* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 23 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ULISES TESORO,

Petitioner-Appellant,

v. STATE OF COLORADO,

Respondent-Appellee. No. 97-1048 (D.C. No. 94-WM-171) (D. Colo.)

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 de termined unanimously to grant the parties’ request for a decision on the briefs w ithout oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The ca se is therefore ordered submitted without oral argument.-2-

Petitioner, who has at all relevant times been repr esented by counsel, seeks review of the district court’s order denying his pe tition for habeas relief under 28 U.S.C. § 2254. In this case, there are two prel iminary 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. O n September 22, 1994, the magistrate judge filed his recommendation. On Octo ber 20, 1994, petitioner filed a pro se motion for appointment of new counsel. No ting petitioner’s failure to file objections to the recommendation, the districtcourt 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 habea s petition, stating that he had never received a copy of the recommendation. The d istrict court sent petitioner a copy of the magistrate judge’s recommendation and t he district court’s order denying the petition. Upon petitioner’s motion, th e district court later entered judgment denying the petition. This court has “adopted a firm waiver rule when a p arty 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 obj ect to the magistrate judge’s report and recommendation results in waiver of appe llate review, unless the ends of justice dictate otherwise. See id.1 Petitioner has failed to make an express request fo r a certificate of probable

cause. His notice of appeal is deemed to representsuch 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 19 96 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, AEDPA’s certificate of app ealability 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 certi ficate of probable cause requirements apply here. Regardless of the label w e 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- In this case, petitioner argues the ends of justice preclude enforcement of the waiver rule because he did not receive copies o f either the magistrate judge’s recommendation or the district court’s order. Alth ough 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 te n-day time period for filing objections to commence running), in the interests o f 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 dismis s this appeal under the waiver rule. Also, before we will consider the merits of an appe al, petitioner must secure a certificate of probable cause from this co urt, pursuant to 28 U.S.C. § 2253. 1 Based upon our review of the record as a whole, w e conclude that petitioner has failed to make a substantial showing of the denial of a-4-

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 byUnited 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