* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. 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 Mex ico) 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 t herefore 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 habeas1 We grant issuance of a certificate of probable caus e

simply to reach the merits of the case. - 2 - corpus pursuant to 28 U.S.C. § 2254. 1 On July 16, 1989, Scott was convicted in a New Mexi co state district court of second degree homicide, aggravate d assault with a deadly weapon, and false imprisonment. He was se ntenced as a habitual offender to 17 years imprisonment followedby two years probation. After exhausting his state court remedies, Scott fi led a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that: (1) the state trial court judge’s fa ilure to recuse himself suasponte because he had presided over Scott’s divorce denied him due process; (2) he was denied his SixthAmendment right to confrontation when the trial court limited his c ross-examination of his ex-wife regarding the validity of the divorc e decree; and (3) his trial counsel was ineffective for failing t o investigate potential witnesses, failing to call certain witnes ses, and failing to move to recuse the state trial judge. The matte r was assigned to Magistrate Judge Svet who held an evidentiary he aring on January 6, 1995. At the hearing, the magistrate judge heard the test imony of Scott and his trial counsel and admitted into evide nce the affidavit of state trial court Judge Robert M. Doug hty II. On July 2, 1995, the magistrate judge issued his Proposed F indings and- 3 -

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 tohave been biased; Scott’s speculation that the trial judge’s prior knowledge gained from the uncontested divorce proceeding infl uenced his rulings was not supported by any facts; Scott faile d 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; Sco tt’s ineffectiveness claims challenging his counsel’s ta ctical decisions fail, inasmuch as those decisions “were clearly rea sonable tactical choices made after considerable investigation.” On October 27, 1995, the district court adopted the Proposed Findings and Recommended Disposition of the magistr ate 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 conclusi ons in dismissing a petition for a writ of habeas corpus d enovo , 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 Recommende d Disposition of- 4 -

July 2, 1995, and the district court’s Order of Oct ober 27, 1995.

Entered for the Court:

James E. Barrett, Senior United States Circuit Judge- 5 -