                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 3 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellant,

    v.                                                    No. 96-7061
                                                    (D.C. No. CV-95-284-S)
    FRANK DENNIS FELIX,                                   (E.D. Okla.)

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.



         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 case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable Robin J. Cauthron, District Judge, United States District Court
for the Western District of Oklahoma, sitting by designation.
      Defendant appeals the district court’s denial of his 28 U.S.C. § 2255

motion challenging drug trafficking convictions he suffered in the Eastern District

of Oklahoma. In denying relief, the district court held that nine of defendant’s

ten § 2255 claims were procedurally barred because he failed to raise them on

direct appeal. Defendant argues that the district court erred in ruling that he

could have previously raised his claims alleging: 1) two government witnesses

perjured themselves, one at the suppression hearing and one at trial; 2) the

government breached its agreement to support defendant’s Fed. R. Crim. P. 35(b)

motion to reduce his sentence; and 3) the government failed to disclose its theory

that defendant’s conduct was part of a single conspiracy. Defendant also

challenges the district court’s refusal to conduct an evidentiary hearing.

Determining first whether defendant’s allegations, if true, would entitle him to

relief and, if so, whether the district court then abused its discretion in refusing to

conduct a hearing, United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996), we

affirm.

      A defendant raising an issue for the first time in a § 2255 motion must

show cause for not raising the issue on direct appeal and actual prejudice

resulting from the errors alleged, or he must show that a fundamental miscarriage

of justice would result if his claim is not addressed. See United States v. Riddick,

No. 96-3165, 1997 WL 18969, at *1 n.1 (10th Cir. Jan. 21, 1997) (to be reported


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at 104 F.3d 1239) (citing United States v. Allen, 16 F.3d 377, 378 (10th Cir.

1994)) 1. Because he does not allege that he is actually innocent of the offenses

for which he was convicted, see Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851,

867 (1995), the question presented is whether defendant has made a sufficient

showing of cause and prejudice to excuse his procedural default.

      Defendant first argues that an agent of the Drug Enforcement

Administration committed perjury by denying, at the suppression hearing, that

agents fired their weapons during the raid of a methamphetamine lab near Beggs,

Oklahoma. Defendant asserts that he could not have raised this issue on direct

appeal because it is based upon newly discovered evidence that was previously

unavailable. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). The affidavits of

defendant and his coconspirators, asserting that they heard gunfire at the time of

the raid, however, cannot be considered newly discovered evidence. Id. at 498-

500. Further, defendant asserts no reason why, through the exercise of due

diligence, he could not have discovered, at the time of trial, the information now



1
       Because defendant filed his notice of appeal prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (Act), we apply pre-Act law
addressing procedural defaults. See Reid v. Oklahoma, 101 F.3d 628, 629 & n.2
(10th Cir. 1996) (28 U.S.C. § 2254 proceeding); see also Lopez, 100 F.3d at 117
(in § 2255 proceeding, where defendant filed notice of appeal prior to Act’s
enactment, this court, without discussion, applied pre-Act law addressing
procedural defaults). We would reach the same result here were we to apply the
Act’s more restrictive procedural standards. See Reid, 101 F.3d at 629 n.2.

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proffered in the affidavits of the two law enforcement officers. See id. at 498.

The district court, therefore, did not err in determining that this claim was

procedurally barred.

      Defendant next argues that the government’s informant committed perjury

during his trial testimony. In support of this claim, defendant submits the

affidavit of an inmate he met subsequent to his direct appeal, who contends that

several of the informant’s statements made at trial were false. Assuming this

evidence was unavailable at the time of defendant’s trial or direct appeal, and

was, therefore, sufficient to establish cause, defendant has, nonetheless, failed to

establish actual prejudice resulting from the alleged perjury. See United States v.

Frady, 456 U.S. 152, 168 (1982). None of the allegedly false statements were

material to the issue of his guilt or innocence and would have been merely

cumulative evidence indirectly challenging the informant’s credibility. See

United States v. Johnson, 621 F.2d 1073, 1075 (10th Cir. 1980) (new trial was not

required where alleged perjury went only peripherally, if at all, to substantive

issues and where new evidence did not directly impeach witness’s testimony on

any substantive issues).

      Defendant next argues that the government breached its agreement to

provide testimony in support of defendant’s motion to reduce his sentence. See

Fed. R. Crim. P. 35(b) (subsequently amended, but still applicable to offenses


                                          -4-
committed prior to Nov. 1, 1987). Defendant asserts that this claim is not

procedurally barred because he timely filed his Rule 35(b) motion after the

completion of his direct appeal. The government argues, for the first time on

appeal, that this claim is, nonetheless, barred because defendant failed to raise the

issue of the government’s breach in the Rule 35 proceeding. We need not address

these procedural issues, however, because defendant would not be entitled to

relief on the merits of this claim in any event. See United States v. Wright, 43

F.3d 491, 496 (10th Cir. 1994) (appellate court need not address procedural

default, in § 2255 action, where claim fails on merits); see generally United States

v Deninno, 103 F.3d 82, 85 n.2 (10th Cir. 1996) (appellate court is free to affirm

on any ground supported by record).

      The record indicates that the government did offer to provide testimony in

support of defendant’s Rule 35(b) motion, in exchange for both information

implicating one of his coconspirators and the dismissal of his direct appeal. II

Appellant’s App. at 523-24. Defendant, however, refused to dismiss his appeal.

Id. at 523. Although defendant asserts that he, nonetheless, provided information

with the expectation that the government would support his Rule 35 motion, he

fails to assert any reason why his expectation was reasonable under the

circumstances. Because the record, therefore, does not evince the existence of

any agreement between defendant and the government, this claim lacks merit.


                                         -5-
See Bischel v. United States, 32 F.3d 259, 264 (7th Cir. 1994) (“mere allegation

of an ‘understanding’ or ‘promise’ without some documentation or statement in

the court record is insufficient to merit an evidentiary hearing much less a Rule

35 hearing”).

      Finally, defendant argues that the government, in violation of Brady v.

Maryland, 373 U.S. 83 (1963), failed to disclose evidence that defendant engaged

in only one drug trafficking conspiracy. There is no indication in the record,

however, that defendant was ever charged with involvement in more than one

conspiracy.

      Because defendant has failed to establish that he might be entitled to relief

on any of these claims, as alleged, the district court did not abuse its discretion in

refusing to conduct an evidentiary hearing. Lopez, 100 F.3d at 121. The

judgment of the United States District Court for the Eastern District of Oklahoma

is, therefore, AFFIRMED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




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