* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-40119

Summary Calendar

_____________________

STEVEN RITCHEY,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:94-CV-405)

_________________________________________________________________

July 10, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Steven Ritchey, # 541162, contests the dismissal of his habeas

petition. (His motion for appointment of counsel is DENIED.) 

Ritchey contends that counsel mistakenly promised him that he

would serve only 16 months in prison if he pleaded nolo contendere;

that counsel was ineffective for giving erroneous advice regarding

the amount of time he would serve; that counsel and the State
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withheld exculpatory evidence; and that counsel was ineffective

regarding revocation of his probation. Based upon our review of

the record, we find no reversible error. 

Regarding Ritchey’s contentions that counsel gave erroneous

advice about the amount of time he would serve and withheld

exculpatory evidence, we affirm for essentially the reasons relied

on by the district court. See Ritchey v. Scott, No. 6:94-CV-405

(E.D. Tex. Jan. 8, 1996). Ritchey’s contention that the State

withheld exculpatory evidence is foreclosed by his allegation that

counsel knew of the exculpatory evidence in the State’s possession.

Ritchey’s contention that he was denied access to the courts,

because the state court failed to produce a complete record of the

evidence for our review, is without merit; all of the documents

upon which Ritchey relies for his claim of innocence are included

in the record on appeal. 

Regarding Ritchey’s contention that counsel promised that he

would serve only 16 months, which was raised for the first time in

his objections to the magistrate judge’s report and recommendation,

and his contention based on evidence provided by Dr. Di Maio,

raised in an amendment filed without leave of court after the

respondent had filed a responsive pleading, the district court did

not abuse its discretion by implicitly denying Ritchey’s motion to

amend his petition. See FED. R. CIV. P. 15(a); United States v.

Armstrong, 951 F.2d 626, 630 (5th Cir. 1992) (where responsive
- 3 -

pleading had been filed, and plaintiff neither sought nor obtained

leave of court, plaintiff had no right to amend pleadings by

raising claim for first time in objection to magistrate judge’s

report and recommendation). Moreover, because Ritchey has not

exhausted state law remedies as to these claims, allowing Ritchey

to amend would have required dismissal of his entire petition for

failure to exhaust. See Rose v. Lundy, 455 U.S. 509, 519-20

(1982). Regarding any evidence of alleged misconduct by serologist

Fred Zain, Ritchey does not indicate that any such evidence existed

when he entered his plea; he has not shown how any such evidence

could have implicated the voluntariness of his plea. See Smith v.

Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S.

906 (1984).

Ritchey’s contention that the magistrate judge erred by

finding that his probation was revoked before he pleaded nolo

contendere lacks support in the record. Ritchey has failed to

brief his contention that counsel was ineffective in conjunction

with the revocation of probation. See Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

AFFIRMED