                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 26 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 99-4226
 ROBERT WIKTOR,                                      (D.C. No. 96-CV-921)
                                                           (D.Utah)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Robert Wiktor seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

Wiktor claims that his trial and appellate counsel committed three errors that

needlessly increased his sentence. The district court dismissed Wiktor’s habeas


       This order and judgment is not binding precedent, except under the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.
petition in its entirety. We affirm in part, vacate in part, and remand for further

proceedings.

                                           I

      Wiktor’s underlying convictions stem from his participation in a fraudulent

telemarketing scheme. The government alleged that Wiktor, as the president of a

company named Great Western Distributors, Inc. (“Great Western”), defrauded

hundreds of people of more than $2,000,000. The government alleged that Wiktor

directed salespersons at Great Western to inform victims that they had won one of

five “valuable” prizes, including a Ford Bronco. To receive one of these prizes,

the victim was required to purchase vitamins for $598. Instead of receiving one

of the valuable prizes, the victim ultimately received a pendant worth

approximately $50. In October 1993, a jury convicted Wiktor of wire fraud and

conspiracy under 18 U.S.C. § 1343 and 18 U.S.C. § 371.

      The case then proceeded to the sentencing phase. In addition to ordering

restitution, the district court sentenced Wiktor to a prison term of 60 months,

followed by three years of supervised release. Using the 1993 version of United

States Sentencing Guideline (“U.S.S.G.”) § 2F1.1(b)(1), the court considered

evidence of the total loss suffered by Wiktor’s victims. In determining Wiktor’s

criminal history points, the court assessed one point for a 1991 reckless driving

conviction and another point for a 1993 driving under the influence (“DUI”)


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conviction. We affirmed Wiktor’s sentence on appeal.           United States v. Wicktor ,

51 F.3d 287, 1995 WL 113409 (10th Cir. Mar. 17, 1995) (unpublished).

       Wiktor filed a habeas petition in October 1996. After the government

responded to the petition, Wiktor replied by filing a motion for leave to amend.

The district court granted Wiktor’s motion, adding that “[n]o further reply from

[the] movant will be accepted.” 4/7/97 Order at 1. After the government

responded to the amended petition, Wiktor filed another motion for leave to

amend, which the district court denied. In June 1999, a magistrate judge issued a

report recommending the denial of Wiktor’s petition. In his objections and

supplemental objections to the magistrate’s report, Wiktor claimed for the first

time that his counsel failed to object to the use of the reckless driving conviction

to enhance his criminal history points. After reviewing the matter de novo, the

district court adopted the magistrate’s report       in toto and dismissed Wiktor’s

petition. The court later granted Wiktor’s request for a certificate of

appealability.

                                             II

       On appeal, Wiktor claims that his trial and appellate counsel provided

ineffective assistance in three respects. Wiktor alleges that his attorneys (1)

failed to inform the district court that net loss, rather than total loss, must be

considered under U.S.S.G. § 2F1.1(b)(1); (2) failed to object to the improper


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assessment of a criminal history point for his reckless driving conviction; and (3)

failed to object to the improper assessment of a criminal history point for his DUI

conviction. To prevail on these claims, Wiktor must show that his lawyers’

conduct “fell below an objective standard of reasonableness” and that this

deficient performance prejudiced his defense.     Strickland v. Washington , 466 U.S.

668, 687-89, 691-92, 694 (1984);     accord United States v. Blackwell , 127 F.3d

947, 955 (10th Cir. 1997).

      Our standard of review is clearly established. “[W]e review the district

court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear

error.” United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998);   accord

Blackwell , 127 F.3d at 950. Ineffective assistance claims also present “mixed

questions of law and fact reviewed by this court de novo.”    Fox v. Ward , 200 F.3d

1286, 1294 (10th Cir. 2000);     see also Blackwell , 127 F.3d at 955 (commenting

that “we accept the district court’s factual findings unless clearly erroneous”

when reviewing a finding of ineffective assistance). Any interpretation or

application of the Sentencing Guidelines likewise warrants de novo review.

United States v. Contreras , No. 99-2147, 2000 WL 376614, at *1 (10th Cir. Apr.

13, 2000); see also United States v. Guidry , 199 F.3d 1150, 1158 (10th Cir. 1999)

(confirming that appellate review of a district court’s factual findings in this

context is “for clear error”).


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       The record on appeal does not support the district court’s dismissal of

Wiktor’s first claim. The Sentencing Guidelines provide for a 12-point increase

in a defendant’s offense level for losses between $1,500,000 and $2,500,000,         see

U.S.S.G. § 2F1.1(b)(1), and the “net loss” rule “requires the court to deduct from

the loss calculation any value the defendant gave the victim at the time of the

fraud.” United States v. Janusz , 135 F.3d 1319, 1324 (10th Cir. 1998);        see also

United States v. Reddeck , 22 F.3d 1504, 1512 (10th Cir. 1994) (stating that “loss

should be calculated as ‘the net value, not the gross value, of what was taken’”)

(citation omitted). The district court found that Wiktor’s fraud caused a total loss

of $2,447,651. The court went on to find that “even if the value of the vitamins

and pendant[s] were taken into consideration, the loss remains over $1,500,000

and no change in the sentencing calculation would result.” Magistrate’s Report

and Recommendation (“Report”) at 6. But the court          cited no evidence to support

the assertion that the value of the vitamins and pendants conveyed to the victims

was less than $947,651.    See 10/29/99 Order at 1-2 (adopting the magistrate’s

report); Report at 6 (containing no record citations). Nor did the government cite

any evidence to this effect in its response to Wiktor’s habeas petition.     See

Government’s Response In Opposition To Petitioner’s Motion Under 28 U.S.C.

§ 2255 To Vacate, Set Aside, Or Correct Sentence at 17 & n.7 (assuming, without

citations to the record, that each pendant was worth $50 and the value of the


                                              5
vitamins was $150); see also Government’s Response In Opposition To

Petitioner’s Amendment To His Motion Under 28 U.S.C. § 2255 at 7 (arguing that

the trial transcript “is not needed to respond further” to Wiktor’s “net loss”

claim). The government’s brief on appeal is similarly devoid of any citations to

the record on this point.   See Brief For The United States at 6 (relying exclusively

on magistrate’s report).

       Given this evidentiary gap, the district court erred by failing to hold an

evidentiary hearing. “Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief,” a district court must

“grant a prompt hearing thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto.” 28 U.S.C. § 2255;       accord United

States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996). Accordingly, “[r]eview in a

section 2255 habeas action entails a two-step inquiry: (1) whether the defendant is

entitled to relief if his allegations are proved; and (2) whether the district court

abused its discretion by refusing to grant an evidentiary hearing.”    United States

v. Whalen , 976 F.2d 1346, 1348 (10th Cir. 1992);      accord Lopez , 100 F.3d at 119.

Wiktor clearly alleged in his habeas petition that the value of the gifts received by

each victim “varied between $50 and $200,” that the value of the vitamins

received by each victim was “comparable to the Shaklee program of $65 to $120

per month,” and that additional proceedings were necessary to determine “the fair


                                             6
market value” of these items. Petition at 16-17. Wiktor also objected to the

magistrate’s report on the ground that “the year’s supply of vitamins” delivered to

each victim “had a value of between $780 and $1440 (depending upon the

purchase plan), and the pendants and other gifts had values of between $50 and

$200 depending upon the gift.” Petitioner’s Objections To Magistrate’s Report

And Recommendation And Request For De Novo Determination (“Objections”) at

2-3. If proved, these allegations may show that Wiktor was entitled to a reduction

in his offense level, which in turn may call into question the performance of his

counsel. That being the case, our ruling in        Whalen is fully applicable here:

“Under these circumstances, the district court abused its discretion by adopting

the magistrate judge’s findings absent an evidentiary hearing.” 976 F.2d at 1349.

We therefore vacate the dismissal of Wiktor’s first claim and remand the case for

an evidentiary hearing on the issue of “net loss.”

       No evidentiary hearing is necessary on Wiktor’s second claim, however,

because the record reveals that Wiktor waived this claim by failing to raise it in a

timely manner. Wiktor’s habeas petition contains no claim regarding the

purportedly improper use of his reckless driving conviction, and Wiktor neither

sought nor received leave to add such a claim. Instead, Wiktor raised the claim

for the first time in his objections to the magistrate’s report.    See Objections at 6

(asserting that the claim “only recently c[a]me to the attention of petitioner”);


                                               7
Supplement To Petitioner’s Objections To Magistrate’s Report And

Recommendation And Request For De Novo Determination at 3 (asserting that

“petitioner did not recognize the significance” of the use of his reckless driving

conviction until after the magistrate issued its report). Even if we assume that

these objections somehow constituted a motion for leave to amend, a denial of

that motion on timeliness grounds would have been well within the district court’s

discretion. See Parker v. Champion , 148 F.3d 1219, 1222-23 (10th Cir. 1998)

(“Where [a] party seeking amendment knows or should have known of the facts

upon which the proposed amendment is based but fails to include them in the

original complaint, the motion to amend is subject to denial.”) (citation omitted),

cert. denied , 525 U.S. 1151 (1999); id. (quoting First City Bank, N.A. v. Air

Capitol Aircraft Sales, Inc. , 820 F.2d 1127, 1133 (10th Cir. 1987) for the

proposition that a court “acts within the bounds of its discretion when it denies

leave to amend for ‘untimeliness’ or ‘undue delay’”).      Wiktor waited over two

and a half years to assert a claim based on the use of his reckless driving

conviction, declined to raise the claim when the district court granted his first

motion for leave to amend, and offered no credible explanation for his failure to

include the claim in his original and amended petitions.     Cf. Moore v. Reynolds ,

153 F.3d 1086, 1116 (10th Cir. 1998) (affirming the denial of a motion for leave

to amend because state prisoner waited over two years before attempting to add


                                            8
the claim), cert. denied , 526 U.S. 1025 (1999); Stafford v. Saffle , 34 F.3d 1557,

1560 (10th Cir. 1994) (affirming the denial of a motion of leave to amend because

a state prisoner advanced “no credible reasons” why the claim was not included in

his initial petition).   1



        Wiktor’s third claim is even more untimely. Wiktor did not raise a claim

based on the use of his DUI conviction in his original or amended petitions, his

motions for leave to amend, or his objections to the magistrate’s report. Rather,

the first mention of the claim appears in Wiktor’s appellate brief. It is beyond

cavil that “[w]e will not consider issues not presented to the federal district court,

absent extraordinary circumstances.”       Fowler v. Ward , 200 F.3d 1302, 1310 (10th

Cir.); accord Rhine v. Boone , 182 F.3d 1153, 1154 (10th Cir. 1999),     cert. denied ,

120 S. Ct. 808 (2000). Wiktor makes no argument that “extraordinary

circumstances” exist in this case. And while Wiktor’s pro se status obliges us to

construe his pleadings “liberally,”    see Haines v. Kerner , 404 U.S. 519, 520-21

(1972), we have “repeatedly insisted that pro se parties ‘follow the same rules of

procedure that govern other litigants.’”     Nielsen v. Price , 17 F.3d 1276, 1277



        1
         Wiktor suggests that his second claim is ripe for appellate review because
(1) the district court did not formally protest its inclusion in Wiktor’s objections
to the magistrate’s report; and (2) Wiktor discussed the claim in his request for a
certificate of appealability, which the district court granted. Neither of these acts
demonstrates that Wiktor sought leave to add the claim or otherwise brought the
issue to the district court’s attention in a timely fashion.

                                             9
(10th Cir. 1994) (citation omitted);   see also Casper v. Commissioner of Internal

Revenue , 805 F.2d 902, 906 n.3 (10th Cir. 1986) (noting that a pro se litigant “is

still required to have an awareness of and comply with relevant procedural and

substantive rules of law”). As a consequence, we affirm the district court’s

dismissal of Wiktor’s second and third claims for relief.

       AFFIRMED IN PART, VACATED IN PART, and REMANDED for further

proceedings. Wiktor’s motion to proceed in forma pauperis is GRANTED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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