                                                                      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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