* This order and judgment is not binding precedent, e xcept under the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

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

### APR 10 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

LESTER L. NEWTON,

Petitioner-Appellant,

v. JOSEPH PAOLINO, Warden of Centennial Correction Facility; KENNETH SALAZAR, Attorney General of the State of Colorado,

Respondents-Appellees. No. 00-1301 (D.C. No. 00-D-255) (D. Colo.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Lester L. Newton, a Colorado state priso ner convicted by a jury of various counts of burglary, kidnaping of a sexua l assault victim, aggravated robbery, and assault, seeks a certificate of appeal ability (COA) to challenge the district court’s order denying his petition for a w rit of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA issued). We deny issuance of a COA and dismiss the appeal. The following is a summary of the underlying facts as stated in the decision of the Colorado Court of Appeals disposing of Newto n’s direct appeal:

[Newton] and three other armed men forced entry int o the home occupied by the man and woman victims. Over the next several hours, they bound, beat, and terrorized the victims, while ransacking the house in search of money they believ ed to be present. The woman victim was taken to another bedroom where one of the men groped her genitalia and sodomized her with the barrel of his gun. . . . The robbers left after taking cash, jew elry and other items. Appellant’s App. vol. A, at 112. On appeal, petitioner argues he is entitled to habe as relief on the following grounds: (1) during jury selection, the prosecutio n excused a prospective juror on the basis of race, in violation of Batson v. Kentucky , 476 U.S. 79 (1986); (2) the prosecution willfully withheld exculpatory evidence from the defense, in violation of Brady v. Maryland , 373 U.S. 83 (1963); (3) the trial court improperl y allowed a police detective to testify that Newton was guilty and the victims were credible;-3-

and (4) the trial court’s overt hostility to Newtonand his attorney deprived him of a fair trial. This case is governed by the Antiterrorism and Effe ctive Death Penalty Act (AEDPA). Before a COA will issue, petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C . § 2253(c)(2). To do so, he must demonstrate “that reasonable jurists could deb ate 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 encourage ment to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). The district court held that petitioner had not exh austed his claims relating to the police detective’s testimony and the trial c ourt’s hostility because he had not provided the state courts with a fair opportuni ty to apply controlling federal legal principles. As the district court correctly stated, these claims are procedurally barred unless petitioner shows cause and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson , 501 U.S. 722, 750 (1991). In his reply brief, for the first time petitioner made an argument that he had exhausted these claims. We do not consider claims presented for the first time on appeal, Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992), and we generally do not consider claims presented for the first time in a reply brief,-4-

Codner v. United States , 17 F.3d 1331, 1332 n.2 (10th Cir. 1994). Accordi ngly, we decline to consider petitioner’s exhaustion argu ments. We have carefully reviewed the briefs and the appen dix. For substantially the same reasons underlying the district court’s June 29, 2000 order of dismissal, we conclude that petitioner “has failed to raise is sues that are debatable among jurists, or that a court could resolve the issues d ifferently, or that the questions deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th Cir. 1997). The application for issuance of a COA is denied. Appeal DISMISSED.

Entered for the Court

Mary Beck Briscoe Circuit Judge