F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 23 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 GLYNDA WESLEY,

           Petitioner-Appellant,

                v.                                       No. 98-6354
                                                   (D.C. No. CIV-98-643-M)
 NEVILLE MASSEY, Warden, Mabel                           (W.D. Okla.)
 Bassett Correctional Center, and THE
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

           Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before ANDERSON, BRORBY, and BRISCOE, Circuit Judges.


       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)(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        This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Glynda Wesley appeals from the district court’s denial of her 28

U.S.C. § 2254 habeas petition. The district court granted her a certificate of

appealability. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                              I.

       In August 1984, Glynda Wesley pleaded guilty to first degree murder and

armed robbery in the District Court of Oklahoma County, Oklahoma, and was

sentenced to a term of imprisonment of life plus five years. In January 1986,

Wesley filed an application for post-conviction relief in state court seeking to

withdraw her guilty plea. The application was denied and Wesley did not appeal.

In February 1997, Wesley filed a second application for post-conviction relief in

state court attacking the voluntariness of her guilty plea.   1
                                                                  The trial court denied

the application and the Oklahoma Court of Criminal Appeals affirmed.

       Represented by counsel, Wesley then filed a timely petition for writ of

habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The district

court referred the case to a magistrate for a report and recommendation. On May

22, 1998, the magistrate issued his report recommending that Wesley’s petition be

denied. The report expressly advised Wesley “of her right to object to this Report

and Recommendation by June 8, 1998, in accordance with 28 U.S.C. § 636 and



       1
           Plaintiff did not include a copy of either application in the record on
appeal.

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Local Civil Rule 72.1.” App., Ex. B at 8. The report also explicitly cautioned

Wesley that “failure to make timely objection to this Report and Recommendation

waives any right to appellate review of both factual and legal issues contained

therein. Moore v. United States , 

(10th Cir. 1991).”      

unequivocal admonitions, Wesley failed to file any

objections to the magistrate’s report. Accordingly, the district court entered an

order adopting the magistrate’s report and recommendation and denied the

petition. Wesley later sought a certificate of appealability which the district court

granted.

                                            II.

       The Tenth Circuit has adopted a “firm waiver rule” which provides that a

litigant’s failure to file timely objections with the district court of a magistrate’s

report and recommendation waives appellate review of both legal and factual

issues. United States v. One Parcel of Real Property      , 

, 1059 (10th

Cir. 1996) (citing Moore v. United States , 

, 659 (10th Cir. 1991)).

The fact that a district court may have chosen to review the litigant’s claims de

novo does not preclude application of the waiver rule.      

With respect

to parties represented by counsel, only if the “ends of justice” compel us to reach

the merits will we not invoke this waiver policy.      Talley v. Hesse , 

,

1413 (10th Cir. 1996). Although we have never defined “ends of justice” in this


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context, we have excused the failure to file timely objections only in the rare

circumstance in which a represented party did not receive a copy of the

magistrate’s report.   See Tesoro v. Colorado , No. 97-1048, 

(10th Cir. Dec. 23, 1997),   cert. denied , 

(1998). There has been

no such claim in the case at bar. Wesley concedes, in fact, that his failure to

object to the magistrate’s report is attributable entirely to his counsel’s

“inadvertence.” We thus conclude Wesley has waived his right to appellate

review.

       The judgment of the district court is AFFIRMED.

                                         Entered for the Court

                                         Mary Beck Briscoe
                                         Circuit Judge




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