                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               JUN 10 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 DAVID CHARLES HICKS,

               Petitioner - Appellant,

          v.                                                No. 98-6413
                                                     (D. Ct. No. 96-CV-662-A)
 STEVE HARGETT, Warden,                                     (W.D. Okla.)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      This appeal is from an order of the district court denying petitioner Hicks’

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Petitioner’s claims are controlled by the provisions of the Antiterrorism and


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1217 (1996).

Petitioner appeals on the grounds that the district court erred by maliciously

denying the writ, holding that the use of appellant’s prior conviction to enhance

his sentence was constitutionally valid, finding that petitioner received effective

assistance of trial counsel, and denying petitioner’s claim that he was denied his

constitutional right to a direct appeal. We decline to issue a certificate of

appealability.

      The magistrate judge in this action thoroughly reviewed all of the issues

raised by petitioner in the district court. The magistrate judge first found that

petitioner was not entitled to attack collaterally the sentence for which he was no

longer in custody. We agree. Thus, in this proceeding petitioner can attack only

those sentences for which he is currently incarcerated. The magistrate judge also

reviewed thoroughly those issues that have been procedurally defaulted either

through a failure to appeal or a failure to withdraw a guilty plea. We concur with

the magistrate judge that petitioner’s claim challenging a prior conviction in

Carter County, Oklahoma has been procedurally defaulted. See, e.g., Hickman v.

Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). Additionally, petitioner fails to

show the requisite cause and prejudice or showing of actual innocence necessary

to overcome his default. See id.

      However, petitioner is, as the magistrate judge found, entitled to raise his


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claim of ineffective assistance of counsel in this habeas proceeding. See id. at

1272; Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994). Petitioner

claims that his counsel was ineffective for failing to investigate his prior

convictions at sentencing and for failing to file a motion to withdraw a guilty plea

so that petitioner could appeal his sentences. After reviewing the filings in the

district court, the report and recommendation of the magistrate judge, the

subsequently filed objections to that report and recommendation, including the

additional affidavits, and the filings in this court, we agree with the magistrate

judge and the district court that the record fails to show that petitioner’s trial

counsel was ineffective for failing to investigate the convictions used for

enhancement of his sentence. As the district court and the magistrate judge

observed, counsel was not ineffective because any investigation of the Carter

County conviction would not have prevented the sentence enhancement based on

petitioner’s four other prior convictions that the trial court could have used

toward enhancement. Regarding the guilty plea withdrawal, petitioner did not

challenge the magistrate judge’s finding that counsel had not failed to file a

withdrawal of his guilty plea. The record contains sufficient evidence to show

that petitioner did not request that his attorney file a withdrawal within the ten

day period. Therefore, counsel’s performance in this respect was not deficient.

      All of the other claims raised in this petition have no merit. This court has


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reviewed petitioner’s request for a certificate of appealability, the pro se appellate

brief, the district court order, the magistrate judge’s report and recommendation,

and the entire record on appeal. That review demonstrates that the district court

order denying relief is not deserving of further proceedings, debatable among

jurists of reason, or subject to different resolution on appeal. Petitioner has not

made a substantial showing of the denial of a constitutional right and is not

entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

Accordingly, this court DENIES petitioner’s request for a certificate of

appealability for substantially those reasons set out in the report and

recommendation of the magistrate judge. We DISMISS this appeal. Petitioner’s

motion for leave to proceed in forma pauperis is DENIED.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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