Rickey D. Brown v. R. Michael Cody, Attorney General of the State of Oklahoma

46 F.3d 1150, 1995 U.S. App. LEXIS 6921, 1995 WL 13108

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 5, 1995
• Docket: 94-6293
• Status: Published

Opinion

46 F.3d 1150

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral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

Rickey D. BROWN, Petitioner-Appellant,
v.
R. Michael CODY, Attorney General of the State of Oklahoma,
Respondents-Appellees.

No. 94-6293.

United States Court of Appeals, Tenth Circuit.

Jan. 5, 1995.

Before MOORE, BARRETT and EBEL, Circuit Judges.

ORDER AND JUDGMENT1

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Rickey D. Brown (Brown), appearing pro se, applies for a certificate of probable cause under 28 U.S.C. 2253 to appeal from the district court's order denying his 28 U.S.C. 2254 petition for a writ of habeas corpus. In order to reach the merits, we grant Brown's Application for a Certificate of Probable Cause.

Brown is incarcerated in the Lexington Correctional Center, State of Oklahoma, as a result of his conviction following a plea of guilty in Logan County District Court to four counts of Robbery With a Firearm After Former Conviction of Felonies. He was sentenced on June 11, 1990, to forty-five (45) years imprisonment on each count to run concurrently.

Brown exhausted his available state remedies before filing a petition for a writ of habeas corpus in the United States District Court for the District of Oklahoma, on February 25, 1994. The matter was referred to a magistrate judge who issued her Report and Recommendation on June 20, 1994. Brown filed his objections to the Report and Recommendation on July 8, 1994. The district court adopted the Report and Recommendation and dismissed Brown's petition on July 27, 1994. This appeal followed.

On appeal, Brown contends that the district court erred in denying his petition inasmuch as he was denied effective assistance of counsel at trial because his counsel failed (a) to examine his mental competence, (b) to assert a claim of double jeopardy, and (c) to visit Brown during the ten days following his guilty plea. He also contends that the Court erred in not appointing counsel for his appeal.

We have examined the entire record and the briefs on appeal. We affirm for substantially the reasons set forth in the magistrate judge's Report and Recommendation of June 30, 1994.

AFFIRMED.

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