F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 22 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2192
v. D.C. No. CIV-02-317 BB/KBM
(D. New Mexico)
CUAHUTEMOC ANTILLON-PEREZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and O’BRIEN, Circuit Judges.
Defendant-Appellant Cuahutemoc Antillon-Perez (“Defendant”), a Mexican
citizen, was arrested for attempting to enter the United States illegally after
having been deported twice before. (Magistrate’s Proposed Findings and
Recommended Disposition at 1.) He pled guilty to a charge of reentry after prior
deportation and was sentenced to 46 months in prison. (Id. at 1, 4.)
*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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 filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct sentence with the United States District Court for the District of New
Mexico. (Id.) He raised two ineffective assistance of counsel claims with respect
to his sentence. On May 15, 2002, the magistrate judge to whom the case was
assigned rejected both claims on the merits and recommended that Defendant’s
motion be denied. (Id. at 4-6.) The magistrate’s recommendation was filed on
May 16, 2002. Pursuant to Federal Rule of Civil Procedure 72(b), Defendant then
had ten days to file any objections, in writing, to the magistrate’s
recommendation. Defendant filed no such objections. On June 25, the district
court entered an order adopting the Magistrate Judge’s recommendation and
dismissing Defendant’s § 2255 motion with prejudice. On July 11, Defendant
timely filed a notice of appeal.
On July 26, this Court entered a show-cause order instructing Defendant to
address, in his opening brief, why his failure to file written objections to the
magistrate’s recommendation should not waive appellate review of both the
factual and legal issues in his case. See, e.g., Fottler v. United States, 73 F.3d
1064, 1065 (10th Cir. 1996) (“Failure of a plaintiff to object to a magistrate
judge’s recommendations results in a waiver of appellate review.”). Defendant
appears to have ignored the show-cause order; his opening brief—filed on August
27—fails to address the waiver issue.
-2-
On October 1, 2002, the district court denied Defendant’s request for a
Certificate of Appealability. Although Defendant did not subsequently file a
request for COA with this court, we will construe his notice of appeal as a request
for COA, pursuant to Federal Rule of Appellate Procedure 22(b)(2).
Defendant failed to file written objections to the magistrate’s report and
neglected to explain, despite our issuance of a show-cause order, why he failed to
do so. For these reasons, he has failed to make a substantial showing of the
denial of a constitutional right. Accordingly, we AFFIRM the district court’s
denial of a Certificate of Appealability and DISMISS Defendant’s appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-