Milton L. Herd, Petitioner-appellant, v. T.s. Walker, Judge; Carter County District Court, Courtclerk; First Deputy Clerk of Oklahoma Criminal Court Ofappeals; David R. Chandler, Attorney; John Douglas,oklahoma Bar Association; Jack Cowley; Attorney General Ofthe State of Oklahoma, Respondents-appellees, 986 F.2d 1427 (10th Cir. 1993)

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.

Milton L. Herd appeals an order of the United States District Court for the Western District of Oklahoma dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, the court dismissed the petition because a previous petition filed by Mr. Herd was already pending and contained identical issues. On appeal, Herd concedes that the petitions raise identical issues but contends that the district court should have consolidated the petitions, rather than dismissing the second one.

We review the dismissal of a habeas petition pursuant to rule 4 de novo. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990), cert. denied, 111 S. Ct. 986 (1991). Rule 4 provides for summary dismissal where the petition can afford no relief. Herd concedes that the instant petition, having raised no new issues, could afford him no additional relief. Because consolidation of the identical petitions would have enlarged not the scope of the petition but only the size of the caption, we AFFIRM. The mandate shall issue forthwith.