Carlos Abad, Named As: Carlos J. Abad v. Frank Gunter Gale A. Norton, Attorney General of the State of Colorado

25 F.3d 1055 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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. Carlos ABAD, named as: Carlos J. Abad, Petitioner-Appellant, v. FRANK GUNTER; Gale A. Norton, Attorney General of the State of Colorado, Respondents-Appellees. No. 93-1404. United States Court of Appeals, Tenth Circuit. June 1, 1994. — 1 — Before ANDERSON and KELLY, Circuit Judges, and BELOT,** District Judge. ORDER AND JUDGMENT1 — 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. — 3 — Petitioner appeals from an order of the district court denying him relief on his petition for writ of habeas corpus filed under 28 U.S.C. 2254. We exercise jurisdiction under 28 U.S.C. 2253 and 1291, and affirm. — 4 — The parties are familiar with the facts and there is no need for the court to restate them. Petitioner argues on appeal that: (1) he was denied his Sixth Amendment right to compulsory process when the trial court refused to designate his psychiatrist as "court appointed"; and (2) he was denied his due process right to a fair trial due to prosecutorial misconduct. — 5 — Petitioner failed to raise his compulsory process argument on direct appeal and that issue is therefore procedurally barred. See Coleman v. Thompson, 501 U.S. 722, ---, 111 S.Ct. 2546, 2554-55 (1991). Petitioner's due process argument is properly raised, however. The district court, citing United States v. Young, 470 U.S. 1, 16 (1985), and Soap v. Carter, 632 F.2d 872, 876 (10th Cir.1980), cert. denied, 451 U.S. 939 (1981), determined that the prosecutor's statements about which petitioner complains were not so prejudicial as to render his trials fundamentally unfair. Dist. Ct. Order at 3-4. Whether petitioner's due process right was violated is a mixed question of law and fact. Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir.1992). We presume any underlying findings of fact made by the district court are correct, but we review the district court's legal conclusions de novo. Id. — 6 — We have carefully reviewed the briefs and the record on appeal. We find no error and affirm the district court's decision for substantially the same reasons as set forth in its order filed September 10, 1993. — 7 — The judgment of the United States District Court for the District of Colorado is AFFIRMED. Footnotes [-s-s] ** Honorable Monti L. Belot, District Judge, United States District Court for the District of Kansas, sitting by designation [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