                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JUN 30 1997
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 JEFFREY R. MULBERRY,

               Petitioner - Appellant,                      No. 97-1027
          v.                                               (D. Colorado)
 RANDY HENDERSON,                                      (D.C. No. 96-K-1822)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Jeffrey R. Mulberry filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 alleging the following four issues:



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
             I. The evidence was insufficient to support the trial courts
      finding that Mr. Mulberry willfully disobeyed a lawful court order to
      testify given the trial courts ambiguous ruling regarding the scope of
      use of immunity as it applied to Mr. Mulberry.

            II. The trial court erred in holding Mr. Mulberry in contempt
      of court when Mr. Mulberry only expressed an entent (sic) to commit
      a contemptuous act in the future.

            III. The trial court erred in holding Mr. Mulberry in criminal
      contempt of court when he did not first consider using civil
      contempt.

           IV. The trial court abused its discretion in imposing the
      maximum sentence for summary contempt whem Mr. mulberry (sic)
      HAD NO INTENT TO OBSTRUCT JUSTICE.

      As indicated by copies supplied by Mr. Mulberry of his briefs filed in the

Colorado Court of Appeals, these issues have been exhausted in the state courts,

having been raised and decided adversely to Mr. Mulberry’s claims.

      Mr. Mulberry’s federal habeas petition was referred to a magistrate judge

who recommended dismissal of the petition in a Report and Recommendation

filed December 11, 1996. That Recommendation was adopted by the district

court, along with an order filed December 31, 1996, overruling the petitioner’s

objections. Subsequently, the district court denied a certificate of appealability.

      This matter is before us on Mr. Mulberry’s renewed application for a

certificate of appealability accompanied by a brief on appeal which, in the guise

of purportedly restating or clarifying the matters raised in his original petition,

raises new issues, including ineffective assistance of counsel.

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      Substantially for the reasons stated in the magistrate judge’s Report and

Recommendation, we conclude that Mr. Mulberry’s petition does not make out a

substantial showing of the denial of a constitutional right. Accordingly, we

DENY Mr. Mulberry’s application for a certificate of appealability and DISMISS

the appeal. See 28 U.S.C. § 2253(c)(1) and (2). We do not consider issues not

properly raised in a timely fashion before the district court and not exhausted in

state court, or issues newly raised on appeal.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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