F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 25 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-2107
(D.C. No. CIV-97-209-JC/LCS)
ANTHONY MICHAEL MORALES, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , McKAY , and LUCERO , 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This order and judgment is not binding precedent, except under the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.
Defendant was convicted in 1993 of two counts of being a felon in
possession of a firearm and was sentenced, inter alia, to 90 months in prison
on each count, to be served concurrently. His convictions and sentences were
affirmed on appeal. United States v. Morales, No. 93-2284, 1994 WL 715914
(10th Cir. Dec. 27, 1994) (unpublished). In February 1997, he filed the instant
motion pursuant to 28 U.S.C. § 2255 raising seven grounds for relief in seeking
to vacate his convictions. After the district court denied six of the grounds,
defendant filed a notice of appeal (No. 97-2278), which was voluntarily dismissed
(as premature) on January 7, 1998. On March 3, 1998, the magistrate judge
issued proposed findings and recommended denial of the remaining ground for
relief, ineffective assistance of counsel. Having received no objections to the
magistrate judge’s report and recommendation, the district court adopted it on
March 28, and dismissed the action with prejudice. Defendant filed a timely
notice of appeal, challenging only the district court’s denial of his ineffectiveness
of counsel claim.
We construe defendant’s opening brief as a request for a certificate of
appealability pursuant to 28 U.S.C. § 2253(c). However, we conclude that
defendant, who has been represented by counsel in both the district court and
on appeal, has waived his right to appeal by failing to file objections to the
magistrate judge’s report and recommendation that he challenges.
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[W]e have adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate. 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. The waiver rule as a procedural bar need not be
applied when the interests of justice so dictate.
Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (citations and
footnote omitted); see also Niehaus v. Kansas Bar Ass’n , 793 F.2d 1159, 1164-65
(10th Cir. 1986). In a supplemental brief to this court regarding the waiver issue,
defendant has provided no explanation for failing to object to the magistrate
judge’s report, but he contends that the interests of justice warrant appellate
consideration of the merits of his claim. We disagree. The magistrate judge
made detailed factual findings that are supported by the record, and his legal
analysis based on those findings is correct. Moreover, defendant makes no
attempt to show how the magistrate judge erred.
Defendant’s request for a certificate of appealability is DENIED, and the
appeal is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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