SHAWN R. CHAPMAN,
Before KELLY, McKAY, and LUCERO, Circuit Judges.
By failing to file an objection to the magistrate judge's Report and Recommendation, Petitioner has waived his right to appellate review of both factual and legal determinations, unless we elect to review the merits of the appeal based on the "interests of justice" exception. See Key Energy Resources Inc. v. Merrill, 230 F.3d 1197, 1199-1200 (10th Cir. 2000); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). We do not so elect.
The issues Petitioner raises on appeal are identical to those brought before the district court. To grant a certificate of appealability, Petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (1994). To meet this burden, Petitioner must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) 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. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
We have carefully reviewed Petitioner's brief, the district court's disposition, the magistrate judge's recommendation, and the record on appeal. Nothing in the facts, the record on appeal, or Petitioner's filing raises an issue which meets our standard for the grant of a certificate of appealability. For substantially the same reasons set forth by the magistrate judge and adopted by the district court in its order of October 28, 2004, we cannot say "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Id.
We DENY Petitioner's request for a certificate of appealability and his motion to proceed in forma pauperis, and we DISMISS the appeal.
Entered for the Court
Monroe G. McKay