                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 6 1997
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 JOHN T. BOOZ,

          Petitioner - Appellant,

 v.                                                        No. 97-2120
                                                   (D.C. No. CIV-93-1297-M)
 JOHN SHANKS and ATTORNEY                           (District of New Mexico)
 GENERAL OF THE STATE OF NEW
 MEXICO,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, MCKAY and LUCERO, Circuit Judges.


      We have considered the record, the briefs of the parties, the district court’s

order, and the applicable law. We grant a certificate of appealability to consider

the issues raised in appellant’s brief, including specifically whether the alleged

failure of counsel to notify defendant of the adverse ruling of the Court of

Appeals of the State of New Mexico, denying him the option of electing to file an


      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 10th
Cir. R. 36.3.
application for writ of certiorari to the New Mexico Supreme Court on a pro se

basis or seek other assistance, constitutes ineffective assistance of counsel.

      For purposes of our disposition we note that it is undisputed that counsel

did not notify the defendant of such adverse ruling until after the time to file a

petition for certiorari had run. While the applicant cannot assert ineffective

assistance of counsel as to any failure on the part of his lawyer to file a petition

for certiorari to the New Mexico Supreme Court on his behalf, Wainwright v.

Torna, 455 U.S. 586, 588 (1982) (per curiam), here, where applicant was not even

notified of the adverse ruling and thus was denied the opportunity to take any

action himself, we presume prejudice and deem any procedural default to be

waived. Turning to the merits of appellant’s remaining claims of ineffective

assistance of counsel, we find no actual prejudice under Strickland v.

Washington, 466 U.S. 668 (1984). We AFFIRM for substantially the reasons

stated in the Proposed Findings and Recommended Disposition of United States

Magistrate Judge filed on January 27, 1997 and the district court’s order adopting

same. The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge



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