*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/12/96

FOR THE TENTH CIRCUIT

______

ROBERT EARL SCOTT, )

)

Petitioner-Appellant, )

)

v. ) No. 95-2245

) (D.C. No. CIV-92-119)

ROBERT J. TANSY, Warden; ATTORNEY ) (Dist. of New Mexico)

GENERAL FOR THE STATE OF NEW )

MEXICO, )

)

Respondents-Appellees. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Robert Earl Scott (Scott) appeals from the district court’s

Order dismissing with prejudice his petition for a writ of habeas
1 We grant issuance of a certificate of probable cause

simply to reach the merits of the case.

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corpus pursuant to 28 U.S.C. § 2254.1

On July 16, 1989, Scott was convicted in a New Mexico state

district court of second degree homicide, aggravated assault with

a deadly weapon, and false imprisonment. He was sentenced as a

habitual offender to 17 years imprisonment followed by two years

probation. 

After exhausting his state court remedies, Scott filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

alleging that: (1) the state trial court judge’s failure to recuse

himself sua sponte because he had presided over Scott’s divorce

denied him due process; (2) he was denied his Sixth Amendment right

to confrontation when the trial court limited his cross-examination

of his ex-wife regarding the validity of the divorce decree; and

(3) his trial counsel was ineffective for failing to investigate

potential witnesses, failing to call certain witnesses, and failing

to move to recuse the state trial judge. The matter was assigned

to Magistrate Judge Svet who held an evidentiary hearing on January

6, 1995. 

At the hearing, the magistrate judge heard the testimony of

Scott and his trial counsel and admitted into evidence the

affidavit of state trial court Judge Robert M. Doughty II. On July

2, 1995, the magistrate judge issued his Proposed Findings and
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Recommended Disposition, recommending that Scott’s petition be

denied. The magistrate judge concluded that: Scott failed to show

that the state trial judge was biased or appears to have been

biased; Scott’s speculation that the trial judge’s prior knowledge

gained from the uncontested divorce proceeding influenced his

rulings was not supported by any facts; Scott failed to demonstrate

that his ability to inquire into the circumstances of his domestic

relations case or to cross-examine his ex-wife was limited, let

alone that any such limitation was prejudicial; Scott’s

ineffectiveness claims challenging his counsel’s tactical decisions

fail, inasmuch as those decisions “were clearly reasonable tactical

choices made after considerable investigation.”

On October 27, 1995, the district court adopted the Proposed

Findings and Recommended Disposition of the magistrate judge and

dismissed Scott’s petition with prejudice.

On appeal, Scott reiterates his claims made to the district

court. We review a district court’s legal conclusions in

dismissing a petition for a writ of habeas corpus de novo,

Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993), although

findings of fact underlying mixed questions of law and fact are

accorded the presumption of correctness. Manlove v. Tansy, 981

F.2d 473, 476 (10th Cir. 1992).

We AFFIRM substantially for the reasons set forth in the

magistrate judge’s Proposed Findings and Recommended Disposition of
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July 2, 1995, and the district court’s Order of October 27, 1995.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge
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