* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 

### JAN 22 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CUAHUTEMOC ANTILLON-PEREZ, Defendant - Appellant. No. 02-2192 D.C. No. CIV-02-317 BB/KBM (D. New Mexico)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and O’BRIEN , Circuit Judges.
Defendant-Appellant Cuahutemoc Antillon-Perez (“Def endant”), a Mexican citizen, was arrested for attempting to enter the U nited States illegally after having been deported twice before. (Magistrate’s P roposed Findings and Recommended Disposition at 1.) He pled guilty to acharge of reentry after prior deportation and was sentenced to 46 months in priso n. (Id. at 1, 4.)- 2 -

Defendant filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct sentence with the United States District Co urt 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 j udge to whom the case was assigned rejected both claims on the merits and rec ommended that Defendant’s motion be denied. (Id. at 4-6.) The magistrate’s recommendation was file d on May 16, 2002. Pursuant to Federal Rule of Civil Pr ocedure 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 Judg e’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 i nstructing Defendant to address, in his opening brief, why his failure to f ile written objections to the magistrate’s recommendation should not waive appell ate 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 plaintif f to object to a magistrate judge’s recommendations results in a waiver of appe llate review.”). Defendant appears to have ignored the show-cause order; his o pening brief—filed on August 27—fails to address the waiver issue.- 3 -

On October 1, 2002, the district court denied Defen dant’s request for a Certificate of Appealability. Although Defendant d id not subsequently file a request for COA with this court, we will construe h is notice of appeal as a request for COA, pursuant to Federal Rule of Appellate Proc edure 22(b)(2). Defendant failed to file written objections to the magistrate’s report and neglected to explain, despite our issuance of a sho w-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 DISMIS S Defendant’s appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge