F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 29 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 02-6274 & 02-6388
(D.C. No. CIV-98-896-R)
RAYMOND HOWARD HICKMAN, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases
are therefore ordered submitted without oral argument.
We have consolidated these cases for purposes of disposition. In
No. 02-6274, Mr. Hickman appeals from the district court’s order denying his
*
This order and judgment is not binding precedent, except under the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.
motion to vacate, set aside or correct his sentence, brought pursuant to 28 U.S.C.
§ 2255. In No. 02-6388, he appeals from the district court’s order denying his
motion for discovery. We affirm the district court’s orders.
No. 02-6274
The underlying facts are set forth at some length in Mr. Hickman’s direct
appeal, see United States v. Ivy , 83 F.3d 1266 (10th Cir. 1996), and we will not
repeat them here. Mr. Hickman was convicted after a jury trial of three counts of
distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1); one count of
distribution of cocaine to persons under twenty-one in violation of 21 U.S.C.
§ 859; and three counts of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1). He presents two Sixth Amendment ineffective
assistance of trial counsel claims. He contends that: (1) counsel failed to raise an
adequate objection to the factual basis of the district court’s sentencing
determination that Mr. Hickman was responsible for twenty kilograms of crack
cocaine; and (2) counsel failed to obtain the suppression of false testimony by
witnesses against him concerning what the government knew about their
involvement in the conspiracy when it entered into guilty pleas with them. We
previously granted Mr. Hickman a certificate of appealability (COA) on these
issues. In reviewing the denial of a § 2255 motion, we examine the district
court’s factual findings for clear error, and its legal conclusions de novo.
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United States v. Mora , 293 F.3d 1213, 1216 (10th Cir.), cert. denied , 537 U.S.
961 (2002).
Mr. Hickman presents a variety of arguments in opposition to the finding
that he was responsible for twenty kilograms of crack cocaine. He contends that
his attorney (1) improperly failed to attack Agent Hersley’s false statements at
sentencing concerning the quantity of crack cocaine distributed; (2) should have
argued that witness Flora Ingram’s statements about the amounts that she
distributed with him were not credible, lacked corroboration, and only showed
that he was responsible for three and one-half kilograms in any event; (3) should
have used F.B.I. 302 statements from other witnesses to impeach Agent Hersley;
and (4) should have argued that he could not be held liable for the full range of
the charged conspiracy because he did not participate during the entire time frame
of its operation.
In Mr. Hickman’s direct appeal, he and other co-defendants presented
similar challenges to the calculation of drug quantities allegedly involved in the
conspiracy. Defendants Norwood and Traylor argued that the district court’s drug
quantity finding for the overall conspiracy relied on an estimate based on Agent
Hersley’s estimates and Flora Ingram’s testimony that lacked “sufficient indicia
of reliability to support its probable accuracy.” Ivy, 83 F.3d at 1289 (quotation
omitted). Mr. Hickman also argued that the district court erred in determining
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that twenty kilograms of the estimated fifty kilograms distributed during the
entire scope of the conspiracy could be personally attributed to him. Id. at 1291.
We rejected each of these arguments, finding that in light of the trial evidence,
the district court’s findings were not clearly erroneous. Id. This court also
accepted the district court’s finding, which Mr. Hickman now challenges, that
there were witnesses who testified that “twelve to fifteen individuals sold
between one and three ounces of crack cocaine per week for three years.” Id.
All but one of Mr. Hickman’s challenges are foreclosed by our prior
holdings in his direct appeal. Although Mr. Hickman attempts to re-cast the
issues in the form of ineffective assistance claims, our decision against him on
these issues in his direct appeal means that he cannot show that he was prejudiced
by his attorney’s failure to raise them at trial. We will not revisit those holdings
from the prior appeal in this § 2255 proceeding. See United States v. Prichard,
875 F.2d 789, 791 (10th Cir. 1989) (per curiam).
Mr. Hickman’s only argument not foreclosed by the decision on his direct
appeal is that his trial attorney unreasonably failed to impeach Agent Hersley’s
testimony with the witnesses’ 302 statements. Our decision on his direct appeal
was based on the evidence actually presented at sentencing. We did not have
occasion to determine whether attempts to impeach Agent Hersley using the
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302 statements would have been successful, therefore giving rise to an ineffective
assistance of trial counsel claim.
We discern no reversible error in the district court’s order denying
Mr. Hickman’s § 2255 petition, for two reasons. First, Mr. Hickman did not raise
the 302 impeachment issue as part of his § 2255 motion. He mentioned it for the
first time in his “motion for reconsideration,” after the district court had denied
his petition. R. doc. 790. The district court construed the motion for
reconsideration as a motion to alter or amend the judgment under Fed. R. Civ. P.
59(e), and denied the motion on the merits. Id. doc. 791, at 2.
Mr. Hickman did not amend his notice of appeal in this case to include an
appeal from the order denying reconsideration. Instead, he filed a separate notice
of appeal on October 17, 2002 from the denial of his motion for reconsideration.
Id. doc. 803. That appeal, however, was procedurally terminated by this court.
See United States v. Hickman, No. 02-6249 (10th Cir. Apr. 17, 2003)
(unpublished). In light of this procedural history, the arguments about Mr.
Hickman’s attorney’s failure to use the witnesses’ 302 statements are not properly
before us in this appeal. They belong to the prior, procedurally-terminated
appeal.
Second, even if we were to consider Mr. Hickman’s argument in this
appeal, he fails to show prejudice from his attorney’s failure to impeach Agent
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Hersley with the 302 statements. Mr. Hickman was re-sentenced twice, in 1996
and 1997, under the United States Sentencing Guidelines then in effect. These
guidelines provided, as they still do today, that any quantity of cocaine base equal
to or over 1.5 kilograms results in a base offense level of 38. See USSG § 2D1.1
(1995). Our review of the record persuades us that even if Mr. Hickman’s
counsel had challenged Agent Hersley’s testimony with the 302 statements, he
would have been unable to persuade the district court that Mr. Hickman was
responsible for less than 1.5 kilograms of cocaine base. Therefore, his base
offense level would have been the same in any event, and he fails to demonstrate
prejudice.
We turn to Mr. Hickman’s claim that counsel failed to obtain suppression
of false testimony. He argues that his counsel should have challenged Flora
Ingram’s testimony against him, and that of other witnesses who pled guilty, on
the basis that the government knowingly understated in their plea agreements the
amount of drugs attributable to them. Most of Mr. Hickman’s argument on this
issue is devoted to Ms. Ingram’s plea agreement, which stated that the
government was aware that she was responsible for the distribution of
approximately five to twenty grams of cocaine base. Mr. Hickman contends that
by the time Ms. Ingram signed the plea agreement, on September 28, 1993, the
government knew that she was responsible for far more than this quantity.
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He also argues that the government presented false testimony about when the plea
agreement was reached.
As we explained in Ivy, § 1B1.8(a) protects statements made by witnesses
during the course of negotiation of a plea agreement. Id. at 1283-84. Therefore,
amounts disclosed during negotiations cannot be used against a witness in
violation of her plea agreement. The record shows that although Ms. Ingram did
not sign the plea agreement until September 28, 1993, her attorney negotiated the
agreement on July 29, 1993. The issue of what the government knew, and when,
was fully explored at trial, not only through Ms. Ingram’s testimony, but also
through the testimony of Mr. Lacy, her attorney. Mr. Hickman fails to show that
better performance by his attorney would have overcome our previous
determination that at the time of the plea negotiations, any evidence the
government had concerning Ms. Ingram’s involvement with additional drug
quantities would have been insufficient to provide proof by a preponderance of
the evidence. Id. at 1284.
Mr. Hickman further argues, citing former Fed. R. Crim. P. 11(e)(5)
(2001), that the government and Ms. Ingram were required to disclose the
existence of the plea agreement when she was arraigned. The fact that she did not
do so, he argues, suggests that no such plea agreement was in existence by
September 28, 1993. Although Ms. Ingram did not formally change her plea to
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“guilty” until January 3, 1994, the record contains a copy of her plea agreement,
which was signed on September 28, 1993. Mr. Hickman gives us no good reason
to doubt the authenticity of this document, or the veracity of the trial testimony
that Ms. Ingram’s attorney reached an agreement in July 1993, which was
memorialized in the September 28, 1993 agreement. Mr. Lacy, Ms. Ingram’s
counsel, testified that he conferred with federal agents on July 29, 1993, at which
time it was agreed that Ms. Ingram would cooperate with the government and that
her “relevant conduct” would be limited to the five-to-ten gram range. Trial Tr.,
Vol. IV at 757. Although the existence of the plea agreement should perhaps
have been disclosed at the September 28, 1993 arraignment, failure of disclosure
is not sufficient evidence that negotiations had not begun or that the plea
agreement was not in existence to overcome the plain testimony at trial.
To the extent Mr. Hickman challenges his attorney’s failure to exclude the
testimony of other witnesses who entered into plea agreements with the
government, a similar analysis applies, and leads to the same result. Finally, to
the extent Mr. Hickman argues that Ms. Ingram wrongfully received “something
of value” for her testimony in the form of leniency, this argument is foreclosed by
our decision in United States v. Singleton, 165 F.3d 1297 (10th Cir. Jan. 8, 1999)
(en banc). In sum, Mr. Hickman fails to establish prejudice sufficient to make
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out a claim for violation of his Sixth Amendment right to effective assistance
of counsel.
No. 02-6388
On October 25, 2002, two months after he filed his notice of appeal from
the district court’s order denying his § 2255 motion, Mr. Hickman moved in the
district court for discovery pursuant to “Rule 6(a) Governing Habeas Corpus
Case” [sic]. R. doc. 806. He sought documents relating to Ms. Ingram’s arrests,
preliminary hearing, arraignments, and entry of guilty plea, to support his
argument that the government knew that she had distributed greater quantities
than those disclosed in the plea agreement. The district court struck his motion
as untimely.
Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts permits discovery with leave of the district judge, “in the
exercise of his discretion and for good cause shown . . . but not otherwise.”
Mr. Hickman argues that he has shown good cause for the delay in filing his
motion for discovery, because he could not have discovered the existence of the
information he seeks until October 2002. He contends that the district court
docket sheets available up until that time were missing pertinent dates relating to
Ms. Ingram’s plea agreement, pleas, etc. We note, however, that a docket sheet in
the record on appeal attached to the preliminary record in Mr. Hickman’s direct
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appeal and dated April 12, 1994, contains the very information that Mr. Hickman
claims was not available until October 2002. The district court did not abuse its
discretion in denying the motion for discovery as untimely.
The judgments of the district court are AFFIRMED. All pending motions
are denied. The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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