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    Mario Diaz v. Steve Hargett, 9 F.3d 116, 10th Cir. (1993)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Mario Diaz, an Oklahoma state prisoner convicted of first degree murder. The district court had dismissed Diaz's second federal habeas petition, finding an abuse of the writ because he raised new claims that could have been brought in his first petition. The appellate court affirms the dismissal, agreeing with the magistrate judge's report that Diaz failed to show cause or prejudice to excuse the abuse of the writ. The court grants Diaz a certificate of probable cause to appeal important federal issues in his case.

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    Mario Diaz v. Steve Hargett, 9 F.3d 116, 10th Cir. (1993)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Mario Diaz, an Oklahoma state prisoner convicted of first degree murder. The district court had dismissed Diaz's second federal habeas petition, finding an abuse of the writ because he raised new claims that could have been brought in his first petition. The appellate court affirms the dismissal, agreeing with the magistrate judge's report that Diaz failed to show cause or prejudice to excuse the abuse of the writ. The court grants Diaz a certificate of probable cause to appeal important federal issues in his case.

    Original Description:

    Filed: 1993-11-03 Precedential Status: Precedential Citations: 9 F.3d 116 Docket: 93-6161

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Mario Diaz, an Oklahoma state prisoner convicted of first degree murder. The district court had dismissed Diaz's second federal habeas petition, finding an abuse of the writ because he raised new claims that could have been brought in his first petition. The appellate court affirms the dismissal, agreeing with the magistrate judge's report that Diaz failed to show cause or prejudice to excuse the abuse of the writ. The court grants Diaz a certificate of probable cause to appeal important federal issues in his case.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    19 views2 pages

    Mario Diaz v. Steve Hargett, 9 F.3d 116, 10th Cir. (1993)

    Uploaded by

    Scribd Government Docs
    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Mario Diaz, an Oklahoma state prisoner convicted of first degree murder. The district court had dismissed Diaz's second federal habeas petition, finding an abuse of the writ because he raised new claims that could have been brought in his first petition. The appellate court affirms the dismissal, agreeing with the magistrate judge's report that Diaz failed to show cause or prejudice to excuse the abuse of the writ. The court grants Diaz a certificate of probable cause to appeal important federal issues in his case.

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    of 2

    9 F.

    3d 116
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Mario DIAZ, Petitioner-Appellant,


    v.
    Steve HARGETT, Respondent-Appellee
    No. 93-6161.

    United States Court of Appeals, Tenth Circuit.


    Nov. 3, 1993.

    Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.

    ORDER AND JUDGMENT1


    1

    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.

    Petitioner Mario Diaz, an Oklahoma state prisoner proceeding pro se, appeals
    from the district court's order of April 23, 1993, dismissing his petition for a
    writ of habeas corpus brought pursuant to 28 U.S.C. 2254 (1988).2 We affirm
    the district court's dismissal of Mr. Diaz's petition.

    Mario Diaz was convicted in Oklahoma state court of first degree murder
    during the commission of robbery with a dangerous weapon and was sentenced
    to life imprisonment. The Oklahoma Court of Criminal Appeals affirmed his
    conviction and life sentence on direct appeal. See Diaz v. State, 728 P.2d 503
    (Okl.Crim.App.1986). This is Mr. Diaz's second habeas petition in federal court
    challenging his state conviction. His first petition, which raised thirteen

    grounds for relief, was denied in Diaz v. Miller, CIV-87-2215-A, and was not
    appealed.
    4

    In his second habeas petition, Mr. Diaz raises six grounds for relief asserting
    that (1) he was not advised of his privilege against self-incrimination, (2) the
    co-defendant who testified against him was improperly coached and thereby
    gave tainted and perjured testimony at trial, (3) the prosecutor withheld
    evidence that the co-defendant was hearing impaired and mentally slow, (4) the
    prosecutor did not disclose that the co-defendant's plea agreement included a
    stipulation that he would be recommended for parole in fifteen months if he
    testified against petitioner, (5) petitioner was denied effective assistance of
    counsel at trial and on appeal, and (6) the Oklahoma Post-Conviction
    Procedure Act was inadequate to protect petitioner's rights.

    The magistrate judge issued a Report and Recommendation recommending


    dismissal of the petition due to Mr. Diaz's assertion of new grounds for relief
    that either were or could have been raised in his first habeas petition but were
    not, thus constituting an abuse of the writ. Furthermore, applying McCleskey v.
    Zant, 111 S.Ct. 1454 (1991), the magistrate judge determined that there was no
    cause or prejudice excusing Mr. Diaz's abuse of the writ. The district court
    adopted the Report and Recommendation and ordered the dismissal of the
    petition.

    We have extensively reviewed the record in this case, as well as Mr. Diaz's
    arguments and authorities. The magistrate judge's Report and Recommendation
    deals adequately and thoroughly with the issues presented. Accordingly, for the
    reasons outlined in the magistrate judge's Report and Recommendation, we
    AFFIRM the district court's order dismissing Mr. Diaz's writ of habeas corpus.

    The mandate shall issue forthwith.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.
    R. 36.3

    Because Mr. Diaz has raised important federal issues that are debatable among
    jurists, we grant Mr. Diaz's request for a certificate of probable cause. Barefoot
    v. Estelle, 463 U.S. 880, 893 n.4 (1983)

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