                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                       UNITED STATES CO URT O F APPEALS
                                                                September 23, 2008
                                                      Elisabeth A. Shumaker
                                TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA ,

                 Plaintiff -A ppellee,                   No. 08-2038
          v.                                        District of New M exico
 M A RTIN SA A V ED RA -                     (D.C. Nos. 2:06-CR-00615-W J-1 &
 VILLASENOR ,                                    1:07-CV -00946-W J-RLP)

                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before T AC HA , KE LL Y and M cCO NNELL , Circuit Judges.


      M artin Saavedra-Villasenor , a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that M r. Saavedra-Villasenor has

failed to make “a substantial showing of the denial of a constitutional right,” w e

deny his request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On August 18, 2006, M r. Saavedra-Villasenor, an alien, pled guilty to re-

entering the United States illegally after being deported, in violation of 8 U.S.C.

§§ 1326(a)(1) and (a)(2). The indictment alleged that he had a prior aggravated

felony conviction for “Domestic Battery, Second Offense.” The presentence

report recommended a sixteen level enhancement on account of M r. Saavedra-

Villasenor’s prior felony domestic battery conviction. M r. Saavedra-Villasenor

made no objection to the recommended enhancement. At the plea hearing, after

the prosecutor said that M r. Saavedra-Villasenor “had been convicted of

aggravated felony, that being domestic battery, second offense,” the defendant

confirmed that this statement was correct. The district court then sentenced M r.

Saavedra-Villasenor to a term of 77 months in prison followed by three years of

supervised release.

       After sentencing, M r. Saavedra-Villasenor filed a motion to vacate, set

aside, or correct his sentence under 28 U.S.C. 2255. He argued that his counsel

was ineffective because he failed to investigate the underlying felony of domestic

violence, which Petitioner claimed was primarily for verbal abuse. The

magistrate judge filed a report recommending dismissal of the petition. The

report concluded that M r. Saavedra-Villasenor had two prior convictions for

domestic battery amounting to an aggravated felony under federal law, and that

M r. Saavedra-Villasenor read the plea agreement, reviewed it with his attorney,

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and voluntarily signed it. M r. Saavedra-Villasenor failed to file any written

objections to the magistrate judge’s report or recommendations within the

requisite ten-day period. The D istrict Court accepted the magistrate judge’s

recommendations, issuing an order denying Petitioner habeas relief.

                                     Discussion

      1. Certificate of Appealability

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation

marks omitted). W here, as here, the district court denies habeas relief on

procedural grounds, the petitioner must demonstrate that “jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Id. at 478.




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      By failing to file objections to the magistrate judge’s report and

recommendation, 1 the petitioner has waived the right to appellate review on the

merits of the district court’s order. See M orales-Fernandez v. INS, 418 F.3d

1116, 1119 (10th Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 147-48

(1985). There are two exceptions to the waiver rule: (1) where a pro se litigant

was not informed of the time period for objecting and the consequences of failing

to do so, or (2) w here the “interests of justice” require review. See M orales-

Fernandez, 418 F.3d at 1119; see also M oore v. United States, 950 F.2d 656, 659

(10th Cir. 1991).

      Neither exception applies. The magistrate judge’s report and

recommendation explicitly stated in its first footnote that a party must file

objections within ten days of service if appellate review is desired. The relevant

paragraph ends by stating, “If no objections are filed, no appellate review will be

allowed.” The first exception therefore does not apply.

      As to the “interests of justice” exception, we have held that this is similar

to reviewing for plain error under Fed. R. Crim. P. 52(b). M orales-Fernandez,

418 F.3d at 1120; see United States v. Olano, 507 U.S. 725, 736 (1993)

(describing plain error review). To satisfy this standard, a petitioner must show

that the district court committed error that is plain, affects substantial rights, and

      1
       The petitioner’s “traverse motion”does not qualify as a written objection to
the report and recommendation, as it was filed before the magistrate judge issued
his report and recommendation.

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“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” See United States v. Haney, 318 F.3d 1161, 1166-67 (10th Cir.

2003)(en banc)(quoting United States v. Olano, 507 U.S. at 732). Only if the

district court committed plain error with respect to the characterization of

petitioner’s prior conviction or with respect to his claim of ineffective assistance

of counsel may we exercise our discretion and reach the merits of his claim.

      2. Aggravated Felony

      M r. Saavedra-Villasenor argues that his prior conviction was only a

misdemeanor and not an aggravated felony. However, the record before the

district court showed (1) that he pleaded guilty to an indictment that listed his

previous offense as an aggravated felony conviction for “Domestic Battery,

Second Offense”; (2) that he filed no objection to the presentence report’s

recommendation of a sixteen level enhancement on account of his prior felony

domestic battery conviction, see Fed. R. Crim. P. 32(i)(3)(A) (the court “may

accept any undisputed portion of the presentence report as a finding of fact”); and

(3) that he explicitly admitted at the plea hearing that he “had been convicted of

aggravated felony, that being domestic battery, second offense.” M r. Saavedra-

Villasenor failed to present any evidence that his past conviction was not an

aggravated felony. Based on this record, the district court did not com mit error,

let alone plain error, in finding that the enhancement applied.




                                           -5-
      3. Ineffective Assistance of Counsel

      M r. Saavedra-Villasenor also argues that his counsel provided ineffective

assistance by not investigating the nature of his convictions or objecting to their

classification. To succeed on an ineffective assistance of counsel claim, a

defendant must show that his counsel’s representation fell below an objective

standard of reasonableness and that the deficiency prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). As both the magistrate

judge and district court concluded, M r. Saavedra-Villasenor could show neither of

the Strickland requirements. Counsel’s failure to further investigate his client’s

past convictions was not objectively unreasonable under these circumstances.

      Under 8 U.S.C. § 1101(a)(43), an aggravated felony includes, inter alia, a

state or federal “crime of violence for which the term of imprisonment [is] at least

one year.” The Petitioner incurred his prior conviction in Illinois. Under Illinois

law, domestic battery is a Class A M isdemeanor, but is considered a Class 4

Felony if it is a second-time offense. 720 I LL . C OMP . S TAT . A NN . 5/12-3.2(b)

(LexisNexis 2008). 2 A Class 4 Felony is punishable by no less than one year and

no more than three years. 730 Ill. Comp. Stat. Ann. 5/5-8-1(a)(7) (LexisNexis

2008). Because domestic battery is a violent crime, and a second domestic




      2
        Neither party has expressly stated when Petitioner was convicted of
domestic battery. However, this particular provision of Illinois law has been in
effect since July 1, 1994.

                                           -6-
battery offense is punishable in Illinois by no less than one year in prison, it is an

aggravated felony under 8 U.S.C. § 1101(a)(43).

      No reason existed for Petitioner’s counsel to contest the classification of

the prior conviction, especially considering M r. Saavedra-Villasenor’s repeated

affirmations of it. Although he now asserts in his brief before this court that he

was sentenced only to seven months’ probation, there is no evidence in the record

that he received a sentence less than the minimum the statute specifies. To show

ineffective assistance of counsel, the burden is on the petitioner to present

evidence and to prove the facts underlying his claim. United States v. Cronic,

466 U.S. 648, 658 (1984). Petitioner failed to present any evidence to the district

court that tended to prove his prior sentence was for less than one year or the

prior conviction was not an aggravated felony. The district court did not commit

the equivalent of plain error w hen it rejected a claim based on no evidence.

                                      Conclusion

      Accordingly, we D EN Y M r. Saavedra-Villasenor’s request for a COA and

DISM ISS this appeal.

      Petitioner’s motion to proceed in form a pauperis is GRANTED.

                                                      Entered for the Court,

                                                      M ichael W . M cConnell
                                                      Circuit Judge




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