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JUN 30 1997
PATRICK FISHER
TENTH CIRCUIT
Clerk
JEFFREY R. MULBERRY,
Petitioner - Appellant,
No. 97-1027
v.
(D. Colorado)
RANDY HENDERSON,
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This order and judgment is not binding precedent, except under the doctrines of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.
*
Substantially for the reasons stated in the magistrate judges Report and
Recommendation, we conclude that Mr. Mulberrys petition does not make out a
substantial showing of the denial of a constitutional right. Accordingly, we
DENY Mr. Mulberrys 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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