UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40119
Summary Calendar
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STEVEN RITCHEY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CV-405)
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July 10, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Steven Ritchey, # 541162, contests the dismissal of his habeas
petition. (His motion for appointment of counsel is DENIED.)
Ritchey contends that counsel mistakenly promised him that he
would serve only 16 months in prison if he pleaded nolo contendere;
that counsel was ineffective for giving erroneous advice regarding
the amount of time he would serve; that counsel and the State
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
withheld exculpatory evidence; and that counsel was ineffective
regarding revocation of his probation. Based upon our review of
the record, we find no reversible error.
Regarding Ritchey’s contentions that counsel gave erroneous
advice about the amount of time he would serve and withheld
exculpatory evidence, we affirm for essentially the reasons relied
on by the district court. See Ritchey v. Scott, No. 6:94-CV-405
(E.D. Tex. Jan. 8, 1996). Ritchey’s contention that the State
withheld exculpatory evidence is foreclosed by his allegation that
counsel knew of the exculpatory evidence in the State’s possession.
Ritchey’s contention that he was denied access to the courts,
because the state court failed to produce a complete record of the
evidence for our review, is without merit; all of the documents
upon which Ritchey relies for his claim of innocence are included
in the record on appeal.
Regarding Ritchey’s contention that counsel promised that he
would serve only 16 months, which was raised for the first time in
his objections to the magistrate judge’s report and recommendation,
and his contention based on evidence provided by Dr. Di Maio,
raised in an amendment filed without leave of court after the
respondent had filed a responsive pleading, the district court did
not abuse its discretion by implicitly denying Ritchey’s motion to
amend his petition. See FED. R. CIV. P. 15(a); United States v.
Armstrong, 951 F.2d 626, 630 (5th Cir. 1992) (where responsive
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pleading had been filed, and plaintiff neither sought nor obtained
leave of court, plaintiff had no right to amend pleadings by
raising claim for first time in objection to magistrate judge’s
report and recommendation). Moreover, because Ritchey has not
exhausted state law remedies as to these claims, allowing Ritchey
to amend would have required dismissal of his entire petition for
failure to exhaust. See Rose v. Lundy, 455 U.S. 509, 519-20
(1982). Regarding any evidence of alleged misconduct by serologist
Fred Zain, Ritchey does not indicate that any such evidence existed
when he entered his plea; he has not shown how any such evidence
could have implicated the voluntariness of his plea. See Smith v.
Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S.
906 (1984).
Ritchey’s contention that the magistrate judge erred by
finding that his probation was revoked before he pleaded nolo
contendere lacks support in the record. Ritchey has failed to
brief his contention that counsel was ineffective in conjunction
with the revocation of probation. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED
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