F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
APR 9 1999
Petitioner - Appellant, No. 98-2345
v. D. New Mexico
PENNY LUCERO, Warden, New (D.C. No. CIV-98-11-LH/DJS)
Mexico Women's Correctional
Facility; ATTORNEY GENERAL
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the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.
Bernadette Setser seeks a certificate of appealability to challenge the
district court's denial of her 28 U.S.C. § 2254 petition. Because Setser has not
made a substantial showing of the denial of a constitutional right, see
28 U.S.C. § 2253(c)(2), we deny a certificate and dismiss this appeal.
Setser raised three claims in her petition: (1) that her confessions should
have been suppressed at trial; (2) that tardy disclosure of a witness statement
denied her confrontation rights and constituted prosecutorial misconduct; and
(3) that she was denied a right of allocution. The magistrate judge conducted a
searching analysis of each claim and determined that each lacked merit, and the
district court adopted the magistrate judge's Proposed Findings and
Recommended Disposition in toto, after a de novo review. We have undertaken a
thorough review of the magistrate judge's Proposed Findings and Recommended
Disposition and of the authorities cited therein. We have also carefully examined
each of the authorities cited by Setser in her Application for Certificate of
Appealability. We are satisfied that the magistrate judge's conclusions are
We note that in her objections to the magistrate judge's Proposed Findings
and Recommended Disposition, Setser raised (or at least alluded to) arguments
that were not raised in her petition and which the district court did not address.
"Issues raised for the first time in objections to the magistrate judge's
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recommendation are deemed waived." Marshall v. Chater , 75 F.3d 1421
(10th Cir. 1996).
Accordingly, we DENY a certificate of appealability and DISMISS this
ENTERED FOR THE COURT
Stephen H. Anderson
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