal issues contained in the magistrate judge’s report and reco mmendation. Nothing in the record would cause us to reject the waiver rule in this case; the interests of justice do not dictate our appellate review of the magistrate judge’s findings and recommendation. However, failure to object to the magistrate judge’ s report does not necessarily waive the right to appeal the district court’s decision to dismiss the claims with prejudice, which is a legal conclusion distinct from those contained in the magistrate judge’s report. Because we construe d Petitioner’s filings on October 3 and 6, 1997, as Rule 59(e) motions challe nging whether the court4 Because Plaintiff waived the right to appeal the un derlying merits of the

dismissal by failing to object to the magistrate ju dge’s findings and recommendation, our general rule that we consider t he merits of the underlying decision in an appeal of a Rule 59(e) motion is notapplicable here. See ArtesRoy v. City of Aspen , 31 F.3d 958, 961 n.5 (10th Cir. 1994) (noting that an appeal from the denial of a Rule 59 motion will be sufficient to permit consideration of the merits of the underlying summary judgment if the appeal is otherwise proper ) (emphasis added). Accordingly, Plaintiff has pre served for review only the issue of whether the court properlydismissed with prejudice rather than without prejudice.

5 We also deny Petitioner’s motion for appointment of counsel filed in this court on May 6, 1999. -5- properly dismissed with prejudice rather than witho ut prejudice, Petitioner effectively objected to the dismissal with prejudic e. 4 See Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996). Nevertheless, we agree with the magistrate judge’s findings on the merits and, therefore, conc lude that the district court did not abuse its discretion by dismissing with prejudi ce. For these reasons, Petitioner has failed to make a substantial showing of the denial of a constitutional right. His request for a certificate of appealability is DENIED, and the appeal is DISMISSED. 5
Entered for the Court

Monroe G. McKay Circuit Judge