* This order and judgment is not binding precedent, except under the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. 

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 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. 
-2-

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. 
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-

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
-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 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