* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designati on.

UNITED STATES COURT OF APPEALS Filed 12/20/96 FOR THE TENTH CIRCUIT

CHRISTINA ACKER,

Petitioner-Appellant,

v. STATE OF COLORADO,

Respondent-Appellee. No. 95-1492 (D.C. No. 94-B-2486) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because petitioner filed her notice of appeal on No vember 16, 1995, and

the district court granted her a certificate of pro bable cause on November 20, 1995, prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (signed into law April 26, 1996), that act does not apply to this appeal. Edens v. Hannigan , 87 F.3d 1109, 1112 n. 1 (10th Cir. 1996).

2 Petitioner amended her original § 2254 petition to eliminate two unexhausted claims for relief: the trial court all owed admission of evidence seized in violation of the fourth amendment and the trial court violated petitioner’s constitutional protection against self -incrimination by commenting upon her failure to testify. On appeal, however, s he reasserts her argument that the trial court violated her right not to testify at trial. This court will not consider issues abandoned in the district court. See O’Connor v. City & County of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990).

-2- Petitioner appeals from the district court’s denial of federal habeas relief, 28 U.S.C. § 2254, 1 from her Colorado conviction for first degree murd er. In her amended § 2254 petition, 2petitioner raised five grounds for relief, arguingthat the trial court erred by: 1) not allowing her to i ntroduce into evidence prior inconsistent statements made by the victim’s neighb or; 2) limiting her examination of a critical state witness, Mildred Go ble; 3) admitting hearsay evidence of statements made by the victim; 4) exclu ding all evidence of any alternate suspects; and 5) restricting petitioner’s ability to conduct her defense pro se. Liberally construing her pleadings, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), however, on appeal petitioner challe nges only the district court’s denial of habeas relief on her claims that the tria l court erred in precluding her from presenting prior inconsistent statements of th e victim’s neighbor, see-3-

Appellant’s Opening Br. at 41, and unconstitutional ly restricting her ability to defend herself pro se, id. at 45-49. For the first time on appeal, petitioner asserts th e following additional grounds for relief: 1) appellate counsel provided constitutionally ineffective assistance on direct appeal; 2) the trial court err ed in failing to instruct the jury on lesser included offenses; 3) the trial court erred in denying petitioner’s motion for a verdict of acquittal; 4) the prosecutor’s use of a contrived photographic lineup and tainted in-court identification was unconstitut ional misconduct; and 5) the prosecutor’s use of perjured hearsay testimony was unconstitutional misconduct. Liberally construing petitioner’s pleadings, her ap pellate argument challenging the state’s use of hearsay evidence of statements m ade by the victim is the same challenge to the admission of hearsay that she rais ed in her § 2254 petition, albeit for the first time in the guise of a prosecutorial misconduct claim. Nonetheless, petitioner’s failure to assert a specific objectionto the magistrate judge’s recommendation to deny relief on this claim waived appellate review, unless the ends of justice would require it. See, e.g. , Talley v. Hesse , 91 F.3d 1411, 1412- 13 (10th Cir. 1996); Soliz v. Chater , 82 F.3d 373, 375-76 (10th Cir. 1996). Because this ground for relief is unavailing, in any event, the ends of justice do not require review.-4-

In addition to the unexhausted nature of the remain der of petitioner’s newly asserted appellate arguments, see 28 U.S.C. § 2254(b); Hernandez v. Starbuck , 69 F.3d 1089, 1092 (10th Cir. 1995)(substance of habea s petitioner’s claim must be fairly presented to state courts before petitioner can raise it in federal court), cert. denied , 116 S. Ct. 1855 (1996), this court generally will not address issues raised for the first time on appeal, absent unusual circum stances, e.g. , Rademacher v. Colorado Ass’n of Soil Conservation Dists. Med. Ben efits Plan , 11 F.3d 1567, 1571-72 (10th Cir. 1993). There are no such unusua l circumstances presented here. Addressing the merits of the two grounds for relief that are properly before this court, petitioner argues that the trial court erred in preventing her from introducing into evidence prior inconsistent statem ents made by the victim’s neighbor and the trial court unconstitutionally res tricted her pro se defense by denying her access to adequate resources to prepare her defense, unfairly limiting her ability to subpoena witnesses, and requiring he r to preview her case to the court and the government outside the presence of th e jury. Upon consideration of the state court record, we perceive no constitution al error. We, therefore, affirm the district court’s denial of federal habeas relie f on these grounds for substantially the same reasons stated in the magistrate judge’s report and-5-

recommendation, dated October 2, 1995, and the district court’s order adopting that report and recommendation, dated October 23, 1 995. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Arthur L. Alarcon Circuit Judge