Levi Frank Rogers, Petitioner--appellant, v. Donald A. Dorsey, Warden; Attorney General of the State Ofnew Mexico, Respondents--appellees, 53 F.3d 343 (10th Cir. 1995)

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U.S. Court of Appeals for the Tenth Circuit - 53 F.3d 343 (10th Cir. 1995) May 4, 1995

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.


OPINION AND JUDGMENT1 

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.2. 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.

Mr. Rogers, pro se, appeals the dismissal of his habeas corpus petition for abuse of the writ. District court rulings on habeas corpus petitions are reviewed for an abuse of discretion. Capps v. Sullivan, 13 F.3d 350, 352 (10th Cir. 1993); Hannon v. Maschner, 981 F.2d 1142, 1145 (10th Cir. 1992). Mr. Rogers concedes that he is trying to raise a new issue which was not raised in his first habeas corpus petition, but has attempted to provide an explanation for this oversight. Unfortunately, his explanation fails to meet the standard to show cause. Mr. Rogers has also failed in his efforts to demonstrate that refusing to entertain his petition would amount to a fundamental miscarriage of justice. Thus, we are unable to find an abuse of discretion on the part of the District Court.

The order of the District Court dismissing the petition is affirmed for substantially the reasons set forth in the "Magistrate Judge's Proposed Findings and Recommended Disposition."

AFFIRMED. The mandate shall issue forthwith.

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470