                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 3 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 02-2102
                                             D.C. No. CIV-01-1242 LH/KBM
v.
                                                   and CR-99-1329 LH
                                                    (D. New Mexico)
HIPOLITO ARAGON,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      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); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      The case is before this court on Appellant Hipolito Aragon’s request for a

certificate of appealability (“COA”). Aragon seeks a COA so he can appeal the



      *
       This order and judgment is not binding precedent, except under the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.
district court’s denial of his motion to vacate, set aside, or correct sentence

brought pursuant to 28 U.S.C. § 2255.    See 28 U.S.C. § 2253(c)(1)(B) (providing

that a petitioner may not appeal the denial of a § 2255 motion unless he first

obtains a COA). Aragon pleaded guilty to various drug and firearms charges. He

filed the instant § 2255 motion on October 29, 2001 raising five claims for relief.

Three of the claims involved Aragon’s allegations that the indictment returned

against him was legally defective and that the statutes under which he was

charged are unconstitutional. The district court dismissed those three claims on

December 6, 2001, and ordered the government to respond to the two remaining

claims. Those two claims involved Aragon’s assertion that he received

ineffective assistance of counsel and, as a result, his guilty plea was involuntary.

      After the government’s response was filed, a report and recommendation

was prepared by a magistrate judge. The magistrate judge analyzed the merits of

Aragon’s claims and recommended dismissing them. Aragon was given notice in

the report and recommendation that he was required to file any objections he

might have within ten days after receiving the report. The notice specifically

warned him that the failure to file objections may constitute a waiver of those

objections on subsequent appellate review. Aragon did not file any objections.

The district court adopted the magistrate judge’s report and recommendation and

dismissed Aragon’s two remaining claims.


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       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). “Our waiver rule provides that the failure to

make timely objection to the magistrate’s findings or recommendations waives

appellate review of both factual and legal questions.”       Id. Aragon does not argue

that either of the two exceptions to the firm waiver rule apply in this case.    See

Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996) (“This rule does not

apply, however, when . . . the magistrate’s order does not clearly apprise a pro se

litigant of the consequences of a failure to object.”);    Moore , 950 F.2d at 659

(“The waiver rule as a procedural bar need not be applied when the interests of

justice so dictate.”). Further, in his appellate brief Aragon does not challenge the

district court’s dismissal of the three claims which were not discussed in the

magistrate’s report and recommendation.

       Aragon is not entitled to a COA unless he can make “a substantial showing

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

make that showing by demonstrating that: (1) the issues raised are debatable

among jurists, (2) a court could resolve the issues differently, or (3) the questions

presented deserve further proceedings.       See Slack v. McDaniel , 529 U.S. 473,

483-84 (2000). Based on our review of Aragon’s request for a COA, his

appellate brief, the report and recommendation, the district court’s orders, and


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the entire record before us, we conclude that the district court’s disposition of

Aragon’s § 2255 motion is not deserving of further proceedings, debatable

among jurists of reason, or subject to different resolution on appeal.

Accordingly, Aragon has failed to make the required substantial showing of the

denial of a constitutional right and is not entitled to a COA.   See 28 U.S.C. §

2253(c)(1)(b). This court    denies Aragon’s request for a COA and     dismisses this

appeal. Aragon’s request to proceed       in forma pauperis on appeal is denied .

                                           ENTERED FOR THE COURT



                                           Michael R. Murphy
                                           Circuit Judge




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