103 F.3d 144
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
Lee Allen AASE, Petitioner-Appellant,v.Scott CARVER, Warden, Utah State Prison, Respondent-Appellee.
No. 96-4054.(D.C.No. 92-CV-1059-W)
United States Court of Appeals, Tenth Circuit.
Dec. 13, 1996.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.


1
ORDER AND JUDGMENT*


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 cause is therefore ordered submitted without oral argument.


3
Lee Allen Aase filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 contending that his right to a fair and impartial trial was denied due to excessive and prejudicial pre-trial publicity.  The matter was referred to a magistrate judge and counsel was appointed for petitioner.  After conducting an evidentiary hearing at which five of the eight jurors from Mr. Aase's state criminal trial testified, the magistrate judge issued a report recommending that the petition be denied on the grounds that Mr. Aase failed to establish the requisite prejudice.  The district court conducted a de novo review and affirmed the Report and Recommendation of the magistrate judge.


4
We have reviewed the record and Mr. Aase's arguments on appeal.  We are not persuaded that the district court erred either in its analysis or its conclusions.  We therefore AFFIRM the district court for the reasons set out in its Memorandum Decision and Order dated February 9, 1996.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Cir.  R. 36.3


