Newton v. Paolino ( 2001 )


Menu:
  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 10 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    LESTER L. NEWTON,
    Petitioner-Appellant,
    v.                                                   No. 00-1301
    (D.C. No. 00-D-255)
    JOSEPH PAOLINO, Warden of                              (D. Colo.)
    Centennial Correction Facility;
    KENNETH SALAZAR, Attorney
    General of the State of Colorado,
    Respondents-Appellees.
    ORDER AND JUDGMENT           *
    Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
    After examining the briefs and 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.
    *
    This order and judgment is not binding precedent, except under the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.
    Petitioner Lester L. Newton, a Colorado state prisoner convicted by a jury
    of various counts of burglary, kidnaping of a sexual assault victim, aggravated
    robbery, and assault, seeks a certificate of appealability (COA) to challenge the
    district court’s order denying his petition for a writ of habeas corpus filed
    pursuant to 
    28 U.S.C. § 2254
    .        See 
    28 U.S.C. § 2253
    (c)(1)(A) (no appeal unless
    COA issued). We deny issuance of a COA and dismiss the appeal.
    The following is a summary of the underlying facts as stated in the decision
    of the Colorado Court of Appeals disposing of Newton’s direct appeal:
    [Newton] and three other armed men forced entry into the
    home occupied by the man and woman victims. Over the next
    several hours, they bound, beat, and terrorized the victims, while
    ransacking the house in search of money they believed to be present.
    The woman victim was taken to another bedroom where one of the
    men groped her genitalia and sodomized her with the barrel of his
    gun. . . . The robbers left after taking cash, jewelry and other items.
    Appellant’s App. vol. A, at 112.
    On appeal, petitioner argues he is entitled to habeas relief on the following
    grounds: (1) during jury selection, the prosecution excused a prospective juror on
    the basis of race, in violation of    Batson v. Kentucky , 
    476 U.S. 79
     (1986); (2) the
    prosecution willfully withheld exculpatory evidence from the defense, in violation
    of Brady v. Maryland , 
    373 U.S. 83
     (1963); (3) the trial court improperly allowed a
    police detective to testify that Newton was guilty and the victims were credible;
    -2-
    and (4) the trial court’s overt hostility to Newton and his attorney deprived him of
    a fair trial.
    This case is governed by the Antiterrorism and Effective Death Penalty Act
    (AEDPA). Before a COA will issue, petitioner must make “a substantial showing
    of the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). To do so, he
    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) (quotations omitted).
    The district court held that petitioner had not exhausted his claims relating
    to the police detective’s testimony and the trial court’s hostility because he had
    not provided the state courts with a fair opportunity to apply controlling federal
    legal principles. As the district court correctly stated, these claims are
    procedurally barred unless petitioner shows cause and prejudice or a fundamental
    miscarriage of justice.   Coleman v. Thompson , 
    501 U.S. 722
    , 750 (1991). In his
    reply brief, for the first time petitioner made an argument that he had exhausted
    these claims. We do not consider claims presented for the first time on appeal,
    Walker v. Mather (In re Walker)   , 
    959 F.2d 894
    , 896 (10th Cir. 1992), and we
    generally do not consider claims presented for the first time in a reply brief,
    -3-
    Codner v. United States , 
    17 F.3d 1331
    , 1332 n.2 (10th Cir. 1994). Accordingly,
    we decline to consider petitioner’s exhaustion arguments.
    We have carefully reviewed the briefs and the appendix. For substantially
    the same reasons underlying the district court’s June 29, 2000 order of dismissal,
    we conclude that petitioner “has failed to raise issues that are debatable among
    jurists, or that a court could resolve the issues differently, or that the questions
    deserve further proceedings.”   United States v. Sistrunk , 
    111 F.3d 91
    , 91 (10th
    Cir. 1997).
    The application for issuance of a COA is denied. Appeal DISMISSED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -4-