David H. Johns, Petitioner-appellant, v. Michael Cody, Warden; and Attorney General of the State Ofoklahoma, Respondents-appellees, 69 F.3d 548 (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.

David H. Johns appeals from an order dismissing his 2254 petition as an abuse of the writ. Mr. Johns contended two state judges should have disqualified themselves from hearing his sixth state post-conviction proceeding because they had been law partners and one judge had represented Mr. Johns' codefendant. The magistrate judge recommended dismissal of the petition because in prior 2254 petitions Mr. Johns had failed to raise the issue. The district court adopted the recommendation and dismissed. This appeal followed.

Examination of the record supports the district court's judgment. Although Mr. Johns argues he has met the cause prong of McCleskey v. Zant, 499 U.S. 467 (1991), because he has only lately learned of the connection between one of the judges and his codefendant, it is clear he has not met the prejudice test. Assuming the truth of his claim, it is clear that the failure of the judges to recuse themselves did not result in the conviction of an innocent person. Id. at 502.

The motion for a certificate of probable cause is GRANTED, and the judgment of the district court is AFFIRMED.