Bobby Eugene Lucky v. Dan Reynolds

51 F.3d 286, 1995 U.S. App. LEXIS 18333

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 31, 1995
• Docket: 94-6193
• Status: Published

Opinion

51 F.3d 286

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Bobby Eugene LUCKY, Petitioner-Appellant,
v.
Dan REYNOLDS, Respondent-Appellee.

Nos. 94-6193, 94-6194.

United States Court of Appeals, Tenth Circuit.

March 31, 1995.

ORDER AND JUDGMENT1

Before TACHA, LOGAN, and KELLY, 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Pro se petitioner Bobby Eugene Lucky appeals from two orders of the district court regarding his petitions for habeas corpus. In No. 94-6193, petitioner appeals an order of the district court finding that he was not entitled to habeas corpus relief on his claims related to the failure of the district court to hold an evidentiary hearing and on the denial of a direct appeal. In this petition, petitioner also claims that the district court erred in finding that he was not denied effective assistance of counsel. In No. 94-6194, petitioner appeals an order of the district court dismissing his petition on the grounds that appellant was not in custody for the conviction challenged and was therefore entitled to no relief from a challenge to an expired conviction. Petitioner appeals on grounds similar to those raised in No. 94-6193. He alleges various constitutional violations related to the deprivation of a direct appeal in the original sentence and to his sentencing in Oklahoma state court.

We agree with the district court that petitioner has asserted no grounds upon which he is entitled to relief on his petition for habeas corpus in No. 94-6193. The magistrate judge and the district court fully analyzed petitioner's claim based on petitioner's allegation of ineffective assistance of counsel. The magistrate's report and recommendation makes clear that petitioner has failed to show that he was actually prejudiced by counsel's representation. See United States v. Andrews, 790 F.2d 803, 815 (10th Cir.1986).

In No. 94-6194, the district court did not err in finding that petitioner was not entitled to habeas corpus relief. We GRANT in forma pauperis status, GRANT the certificate of probable cause, and AFFIRM both orders of the district court for substantially the reasons given by the district court.

The mandate shall issue forthwith.

1 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