United States v. Aragon , 60 F. App'x 186 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2102
D.C. No. CIV-01-1242 LH/KBM
v.
and CR-99-1329 LH
(D. New Mexico)
HIPOLITO ARAGON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
The case is before this court on Appellant Hipolito Aragon’s request for a
certificate of appealability (“COA”). Aragon seeks a COA so he can appeal the
*
This order and judgment is not binding precedent, except under the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.
district court’s denial of his motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing
that a petitioner may not appeal the denial of a § 2255 motion unless he first
obtains a COA). Aragon pleaded guilty to various drug and firearms charges. He
filed the instant § 2255 motion on October 29, 2001 raising five claims for relief.
Three of the claims involved Aragon’s allegations that the indictment returned
against him was legally defective and that the statutes under which he was
charged are unconstitutional. The district court dismissed those three claims on
December 6, 2001, and ordered the government to respond to the two remaining
claims. Those two claims involved Aragon’s assertion that he received
ineffective assistance of counsel and, as a result, his guilty plea was involuntary.
After the government’s response was filed, a report and recommendation
was prepared by a magistrate judge. The magistrate judge analyzed the merits of
Aragon’s claims and recommended dismissing them. Aragon was given notice in
the report and recommendation that he was required to file any objections he
might have within ten days after receiving the report. The notice specifically
warned him that the failure to file objections may constitute a waiver of those
objections on subsequent appellate review. Aragon did not file any objections.
The district court adopted the magistrate judge’s report and recommendation and
dismissed Aragon’s two remaining claims.
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This court has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate.” Moore v. United States ,
950 F.2d 656, 659 (10th Cir. 1991). “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.” Id. Aragon does not argue
that either of the two exceptions to the firm waiver rule apply in this case. See
Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996) (“This rule does not
apply, however, when . . . the magistrate’s order does not clearly apprise a pro se
litigant of the consequences of a failure to object.”); Moore , 950 F.2d at 659(“The waiver rule as a procedural bar need not be applied when the interests of
justice so dictate.”). Further, in his appellate brief Aragon does not challenge the
district court’s dismissal of the three claims which were not discussed in the
magistrate’s report and recommendation.
Aragon is not entitled to a COA unless he can make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Aragon can
make that showing by demonstrating that: (1) the issues raised are debatable
among jurists, (2) a court could resolve the issues differently, or (3) the questions
presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473,
483-84 (2000). Based on our review of Aragon’s request for a COA, his
appellate brief, the report and recommendation, the district court’s orders, and
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the entire record before us, we conclude that the district court’s disposition of
Aragon’s § 2255 motion is not deserving of further proceedings, debatable
among jurists of reason, or subject to different resolution on appeal.
Accordingly, Aragon has failed to make the required substantial showing of the
denial of a constitutional right and is not entitled to a COA. See 28 U.S.C. §
2253(c)(1)(b). This court denies Aragon’s request for a COA and dismisses this
appeal. Aragon’s request to proceed in forma pauperis on appeal is denied .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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