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2d 656
The government subsequently charged petitioner with perjury on the theory that
petitioner had failed to acknowledge the involvement of codefendant Darrel
Glen Russell in the conspiracy.2 Petitioner pled guilty to the perjury charge on
the promise that the government would not seek to invalidate the first plea
agreement on the interstate transportation in aid of racketeering charge.
Petitioner was sentenced to sixty months on the interstate transportation in aid
of racketeering conviction, and an additional sixty months on the perjury
conviction, to run consecutively.
4
(1) and E.D.Okla.R. 32(d),6 "the parties are given ten (10) days from the above
filing date [March 28, 1991] to file with the Clerk of Court any objections, with
supporting brief." I R. doc. 7 at 4. See also R. 8(b)(2) & (3), Rules Governing
Section 2255 Proceedings. The memorandum containing the magistrate's
findings and recommendation failed to apprise petitioner of the consequences of
failing to file objections, namely waiver of appellate review. On April 19,
1991, the district court noted that no objections had been filed and adopted the
magistrate's recommendation.
Although we plainly have jurisdiction over this appeal, see 28 U.S.C. 1291,
2253, 2255, we have adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate. Niehaus v. Kansas Bar
Ass'n, 793 F.2d 1159, 1164-65 (10th Cir.1986); Boyd Motors, Inc. v.
Employers Ins., 880 F.2d 270, 271 (10th Cir.1989). See also Thomas v. Arn,
474 U.S. 140, 146, 106 S.Ct. 466, 470, 88 L.Ed.2d 435 (1985). Our waiver rule
provides that the failure to make timely objection to the magistrate's findings or
recommendations waives appellate review of both factual and legal questions.7
The waiver rule as a procedural bar need not be applied when the interests of
justice so dictate. Thomas, 474 U.S. at 155, 106 S.Ct. at 474. In this case,
however, we need not decide whether the interests of justice exception applies.
We join those circuits that have declined to apply the waiver rule to a pro se
litigant's failure to object when the magistrate's order does not apprise the pro
se litigant of the consequences of a failure to object to findings and
recommendations. Small v. Secretary, HHS, 892 F.2d 15, 16 (2d Cir.1989);
United States v. Valencia-Copete, 792 F.2d 4, 7 (1st Cir.1986); Wright v.
Collins, 766 F.2d 841, 846-47 (4th Cir.1985). See also 7 James W. Moore, Jo
D. Lucas & Kent Sinclair, Jr., Moore's Federal Practice p 72.04[9.--6] (1991) &
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991) (district courts should
provide notice to pro se litigants of certain complex procedural issues). In
proceedings in which a party appears without benefit of counsel, we shall
exercise our supervisory power and require magistrates within the circuit to
inform a pro se litigant not only of the time period for filing objections, but also
of the consequences of a failure to object, i.e. waiver of the right to appeal from
a judgment of the district court based upon the findings and recommendations
of the magistrate. See Arn, 474 U.S. at 144, 155, 106 S.Ct. at 469, 474. Cf.
United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981). This notice should
be included in the text of the document containing the magistrate's findings and
recommendations. Valencia-Copete, 792 F.2d at 6.
Turning to the merits of the appeal, 2255 provides for an evidentiary hearing
"[u]nless the motion and the files and records of the case conclusively show
11
12
14
15
On remand, the district court should hold an evidentiary hearing given the
allegations of actual conflict and a breakdown in the adversary process. See
Wood, 450 U.S. at 273-74, 101 S.Ct. at 1104-05; Bowie, 892 F.2d at 1502;
Winkle, 722 F.2d at 605. A hearing is necessary because of the need to
consider extra-record facts concerning counsel's representation of petitioner.
See 28 U.S.C. 2255; Machibroda v. United States, 368 U.S. 487, 494-95, 82
S.Ct. 510, 513-14, 7 L.Ed.2d 473 (1962); Sanders v. United States, 373 U.S. 1,
20, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1963); United States v. Estrada, 849
F.2d 1304, 1306 (10th Cir.1988); United States v. Gutierrez, 839 F.2d 648, 652
(10th Cir.1988). The district court should proceed in accordance with 2255
and R. 8, Rules Governing 2255 Proceedings, and consider (1) whether actual
conflicts existed, (2) which adversely affected counsel's performance, and if so,
(3) whether petitioner made a valid waiver. See Wood, 450 U.S. at 273-74, 101
S.Ct. at 1104-05; Bowie, 892 F.2d at 1502; Winkle, 722 F.2d at 611-12.
16
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); 10th Cir.R. 34.1.9. The cause therefore
is ordered submitted without oral argument
Petitioner subsequently admitted to the prosecutor that he had lied at his plea
proceeding by implicating Callihan as the source of his compensation when in
fact, it was Greg Cox
Russell was acquitted, and the government attributes its lack of success to
petitioner's perjury. See Appellee's Brief at 10
We refer to counsel as "D.G." given the unproven nature of the allegations. See
Bridges v. United States, 794 F.2d 1189, 1190 n. 1 (7th Cir.1986)
These affidavits contain other conclusory information which does not appear to
be based on personal knowledge
recommendations for the disposition of any of the motions excepted from Rule
32(c), and the Magistrate shall file his proposed findings and recommendations
with the Court, mailing copies thereof to all parties who shall have ten (10)
days after service thereof to serve and file specific written objections thereto. If
no such objections are filed, the Magistrate's findings may be accepted by the
District Judge and appropriate orders entered without further notice.
7
The failure to object does not waive issues concerning the magistrate's
jurisdiction, however. Clark v. Poulton, 914 F.2d 1426, 1431 (10th Cir.1990)
Petitioner admits that he was aware of one conflict from the outset--that D.G.
was retained by Cox, who allegedly was involved in the offense. When
questioned by the prosecutor after the first plea agreement, petitioner confessed
that he had lied and attributed the lie to D.G. He reported that Cox had paid
D.G. Yet, petitioner returned to D.G. and negotiated another plea agreement.
Petitioner subsequently indicated satisfaction with D.G. at the perjury plea
hearing