Dunkle v. Newton-Embry , 328 F. App'x 596 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
May 18, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LAURA L. DUNKLE,
Petitioner - Appellant,
No. 08-6276
v. (D.C. No. 08-CV-00833-R)
(W.D. Okla.)
MILLICENT NEWTON-EMBRY,
Warden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
Petitioner Laura Dunkle, state inmate appearing pro se, seeks a certificate
of appealability (“COA”) allowing her to appeal the district court’s order
adopting the magistrate judge’s report and recommendation that denied relief on
her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because
Ms. Dunkle fails to make “a substantial showing of the denial of a constitutional
right” as required by 28 U.S.C. § 2253(c)(2), we deny her request and dismiss the
appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In 2004, in Oklahoma state court, Ms. Dunkle was convicted of first-degree
murder and sentenced to life imprisonment. I R. Proper at 522. On direct appeal
to the Oklahoma Court of Criminal Appeals (OCCA), the court reversed the
conviction and remanded the case for a new trial. Dunkle v. State, 139 P.3d 228(Okla. Crim. App. 2006). The court found reversible error in the admission of
improper character evidence and admission of computer-generated reconstructions
of the crime scene. Id. at 239-42, 248-51. At the second trial, held in 2006, Ms.
Dunkle was again convicted by a jury of first-degree murder and sentenced to life
imprisonment. I R. Proper at 447, 467-68. The OCCA affirmed the conviction
and sentence. R. Doc. 1 at 15-17.
On August 11, 2008, Ms. Dunkle filed a petition for a writ of habeas
corpus, 28 U.S.C. § 2254, arguing the same five grounds for relief raised before
the OCCA. Ms. Dunkle claimed: (1) the testimony of Sheriff McMullen
improperly bolstered the state’s case, vouched for the credibility of the other state
witnesses, and opined as to her guilt, thus depriving her of a fair trial; (2) several
expert witnesses for the state improperly provided personal opinions as to guilt;
(3) the admission of a letter handwritten by Ms. Dunkle was irrelevant and
prejudicial and warranted a new trial; (4) ineffective assistance of trial counsel;
(5) cumulative errors warrant a new trial. R. Doc. 1 at 5. The magistrate judge,
to whom the case was referred, provided a detailed report and recommended that
the habeas petition be denied. R. Doc. 12. Through a personal letter to the court,
Ms. Dunkle noted her disagreement with the medical examiner’s testimony,
questions asked of her son, and the fact that defense counsel did not offer certain
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testimony on her behalf. R. Doc. 13. Additionally, Ms. Dunkle filed a formal
objection to the report and recommendation, addressing her ineffective assistance
of counsel claim by raising new factual issues not before the magistrate judge.
R. Doc. 15. The district court adopted the report and recommendation of the
magistrate judge and denied the petition. The district court noted that Ms.
Dunkle’s objections only addressed issues not before the magistrate judge and
were therefore waived. R. Doc. 16.
Ms. Dunkle now seeks to appeal, raising the same issues contained in her
objection to the magistrate’s report and recommendation, as well as new issues
not raised below. Concerning her ineffective assistance of trial counsel claim, she
argues that she was not able to present witnesses on her behalf, raises issues
regarding her police interrogation and the custody of her children, and reiterates
her version of the facts in the underlying case.
Generally, “a federal appellate court does not consider an issue not passed
upon below” unless “the proper resolution is beyond any doubt” or “injustice
might otherwise result.” Johnson v. Champion, 288 F.3d 1215, 1229 (10th Cir.
2002) (quoting Singleton v. Wulff, 428 U.S. 106, 120-21 (1976)). We do not find
either exception applicable here. The majority of Ms. Dunkle’s objections to the
report and recommendation raised new issues, and did not address the findings of
the magistrate judge. Her appeal primarily reiterates her initial objections and
additionally raises new concerns not before the magistrate judge or the district
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court. Therefore, because these issues were not raised, we do not consider them
on appeal. Johnson, 288 F.3d at 1229. To the extent that Ms. Dunkle seeks to
appeal those issues properly raised, she has not met the standards required in
28 U.S.C. § 2254(d). See Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Therefore, we DENY COA, DENY IFP status, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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