Full Opinion

Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 13, 2026 _________________________________ Christopher M. Wolpert Clerk of Court RALPH FORD, Petitioner - Appellant, v. No. 26-1314 (D.C. No. 1:25-CV-02097-LTB-RTG) RYAN LONG; THE ATTORNEY (D. Colo.) GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________ Before MATHESON, MURPHY, and ROSSMAN, Circuit Judges. _________________________________ Colorado state prisoner Ralph Ford, proceeding pro se, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court”). He also seeks leave to This order is not binding precedent except under the doctrines of law of the case, * res judicata, and collateral estoppel.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. Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 2 proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny both requests and dismiss this matter. 1 I. BACKGROUND A. Procedural History Mr. Ford was convicted of two counts of sexual assault of a child and was sentenced to concurrent terms of four years to life. The Colorado Court of Appeals affirmed his convictions on direct appeal, and the Colorado Supreme Court denied his petition for certiorari. He filed the underlying § 2254 application and alleged six claims. A magistrate judge recommended dismissal without prejudice because the application contained four unexhausted claims and two procedurally defaulted claims—known as a “mixed petition.” ROA at 212-18; see Rhines v. Weber, 544 U.S. 269, 271 (2005). The Recommendation said that Mr. Ford had 14 days to file any written objections and that failure to do so may prevent him from appealing the recommendations adopted by the district judge. ROA at 218 n.1. Mr. Ford filed no objections, and the district court adopted the recommendations and entered judgment. Id. at 219. 2 Mr. Ford filed a notice of appeal. 1 Because Mr. Ford appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Also, he is subject to the same procedural rules governing other litigants. See United States v. Green, 886 F.3d 1300, 1307-08 (10th Cir. 2018). 2 The district court’s order accepting the Recommendation, noting that no timely objection had been filed, and dismissing the § 2254 application without prejudice, was not included in the record on appeal but does appear on the district court docket as entry #32. We take judicial notice of the district court order. See Bunn v. Perdue, 966 F.3d 2 Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 3 This court directed Mr. Ford “to file a written response in this court addressing whether he waived his right to appellate review of the district court’s order denying his § 2254 petition by failing to file objections to the magistrate judge’s Recommendation.” Dkt. No. 2. In response, Mr. Ford said, “I’m not waiving my right to appellate review of the district court order denying § 2254 petition.” Dkt. No. 4. The Clerk’s Office referred this matter to this panel. Dkt. No. 6. B. Legal Background Firm Waiver Rule “This court has adopted a firm waiver rule under which a party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue . . . for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). “[O]nly an objection that is sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute will advance the policies . . . that led us to adopt a waiver rule in the first instance.” Id. We have delineated two exceptions to the rule: (1) when “a pro se litigant has not been informed of the time period for objecting and the consequences of failing to 1094, 1096 n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . . were not included in the record on appeal, but they are accessible from the district court docket. We may therefore take judicial notice of the filings.”). 3 Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 4 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 relevant to the second exception include “a pro se litigant’s effort to comply [with the objection requirement], the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised.” Morales-Fernandez, 418 F.3d at 1120. COA A state prisoner must obtain a COA to appeal denial of § 2254 relief. See 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). To receive a COA, the petitioner must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and must show “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). When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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. II. DISCUSSION Mr. Ford has waived any right to appeal under the firm waiver rule because he did not object to the magistrate judge’s Recommendation. 4 Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 5 The first exception to the firm waiver rule is inapplicable because the magistrate judge informed Mr. Ford he had 14 days to timely file objections to the Recommendation and that failure to do so may bar appellate review. The second exception also does not apply. Mr. Ford has not argued otherwise to this court. He has not shown that he made any effort to challenge or object to the magistrate judge’s Recommendation, offered an explanation for his failure to comply with the requirement to object, or provided a discussion on the importance of reviewing the district court’s handling of the mixed petition. The firm waiver rule thus bars our appellate review and precludes the grant of a COA. See, e.g., Fierro v. Smith, 741 F. App’x 558, 561 (10th Cir. 2018) (unpublished); United States v. Arroyo-Gonzales, 316 F. App’x 761, 763-64 (10th Cir. 2009) (unpublished); Loyd v. Snedeker, 119 F. App’x 257, 259 (10th Cir. 2005) (unpublished). 3 As an alternative ground for appellate waiver, Mr. Ford does not address in his brief to this court the district court’s rationale for dismissing his § 2254 application— that it contains both unexhausted and procedurally defaulted claims and is thus a mixed petition. As a general rule, when a party fails to address an issue in the opening brief, we consider the issue waived and do not address it. See Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir. 2006) (“Wyoming did not address this issue in its opening 3 Unpublished cases are not binding precedent, but we may consider them for their persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 5 Appellate Case: 26-1314 Document: 16-1 Date Filed: 11/13/2026 Page: 6 appellate brief. The issue is therefore waived.”); LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 n.10 (10th Cir. 2004). This rule applies equally to pro se litigants. See Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012). III. CONCLUSION We deny Mr. Ford’s requests for a COA and to proceed ifp, and we dismiss this matter. Entered for the Court Scott M. Matheson, Jr. Circuit Judge 6