                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   April 24, 2009
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 LAWRENCE TOLBERT,

               Petitioner–Appellant,

 v.                                                     No. 08-2040
                                            (D.C. No. 1:06-cv-01022-JCH-LAM)
 ROBERT ULIBARRI; ATTORNEY                               (D.N.M.)
 GENERAL FOR THE STATE OF
 NEW MEXICO,

               Respondents–Appellees.


                                       ORDER


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      This matter is before the court on Lawrence Tolbert’s “Objection to the

U.S. COA Denial of Certificate of Application [sic] of Appealability,” which we

construe as a petition for panel rehearing. Tolbert requests that the panel revisit

its decision to apply the “firm waiver” rule that any issue not raised through

objections to a magistrate’s report is waived on appeal, Moore v. United States,

950 F.2d 656, 659 (10th Cir. 1991), in our order denying a certificate of

appealability (“COA”), Tolbert v. Ulibarri, 2008 WL 4330386 (10th Cir. Sept. 23,

2008) (unpublished). We are persuaded by his petition that we should have

construed his premature notice of appeal from the magistrate’s Proposed Findings
and Recommended Disposition as an objection, cf. Maldonado v. Snider, 12 F.

App’x 868, 870 n.1 (10th Cir. 2001) (unpublished), and we now grant panel

rehearing. We vacate our September 23, 2008, order and replace it with the order

issued herewith.

                                     Entered for the Court,




                                     ELISABETH A. SHUMAKER, Clerk




                                       -2-
                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 24, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 LAWRENCE TOLBERT,

               Petitioner–Appellant,

 v.                                                       No. 08-2040
                                              (D.C. No. 1:06-cv-01022-JCH-LAM)
 ROBERT ULIBARRI; ATTORNEY                                  (D.N.M)
 GENERAL FOR THE STATE OF
 NEW MEXICO,

               Respondents–Appellees.



                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.



      Lawrence Tolbert, a New Mexico state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. Because each of his claims lacks merit, we deny a

COA and dismiss the appeal.

                                          I

      Tolbert was convicted by a jury on three counts of criminal sexual

penetration in the first degree, one count of kidnapping in the first degree, one

count of aggravated burglary in the second degree, and one count of aggravated
battery in the third degree. He was sentenced to a total of 132 years’

imprisonment. After the New Mexico state courts rejected his direct and

collateral appeals, Tolbert filed a pro se petition for federal habeas relief on

October 20, 2006. Liberally construed, see Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991), his petition claimed ineffective assistance of trial counsel,

ineffective assistance of appellate counsel, prosecutorial misconduct, and that the

combination of these led to denial of due process. He requested an evidentiary

hearing.

      The district court referred the petition to a magistrate judge, and on

December 5, 2007, the magistrate issued a “Proposed Findings and Recommended

Disposition” (“Report”) without conducting an evidentiary hearing. The Report

recommended dismissal on the merits and noted that:

      Within ten (10) days after a party is served with a copy of these
      Proposed Findings and Recommended Disposition, that party may
      . . . file written objections to such proposed findings and
      recommended disposition. A party must file any objections . . .
      within the ten (10) day period allowed if that party wants to have
      appellate review of the proposed findings and recommended
      disposition. If no objections are filed, no appellate review will be
      allowed.

Although Tolbert did not file a motion labeled as an objection, he did file a

“Notice of Appeal” on December 19, within the ten-day period. See Fed. R. Civ.

P. 6(a)(2) (2007) (a time period in any court order of less than eleven days is

computed excluding weekends). The notice contained no substantive legal


                                         -2-
argument. On January 4, 2008, the district court adopted the Report in full and

denied the petition. It subsequently denied Tolbert a COA.

      On January 28, 2008, a panel of this court denied Tolbert’s December 19

appeal as premature. On January 30, Tolbert filed a notice of appeal from the

district court’s order adopting the Report. Because we construe the December 19

notice of appeal as an objection to the magistrate’s Report, cf. Maldonado v.

Snider, 12 F. App’x 868, 870 n.1 (10th Cir. 2001) (unpublished), we conclude

that Tolbert did not waive his right to appeal and proceed to consider his request

for a COA.

                                          II

      Because the district court did not grant Tolbert a COA, he may not proceed

absent a grant of a COA by this court. 28 U.S.C. § 2253(c)(1)(A). To obtain a

COA, Tolbert must make a “substantial showing of the denial of a constitutional

right.” § 2253(c)(2). This requires him to show “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) (quotation omitted).

      Construing his application liberally, Tolbert seeks a COA on the same

claims he made before the federal district court: (1) prosecutorial misconduct, (2)

ineffective assistance of trial counsel, (3) ineffective assistance of appellate

                                         -3-
counsel, and (4) a resulting denial of due process. In addition, he challenges the

decision not to hold an evidentiary hearing. 1

      Tolbert asserts prosecutorial misconduct for presenting evidence and

testimony that was “in error” and “unclear.” We apply the standard articulated in

Donnelly v. DeChristoforo, 416 U.S. 637 (1974), to claims of prosecutorial

misconduct when a petitioner does not allege the prosecutor’s argument directly

affected a specific constitutional right. Under Donnelly, habeas relief is available

for prosecutorial misconduct only when the misconduct is so egregious that it

renders the entire trial fundamentally unfair. Id. at 642-48. A careful review of

the record reveals that Tolbert’s complaint on this issue is that not all the forensic

evidence collected placed him at the scene of crime. In particular, he was

excluded as the source of DNA from the victim’s body cavities. However, the

DNA report did conclude that Tolbert was the source of the DNA found on the

victim’s face and bedsheet and calculated the probability of error at no more than

1 in 6.08 million. Because reasonable jurists would agree that the presentation of

inconclusive evidence does not render a trial fundamentally unfair, see Young v.


      1
        To the extent that we can discern additional claims in Tolbert’s
application for a COA and opening brief, such as improper juror influence and
double jeopardy, these claims were not raised before the federal district court, and
we decline to consider them. United States v. Jarvis, 499 F.3d 1196, 1201-02
(10th Cir. 2007). In addition, we must reject Tolbert’s claim that his state habeas
counsel was ineffective. Even construing his petition below to raise such a claim,
prisoners have no constitutional right to assistance of counsel on state collateral
attack. Coleman v. Thompson, 501 U.S. 722, 757 (1991).

                                         -4-
Workman, 383 F.3d 1233, 1238 (10th Cir. 2004), Tolbert is not entitled to relief

on this claim.

      Tolbert also claims that his trial and appellate counsel were ineffective in

failing “to get[] the courts to review” his allegations that he was convicted based

upon flawed or insufficient DNA evidence and related testimony, including in

failing to call additional witnesses. To establish ineffective assistance of counsel,

Tolbert must show (1) that his counsel’s actions fell below an objective standard

of reasonableness and (2) that this conduct prejudiced the proceedings such that,

absent counsel’s errors, the outcome would have been different. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We proceed based on “a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound

trial strategy.” Id. at 690 (quotation omitted).

      Upon reviewing the pleadings and the record, we conclude that Tolbert

cannot show that either counsel’s performance was deficient. Trial counsel

moved to suppress the DNA evidence and to exclude associated testimony, and

appellate counsel reasserted the challenge. Both attempts were unsuccessful. In

addition, counsel repeatedly challenged the DNA evidence as unreliable and

inconclusive at trial, highlighting the very weaknesses in the prosecution’s case

that have been the focus of Tolbert’s collateral challenges. We conclude that it

                                         -5-
was within the wide range of permissible trial strategy to focus on the weaknesses

in the state’s evidence rather than call an additional expert witness. See Boyle v.

McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision of which

witnesses to call is quintessentially a matter of strategy for the trial attorney.”).

Thus, reasonable jurists would agree that counsel’s performance at each level met

the constitutionally guaranteed standard.

      We construe Tolbert’s assertion that the above claims led to a denial of due

process as one of cumulative error. Cumulative error applies only when there are

two or more actual errors, and it does not apply to the accumulation of non-errors.

Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998). Because the alleged

ineffective assistance of trial and appellate counsel occurred in separate

proceedings and Tolbert has not shown prosecutorial misconduct, reasonable

jurists would agree that “there is nothing to cumulate.” Young v. Sirmons, 551

F.3d 942, 972 (10th Cir. 2008) (quotation omitted).

      Finally, Tolbert asserts that he should have been granted an evidentiary

hearing below. Because we conclude from the record before us that he is not

entitled to relief, reasonable jurists would agree that neither the magistrate nor the

district court needed to hold an evidentiary hearing. See Young, 551 F.3d at 970

(“[Petitioner’s] allegations, even assuming them to be true, are insufficient to

[require relief under] Strickland. Therefore the district court was not required to

hold a hearing.”).

                                          -6-
                                     III

     For the reasons set forth above, Tolbert’s request for a COA is DENIED

and his appeal is DISMISSED.



                                   ENTERED FOR THE COURT



                                   Carlos F. Lucero
                                   Circuit Judge




                                    -7-
