Ascencion Armendariz, Petitioner-appellant, v. Jack Cowley and Attorney General of the State of Oklahoma,respondents-appellees, 52 F.3d 337 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

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 cause is therefore ordered submitted without oral argument.

This is an appeal from an order denying a petition for writ of habeas corpus under 28 U.S.C. 2254. In his original petition Mr. Armendariz contended he was denied due process because of the delay in the processing of his appeal in the state court system. Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). The appeal was heard while the federal petition was pending, and the magistrate judge determined petitioner failed to prove he was prejudiced in any way by the delay and recommended denial of the writ. The magistrate judge also recommended denial of petitioner's motion to amend his original petition to add new grounds for the writ.

Petitioner did not object to the magistrate's finding he failed to prove prejudice arising from the appellate delay; therefore, the district court adopted the recommendation to deny the writ on that ground. The court further adopted the recommendation amendment of the petition be denied and petitioner be required to pursue his new grounds by filing a new petition.

On appeal, petitioner contests the dismissal of his petition on all grounds. Our review indicates the district court did not err, and we affirm on the grounds set forth in its dispositional order. Petitioner is free to proceed with appropriate post-conviction relief on the grounds not presented in his original petition in the district court.

AFFIRMED.