47 F.3d 1178
Richard Ralph MARTINEZ, Petitioner-Appellant,
John SHANKS, Warden; Attorney General for the State of New
(D.C. No. CIV 92-1048-JP)
United States Court of Appeals, Tenth Circuit.
Feb. 24, 1995.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Petitioner Richard Ralph Martinez filed the instant seventh petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, seeking review of a state judgment of conviction for first degree depraved mind murder. The instant petition asserts claims of ineffective assistance of trial counsel with respect to jury selection, and of appellate counsel regarding abandonment of certain issues advanced by Petitioner.
The district court referred the matter to the magistrate judge who recommended dismissal of the petition with prejudice because Petitioner failed to establish cause for failing to raise his current claims in a prior petition. After de novo review, the district court adopted the proposed findings and recommended disposition of the magistrate judge, and dismissed the petition with prejudice as an abuse of the writ pursuant to 2254, Rule 9(b).
On appeal, Petitioner contends the district court erred in dismissing the petition for abuse of the writ.3 We have reviewed the briefs of the parties, the magistrate judge's proposed findings and recommended disposition, the district court's order, and the entire record before us. Based upon our review of the record, we find no reversible error and AFFIRM the district court's dismissal of Petitioner's 2254 petition.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
Both parties waived oral argument. The case is therefore ordered submitted without oral argument
Petitioner's counsel filed an Anders brief contending that his conscientious review of the record and legal research led him to conclude that this appeal was wholly frivolous. Thus, Petitioner's counsel requests leave of this court to withdraw from representation of Petitioner. See Anders v. California, 386 U.S. 738, 744 (1967). Nonetheless, we must examine the record to determine if the appeal is in fact frivolous. See id. After our review of the record, we commend Petitioner's counsel for his forthrightness. Accordingly, we grant counsel's request to withdraw from representation of Petitioner, and relieve him of any further responsibility of representation in this matter