UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A.
Shumaker
Clerk Chief Deputy Clerk
December 20, 1996
TO: All recipients of the captioned order and judgment
RE: 96-1138, U.S. v. Fykes
December 5, 1996
Please be advised of the following correction to the captioned decision:
The order and judgment is changed by deleting footnote one on page two.
The reference to a denial of the certificate of appealability on the last page is also
deleted, and the district court is affirmed on the merits.
The corrected version of the order and judgment is attached.
Very truly yours,
Patrick Fisher, Clerk
Susie Tidwell
Deputy Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1138
(D.C. No. 95-M-3001)
MICHAEL FYKES, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and HENRY, Circuit Judges. **
Defendant-Appellant Michael Fykes appeals the district court’s dismissal of
his petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §
2255. The district court dismissed the petition as an abuse of the writ. For the
following reasons, we now affirm the district court’s order dismissing Fykes’s
petition as an abuse of the writ.
* This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
** After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in 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.
Fykes was convicted of conspiracy to distribute cocaine on December 4,
1992, and sentenced to 100 months in prison followed by five years of supervised
release. On direct appeal, Fykes argued that his criminal history had been
erroneously calculated as category IV due to the erroneous inclusion of a careless
driving offense in that calculation. We affirmed the sentence imposed by the
district court, concluding that even without the point charged for the careless
driving offense Fykes’s criminal history placed him in category IV. United States
v. Fykes, 19 F.3d 34 (Table), 1994 WL 97050 (10th Cir. Mar. 28, 1994) [Fykes I].
However, we noted that “if the alleged error should affect Mr. Fykes criminal
history category in the future, he may reargue the issue at that time.” Id.
Subsequently, Fykes brought a habeas petition in which he claimed that his
trial counsel had provided ineffective assistance by failing to ensure that two
witnesses would be able to testify at trial. United States v. Fykes, 53 F.3d 343
(Table), 1995 WL 265930 (10th Cir. May 8, 1995) [Fykes II]. On appeal, we
affirmed the district court’s denial of that petition, finding that the testimony of
the two witnesses would not have altered the outcome of the trial. Id. at *2-*3.
On June 22, 1995, Fykes brought a second habeas petition under 28 U.S.C. § 2255
which again challenged the district court’s assessment of his criminal history. (I
R.O.A. Tab 2). Fykes did not appeal the district court’s June 23, 1995 order
dismissing that petition as an abuse of the writ. Id.
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This is Fykes’s third effort to win relief under 28 U.S.C. § 2255. 1 Fykes
makes two arguments in the current petition. First, Fykes argues that a review of
his criminal history calculation has revealed another error by the trial court, in
which a marijuana possession conviction for which Fykes paid a $258 fine was
not treated as an exempt non-felony offense under U.S.S.G. § 4A1.2.(c)(1).
Second, Fykes agues that his appellate counsel provided ineffective assistance by
failing to argue that the marijuana conviction should not have been included in
the criminal history calculation. Fykes contends that we invited him to bring this
petition by stating in our opinion on direct appeal that “if the alleged error should
affect Mr. Fykes criminal history category in the future, he may reargue the issue
at that time.” Fykes I, 1994 WL 97050.
Fykes has misconstrued both the statement in our earlier opinion and the
applicable doctrine of abuse of the writ. When we stated that Fykes was free to
relitigate whether his careless driving conviction should be counted in his
criminal history “in the future,” we meant only that should Fykes be convicted of
another offense our prior decision would not collaterally estop him from making
1
Fykes filed his petition on December 5, 1995, and thus this case is not
affected by the successive petition provisions of AEDPA, 28 U.S.C. § 2244(b), which
was signed into law on April 24, 1996. Compare Hatch v. Oklahoma, 92 F.3d 1012, 1014
(10th Cir. 1996) (holding successive petition provisions applicable where application to
file successive petition was filed after effective date of AEDPA); see also Bradshaw v.
Story, 86 F.3d. 164, 166 (10th Cir. 1996) (“A statute is effective upon the date of its
enactment unless an express provision states otherwise.” (quotation omitted)).
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that argument at that time. We did not suggest that Fykes should continue to
litigate this issue in connection with his present sentence.
Moreover, the present petition is a patent abuse of the writ. Fykes
challenged his sentence on direct appeal, and has had ample opportunity to
challenge both his sentence and the effectiveness of his trial and appellate counsel
during his two previous habeas petitions. In fact, his direct appeal dealt
specifically with sentencing issues, and his first habeas petition was based on an
ineffective assistance claim. Accordingly, the district court properly found an
abuse of the writ in Fykes’s present attempt to raise those claims in a third habeas
petition. Cf. Rules Governing § 2254 Cases in the United States District Courts
9(b) (stating that finding of abuse of the writ may be found if petition does not
allege new or different grounds for relief, or if new and different grounds for
relief could have been raised in a previous petition). Further, Fykes has provided
no explanation for his failure to include any of the novel issues raised by the
present petition in his previous petition. Thus, we have no reason to find an
exception to the abuse of the writ doctrine here. United States v. Richards, 5 F.3d
1369 (10th Cir. 1993) (holding that defendant must show “cause and prejudice”
before exception to abuse of the writ will be found).
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Accordingly, we AFFIRM the district court’s order dismissing Fykes’s
petition.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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