Anthony ANDREWS, Appellant, v. John D. ASHCROFT, United States Attorney General, et al., Appellees, 123 F. App'x 408

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34Q). It is ORDERED AND ADJUDGED that the district court’s order filed June 29, 2004, be affirmed as modified below. Appellees had no duty to intervene in appellant’s post-conviction proceeding, given the discretionary nature of their investigatory and prosecutorial duties. See, e.g., United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Community for Creative Non-Violence v.

Pierce, 786 F.2d 1199, 1201 (D.C.Cir.1986). We therefore affirm the dismissal for failure to state a claim, but modify the district court’s order to reflect a dismissal with prejudice. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.