                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            SEP 2 1997
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-1333
                                                      (D.C. No. 96-Z-542)
    WILLIAM A. KILPATRICK,                                 (D. Colo.)

                Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, LOGAN, and EBEL, Circuit Judges.




         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.

         Defendant William A. Kilpatrick appeals the district court’s denial of his

28 U.S.C. § 2255 motion seeking relief from his convictions for conspiracy, mail


*
      This order and judgment is not binding precedent, except under the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.
fraud, wire fraud, and obstruction of justice, all stemming from a penny stock

manipulation scheme involving defendant’s company, United Financial

Operations, Inc. (UFO). On appeal, defendant argues that the district court erred

in denying his claims alleging the ineffectiveness of his trial counsel without an

evidentiary hearing. 1 See generally United States v. Galloway, 56 F.3d 1239,

1242 (10th Cir. 1995) (ineffective assistance claims should be asserted in § 2255

motion).

      The district court need not conduct an evidentiary hearing if “the [§ 2255]

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255. Thus, we first determine whether

defendant’s allegations, if proven, would entitle him to relief and, if so, whether

the district court abused its discretion in denying an evidentiary hearing. See

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

      Defendant is entitled to § 2255 relief on his ineffective assistance claims

only if he can establish both that his trial attorney’s representation was deficient

and that the deficiency prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). We review ineffective assistance claims de novo. See


1
       The Supreme Court recently held in Lindh v. Murphy, 117 S. Ct. 2059,
2068 (1997), that the new provisions of chapter 153 of the Antiterrorism and
Effective Death Penalty Act (Act) generally do not apply to cases such as this one
filed prior to the Act’s effective date. Defendant, therefore, does not need to
obtain a certificate of appealability to pursue this appeal.

                                         -2-
United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). Because we conclude

that defendant has failed to allege any claim which, if proven, would entitle him

to § 2255 relief, we affirm the district court’s decision.

      On appeal, defendant asserts that his trial counsel was constitutionally

ineffective in failing to (1) prepare defendant to testify; (2) object to the

prosecutor’s improper cross-examination of defendant; (3) object to hearsay

testimony relating to a conspiracy other than the one charged in this case;

(4) request a pretrial hearing on the expected testimony of defendant’s

co-conspirators in order to familiarize himself with the prosecution’s case and to

prepare for cross-examination of those witnesses; and (5) elicit exculpatory

testimony from two prosecution witnesses, Steve Oliver and Makund Gangwal.

Liberally construing defendant’s pro se § 2255 motion, see Haines v. Kerner, 404

U.S. 519, 520 (1972), we do not address his second and fourth appellate

arguments because he failed to raise those issues in the district court, and they do

not present any manifest error. See Sac & Fox Nation v. Hanson, 47 F.3d 1061,

1063 (10th Cir.) (absent manifest error, this court will not review issue raised for

first time on appeal), cert. denied, 116 S. Ct. 57 (1995); see also United States v.

Dixon, 1 F.3d 1080, 1082 n.2 (10th Cir. 1993) (§ 2255 motion).

      On defendant’s first argument, our review of the trial record satisfies us

that trial counsel’s preparation and presentation of defendant’s testimony did not


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fall below an objective standard of reasonableness. See Strickland, 466 U.S. at

688; see also Andrews v. Deland, 943 F.2d 1162, 1193-94 (10th Cir. 1991).

      With respect to defendant’s third argument, he has failed to allege with

sufficient specificity the hearsay testimony, relating to another alleged stock

manipulation conspiracy between defendant and the same people involved in this

UFO scheme, see Fed. R. Evid. 404(b), to which defense counsel should have

objected. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995)

(allegations of counsel’s ineffective assistance must be specific and

particularized; conclusory allegations will not warrant hearing), cert. denied, 116

S. Ct. 1881 (1996). In any event, the record includes sufficient evidence

establishing the existence of that similar conspiracy to support the admissibility of

co-conspirators’ statements under Fed. R. Evid. 801(d)(2)(E). See United States

v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997) (although there is strong

preference for trial court to determine admissibility of alleged co-conspirator

statements in hearing outside presence of jury, there may be cases where evidence

establishing admissibility under Rule 801(d)(2)(E) is without doubt,

unimpeachable and uncontroverted so that no credibility or factual determination

is required).

      Our response to defendant’s final argument is that he has failed to allege

any prejudice suffered from counsel’s purportedly deficient cross-examination of


                                         -4-
Steve Oliver. See Strickland, 466 U.S. at 697 (court need not determine whether

counsel’s performance was deficient before examining whether defendant was

prejudiced by alleged deficiencies). Defendant asserts that defense counsel

should have elicited testimony from Oliver explaining that the audit he performed

was for UFO’s fiscal year 1987, which ended on July 31 of that year, and that

UFO’s financial condition had improved by December 1987. Defense counsel did

elicit testimony tending to establish that UFO’s fiscal year ended in July. See 6

R. 41-43. Further, the record contained overwhelming evidence that defendant’s

company remained in very poor financial condition at the end of 1987.

      Defendant argues that defense counsel should have cross-examined Makund

Gangwal, UFO’s bookkeeper, concerning a number of documents he signed as

UFO’s chief financial officer during his employment. Defendant, however, failed

to allege with specificity what documents Gangwal signed as UFO’s chief

financial officer, other than the SEC filing underlying count ten of the indictment.

See Hatch, 58 F.3d at 1457; see also Church v. Sullivan, 942 F.2d 1501, 1513

(10th Cir. 1991) (defendant bears burden of establishing how more extensive

cross-examination would have changed outcome of trial); United States v. Taylor,

832 F.2d 1187, 1198-99 (10th Cir. 1987) (rejecting ineffective assistance claim

where defendant failed to come forward with documents that he claimed would

exonerate him).


                                         -5-
      Because defendant has failed to allege any claim which, if proven, would

entitle him to relief, the district court did not abuse its discretion in denying the

§ 2255 motion without conducting an evidentiary hearing.

      AFFIRMED.

                                                      Entered for the Court

                                                      James K. Logan
                                                      Circuit Judge




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