Castillo-Rosales v. Roark

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 20, 2022
• Docket: 21-1378
• Status: Unpublished

Opinion

Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 20, 2022 _________________________________ Christopher M. Wolpert Clerk of Court VICTOR LUIS CASTILLO-ROSALES,

Petitioner - Appellant,

v. No. 21-1378 JERRY ROARK, Warden, BCCF; THE (D.C. No. 1:21-CV-01930-LTB-GPG) ATTORNEY GENERAL OF THE STATE (D. Colo.) OF COLORADO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before BACHARACH, MURPHY, and CARSON, Circuit Judges. _________________________________

Petitioner Victor Luis Castillo-Rosales, a state prisoner appearing pro se, seeks

a certificate of appealability to appeal the district court’s order denying his request

for relief under 28 U.S.C. § 2254. We exercise jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), deny Petitioner’s request for a certificate of appealability, and

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1378 Document: 010110673388 Date Filed: 04/20/2022 Page: 2

dismiss the appeal. We construe Petitioner’s filings liberally, but we do not act as his

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

A Colorado jury convicted Petitioner for sexual assault on a child by one in a

position of trust. Petitioner filed this habeas petition, asserting due process

violations. Respondents moved to dismiss, arguing that the one-year limitation

period barred Petitioner’s claim. The magistrate judge recommended that the district

court deny the application as untimely and advised the parties that they had fourteen

days in which to file objections to the report and recommendation. The magistrate

judge warned that failing to timely file objections would bar the party from appealing

the recommendation’s findings and conclusions adopted by the district judge.

Petitioner never objected to the report and recommendation. So the district

court adopted the magistrate judge’s report and recommendation that Petitioner’s

application be dismissed as untimely and not subject to equitable tolling. The district

court declined to issue a certificate of appealability.

Under our “firm waiver rule,” “the failure to timely object to a magistrate

judge’s finding and recommendations waives appellate review of both factual and

legal questions.” Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015) (quotations

omitted). Two exceptions to the rule exist: (1) when “a pro se litigant has not been

informed of the time period for objecting and the consequences for failing to object,”

and (2) when “the interests of justice require review.” Duffield v. Jackson, 545 F.3d

1234, 1237 (10th Cir. 2008) (emphasis and quotations omitted). Factors we consider

for the second exception include “a pro se litigant’s effort to comply [with the

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objection requirement], the force and plausibility of the explanation for his failure to

comply, and the importance of the issues raised.” Morales-Fernandez v. I.N.S., 418

F.3d 1116, 1120 (10th Cir. 2005) (emphasis omitted). Our “interest of justice

standard, at a minimum, includes plain error.” Id. at 1122. Plain error has four

elements: “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1122–23.

To review a district court’s denial of a § 2254 application, we must grant a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We will not issue a

certificate of appealability unless Petitioner makes “a substantial showing of the

denial of a constitutional right,” § 2253(c)(2), and shows “that reasonable jurists

could debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Where,

as here, the district court dismissed claims on procedural grounds, we will issue a

certificate of appealability only if Petitioner can show both “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id.

Petitioner has waived any right to appeal under the firm waiver rule. He did

not object to the magistrate judge’s report and recommendation. The first exception

to the firm waiver rule is inapplicable here because the magistrate judge informed

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Petitioner that he had fourteen days to object to the recommendation and noted that

failing to do so would waive appellate review.

The second exception does not apply either. In his opening brief, Petitioner

never mentioned his failure to object to the report and recommendation. Only when

responding to our Show Cause Order did Petitioner address the delay. Petitioner tells

us that he is a “[M]exican-[S]panish national” who barely speaks and understands

“the [A]merican language.” He says, “I[t] is assumed that when appellant received

the magistrate[’]s recommendation . . . appellant did not comprehend the [E]nglish

language and until now appellant seeks legal assistance from the BCF facility law

library clerks.”

The interests of justice do not require review when the petitioner is unfamiliar

with the English language. Indeed, in the equitable tolling context, we have said that

lack of English-language proficiency does not warrant equitable tolling. Yang, 525

F.3d at 929 (finding a petitioner’s “limited English” did not justify tolling); see also

Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (explaining that dyslexia

does not toll a statute of limitations). Nor has Petitioner shown how he tried to

comply with the objection requirement. In his response to the Show Cause Order, he

stated that he did not seek legal assistance from the law library until writing his

response to that order.

The firm waiver rule bars our appellate review and precludes granting a

certificate of appealability. We thus deny Petitioner’s request for a certificate of

appealability and to proceed in forma pauperis.

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DISMISSED.

Entered for the Court

Joel M. Carson III Circuit Judge