Tesoro v. State of Colorado ( 1997 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 23 1997
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ULISES TESORO,
    Petitioner-Appellant,
    v.                                                  No. 97-1048
    (D.C. No. 94-WM-171)
    STATE OF COLORADO,                                   (D. Colo.)
    Respondent-Appellee.
    ORDER AND JUDGMENT *
    Before PORFILIO, KELLY, and HENRY, Circuit Judges.
    After examining petitioner’s opening brief, the parties’ memorandum
    briefs, and the appellate record, this panel has determined unanimously to grant
    the parties’ request for a decision on the briefs without oral argument. See
    Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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    This order and judgment is not binding precedent, except under the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, who has at all relevant times been represented by counsel, seeks
    review of the district court’s order denying his petition for habeas relief under
    
    28 U.S.C. § 2254
    . In this case, there are two preliminary considerations which
    determine if petitioner can proceed on appeal.
    We first consider whether petitioner waived appellate review by failing to
    object to the magistrate judge’s recommendation. On September 22, 1994, the
    magistrate judge filed his recommendation. On October 20, 1994, petitioner filed
    a pro se motion for appointment of new counsel. Noting petitioner’s failure to
    file objections to the recommendation, the district court denied the habeas petition
    and motion for appointment of counsel on October 25, 1994. On January 7, 1997,
    petitioner filed a motion for a ruling on the habeas petition, stating that he had
    never received a copy of the recommendation. The district court sent petitioner a
    copy of the magistrate judge’s recommendation and the district court’s order
    denying the petition. Upon petitioner’s motion, the district court later entered
    judgment denying the petition.
    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). Failure to object to the magistrate judge’s
    report and recommendation results in waiver of appellate review, unless the ends
    of justice dictate otherwise. See 
    id.
    -2-
    In this case, petitioner argues the ends of justice preclude enforcement of
    the waiver rule because he did not receive copies of either the magistrate judge’s
    recommendation or the district court’s order. Although the recommendation
    indicates that it was served on petitioner, see 
    28 U.S.C. § 636
    (b)(1) (requiring
    service of recommendation by mail on parties for ten-day time period for filing
    objections to commence running), in the interests of justice we will assume that
    petitioner did not receive notice of the recommendation, and has cause for failing
    to file objections. We therefore decline to dismiss this appeal under the waiver
    rule.
    Also, before we will consider the merits of an appeal, petitioner must
    secure a certificate of probable cause from this court, pursuant to 
    28 U.S.C. § 2253
    . 1 Based upon our review of the record as a whole, we conclude that
    petitioner has failed to make a substantial showing of the denial of a
    1
    Petitioner has failed to make an express request for a certificate of probable
    cause. His notice of appeal is deemed to represent such a request. See Velarde v.
    Shulsen, 
    757 F.2d 1093
    , 1096 (10th Cir. 1985).
    Because petitioner filed his habeas petition before enactment of the
    Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
    104-132, 
    110 Stat. 1214
    , AEDPA’s certificate of appealability requirements do
    not apply to this appeal. See United States v. Kunzman, 
    125 F.3d 1363
    , 1364 &
    n.2 (10th Cir. 1997). Instead, the pre-AEDPA certificate of probable cause
    requirements apply here. Regardless of the label we attach to the requirements,
    petitioner’s substantive burden is the same, see Lennox v. Evans, 
    87 F.3d 431
    ,
    434 (10th Cir. 1996), cert. denied, 
    117 S. Ct. 746
     (1997), overruled in part by
    Kunzman, 
    125 F.3d at
    1365 n.2.
    -3-
    constitutional right. See Barefoot v. Estelle, 
    463 U.S. 880
    , 893 (1983); Lennox v.
    Evans, 
    87 F.3d 431
    , 434 (10th Cir. 1996), cert denied, 
    117 S. Ct. 746
     (1997),
    overruled in part by United States v. Kunzman, 
    125 F.3d 1363
    , 1365 n.2 (10th
    Cir. 1997).
    We, therefore, DENY a certificate of probable cause and DISMISS the
    appeal.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
    -4-