                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                              AUG 7 1998
                       FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                Clerk

UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

v.                                          No. 97-6288
                                      (D.C. No. CIV-97-336-A)
JAMES EMMANUEL EARLS,                       (W.D. Okla.)

           Defendant-Appellant.


UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

v.                                          No. 97-6308
                                       (D.C. No. 96-CV-2044)
BARRY DEAN BISCHOF,                         (W.D. Okla.)

           Defendant-Appellant.


UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

v.                                         No. 98-6158
                                        (D.C. No. 93-CR-44)
BARRY DEAN BISCHOF, also                   (W.D. Okla.)
known as Wes, also known as Barry,
also known as Parry Wesley Hardin,

           Defendant-Appellant.
                           ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, Circuit Judges.



      After examining defendants’ 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); 10th Cir. R. 34.1.9.

The cases are therefore ordered submitted without oral argument.

      In appeals No. 97-6288 and No. 97-6308, Defendant Earls, represented by

counsel, and Defendant Bischof, acting pro se, seek the issuance of certificates

of appealability, see 28 U.S.C. § 2253(c)(1)(B), that would enable them to appeal

the district court’s denial of 28 U.S.C. § 2255 relief from their drug trafficking

convictions.

      Mr. Earls argues that the district court abused its discretion in refusing to

allow him to amend his § 2255 motion to include a claim seeking the reduction of

his conspiracy sentence because the indictment and general verdict were

ambiguous as to the object of the conspiracy. See Stafford v. Saffle, 34 F.3d



*
      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.

                                         -2-
1557, 1560 (10th Cir. 1994) (reviewing denial of leave to amend habeas petition

for abuse of discretion). Mr. Earls sought to amend his § 2255 motion prior to the

district court’s decision denying § 2255 relief, the claim he sought to include by

amendment is meritorious, see United States v. Pace, 981 F.2d 1123, 1128-30

(10th Cir. 1992); see also United States v. Bush, 70 F.3d 557, 560-62 (10th Cir.

1995) (applying Pace to post-sentencing guidelines guilty plea), and the

government conceded this same claim in Mr. Bischof’s § 2255 proceeding,

resulting in a five-year reduction in Mr. Bischof’s conspiracy sentence. Under

these circumstances, we must conclude that the district court abused its discretion

in refusing to allow Mr. Earls to amend his § 2255 motion to include this claim.

See Stafford, 34 F.3d at 1560 (leave to amend should be freely granted when

justice so requires). We, therefore, issue Mr. Earls a certificate of appealability

as to this one issue, and remand this claim to the district court for resentencing.

      Because both defendants have failed to make a substantial showing of the

denial of a constitutional right as to any of their other claims, see 28 U.S.C.

§ 2253(c)(2), we deny the certificates in all other respects and dismiss the

remainder of these appeals.

      In appeal No. 98-6158, Defendant Bischof, represented by counsel, appeals

the district court’s refusal to conduct de novo resentencing, after granting him

§ 2255 relief from his 18 U.S.C. § 924(c) conviction. We construe this appeal as


                                          -3-
requesting a certificate of appealability, and deny that request. See United States

v. Mendoza, 118 F.3d 707, 709 n.3 (10th Cir.), cert. denied, 118 S. Ct. 393

(1997); see also United States v. Pearce, No. 97-2173, 1998 WL 247951, at *1 n.2

(10th Cir. May 18, 1998) (treating government’s appeal from district court’s

decision not to resentence defendant, after vacating his conviction in § 2255

proceeding, as appeal under 28 U.S.C. § 2253, rather than as direct appeal under

18 U.S.C. § 3742).

      Generally, a defendant cannot raise an issue for the first time in a § 2255

proceeding, absent a showing of cause and prejudice, or that the federal court’s

failure to consider the issue will result in a fundamental miscarriage of justice.

See United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). A defendant may,

however, raise a claim of ineffective assistance of counsel for the first time in

a § 2255 proceeding. See, e.g., United States v. Kunzman, 125 F.3d 1363, 1365

(10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).

      Arguing several different theories of relief, defendants first assert that

a government witness, William Craig, falsely testified that he was not testifying

pursuant to a plea agreement. In light of the overwhelming evidence of the guilt

of both defendants and the minimal importance of Mr. Craig’s testimony to the

government’s case, there is not a reasonable probability that disclosure of the plea

agreement would have affected the jury’s decision. See, e.g., Kyles v. Whitley,


                                          -4-
514 U.S. 419, 433 n.7 (1995) (prosecutor’s knowing use of perjury requires

reversal of conviction if there is any reasonable likelihood that the false testimony

could have affected jury’s decision); Strickland v. Washington, 466 U.S. 668, 694

(1984) (constitutionally ineffective assistance requires showing that there is

reasonable probability that, but for counsel’s deficient performance, result of

proceeding would have been different); United States v. Scarborough, 128 F.3d

1373, 1376 (10th Cir. 1997) (to establish Brady v. Maryland, 373 U.S. 83 (1963),

violation, there must be reasonable probability that, had the suppressed evidence

been disclosed, result of proceeding would have been different).

      Defendants next argue that their attorneys were ineffective for failing

to require the government to prove, at sentencing, that the methamphetamine

involved in these offenses was D-methamphetamine, rather than

L-methamphetamine. Because government lab reports and circumstantial

evidence introduced at trial established that some of the trafficked substance

was D-methamphetamine, defendants’ attorneys did not provide ineffective

assistance by failing to assert this issue at sentencing. See United States v.

Behler, 100 F.3d 632, 636 (8th Cir. 1996) (“When the government seizes and

tests an amount of a controlled substance that is less than the whole for which the

defendant is responsible, the sentencing court is permitted to infer from these

samples that the whole quantity attributable to the defendant contained the same


                                          -5-
substance.”), cert. denied, 118 S. Ct. 152 (1997). See generally Strickland,

466 U.S. at 692 (counsel’s performance must be both deficient and prejudicial).

         In further support of this claim, Mr. Earls also asserts that he has newly

discovered evidence questioning the accuracy of the government’s lab tests.

See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (cause excusing procedural

bar includes previously unavailable factual basis of claim). To the extent that

this new evidence was not submitted to the district court, however, we will not

consider it on appeal and, therefore, we deny Mr. Earls’ motion to supplement the

appellate record. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500,

506 (10th Cir. 1994) (in reviewing summary judgment decision, appellate court

cannot consider evidence that was not before district court). In any event, his

new evidence is too vague and conclusory to call into doubt the results of the

government’s lab tests or to otherwise require an evidentiary hearing on this

issue.

         Mr. Bischof’s arguments that his attorney was ineffective for failing to

insure that the audiotapes given to the jury during its deliberations were properly

redacted, and that the government failed to disclose that one of its agents

attempted to intimidate a potential witness, are meritless. 1



1
      Although Mr. Earls also asserted these two arguments to the district court,
he does not pursue them on appeal.

                                            -6-
      Finally, Mr. Bischof challenges the district court’s decision not to conduct

de novo resentencing after granting him § 2255 relief from his 18 U.S.C. § 924(c)

conviction. The district court vacated that conviction under Bailey v. United

States, 516 U.S. 137 (1995), and granted the government’s motion to resentence

Mr. Bischof, after considering the sentencing guidelines enhancement for the use

and possession of a weapon. See U.S.S.G. § 2D1.1(b)(1). See generally

Mendoza, 118 F.3d 707. In resentencing Mr. Bischof, the district court found

that the enhancement was not warranted, but it also denied Mr. Bischof’s motion

to conduct de novo resentencing. The district court did not abuse its discretion in

doing so. See United States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996).

      We, therefore, GRANT Mr. Earls’ application for a certificate of

appealability in appeal No. 97-6288 as to the single issue challenging the district

court’s denial of his motion to amend his § 2255 motion, deem the district court

to have abused it discretion in denying Mr. Earls leave to amend, and REMAND

that claim to the district court for resentencing. In all other respects, we DENY




                                         -7-
defendants’ applications for certificates of appealability and DISMISS the

remainder of these appeals.



                                                   Entered for the Court



                                                   James E. Barrett
                                                   Senior Circuit Judge




                                        -8-
