Hamby

MEMORANDUM *

Defendant-Appellant Scott D. Hamby appeals from the district court’s denial of his petition for a writ of habeas corpus. Hamby contends that the district court erred in concluding that there was sufficient evidence to support his first degree murder conviction and the attendant special circumstance finding because the prosecution did not prove the element of implied malice. He also seeks an evidentiary hearing to decide issues of fact underlying the finding of implied malice. Finally, in his supplemental reply brief, Hamby withdraws his previous agreement with the facts set forth by the district court and requests an evidentiary hearing to present new evidence of his innocence and to raise six arguments that are outside the scope of the certificate of appealability. We affirm the judgment of the district court and deny Hamby’s request for an evidentiary hearing on the newly raised issues.

A. The Scope of the Panel’s Review

The claims that appear in Hamby’s supplemental reply brief are not properly before this court. Hamby raises them for the first time on appeal and failed to exhaust them in state court. See Slaven v. American Trading Transp. Co., 146 F.3d 1066 ,…