*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) and 10th Cir. R.

34.1(G). 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order and judgment is not binding precedent, except under the doctrines of law of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.

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 (“Defendant”), a Mexican

citizen, was arrested for attempting to enter the United States illegally after

having been deported twice before. (Magistrate’s Proposed Findings and

Recommended Disposition at 1.) He pled guilty to a charge of reentry after prior

deportation and was sentenced to 46 months in prison. (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 Court 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 judge to whom the case was

assigned rejected both claims on the merits and recommended that Defendant’s

motion be denied. (Id. at 4-6.) The magistrate’s recommendation was filed on

May 16, 2002. Pursuant to Federal Rule of Civil Procedure 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 Judge’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 instructing Defendant to

address, in his opening brief, why his failure to file written objections to the

magistrate’s recommendation should not waive appellate 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 plaintiff to object to a magistrate

judge’s recommendations results in a waiver of appellate review.”). Defendant

appears to have ignored the show-cause order; his opening brief—filed on August

27—fails to address the waiver issue.
- 3 -

On October 1, 2002, the district court denied Defendant’s request for a

Certificate of Appealability. Although Defendant did not subsequently file a

request for COA with this court, we will construe his notice of appeal as a request

for COA, pursuant to Federal Rule of Appellate Procedure 22(b)(2). 

Defendant failed to file written objections to the magistrate’s report and

neglected to explain, despite our issuance of a show-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 DISMISS Defendant’s appeal.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge