F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         February 10, 2006
                                TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                           Clerk of Court

 DANIEL O’NEILL,
              Petitioner-Appellant,                       No. 05-2213
 v.                                            (D.C. No. CIV-04-918 MCA/DJS)
 JAMES JANECKA, Warden;                                  (D. New Mex.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,
              Respondents-Appellees.


                                      ORDER


Before HENRY, McKAY, and EBEL, Circuit Judges.




      Mr. O’Neill is currently serving a thirty-three year sentence in New Mexico

state prison to be followed by two years parole. In his 28 U.S.C. § 2254 petition,

he alleges ineffective assistance of counsel and that the state failed to properly

consider his post-conviction motions. The magistrate judge recommended to the

district court that Mr. O’Neill’s petition be dismissed due to failure to exhaust the

available state law remedies and because the petition was time-barred. Mr.

O’Neill failed to object to the magistrate judge’s recommendation, and the district

court adopted the recommendation and dismissed Mr. O’Neill’s petition. The

district court also denied Mr. O’Neill’s request for a certificate of appealability.
Mr. O’Neill now appeals that dismissal to this court.

         In an August 11, 2005 order from this court, we requested that in his

appellate brief Mr. O’Neill discuss whether he had waived his right to appeal his

petition’s dismissal when he failed to object to the magistrate judge’s

recommendation. Mr. O’Neill did not explain his failure to timely object to the

magistrate judge’s recommendation. That failure to object to the magistrate’s

recommendation now bars him from seeking appellate review of the district

court’s dismissal. See Sealock v. Colorado, 

, 1209 (10th Cir.

2000).

         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, 

,

484 (2000) (quotation omitted).

         We have carefully reviewed Mr. O’Neill’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 Mr. O’Neill’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For


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substantially the same reasons set forth by the magistrate judge and adopted by

the district court in its Order and Judgment of June 20, 2005, 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.” 

Mr. O’Neill’s request for a certificate of appealability and

DISMISS the appeal.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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