                                                                            F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 29 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 02-6274 & 02-6388
                                                   (D.C. No. CIV-98-896-R)
    RAYMOND HOWARD HICKMAN,                              (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRISCOE and McKAY , Circuit Judges, and         BRORBY , Senior Circuit
Judge.



         After examining the 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)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

         We have consolidated these cases for purposes of disposition. In

No. 02-6274, Mr. Hickman appeals from the district court’s order denying his


*
      This order and judgment is not binding precedent, except under the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.
motion to vacate, set aside or correct his sentence, brought pursuant to 28 U.S.C.

§ 2255. In No. 02-6388, he appeals from the district court’s order denying his

motion for discovery. We affirm the district court’s orders.

      No. 02-6274

      The underlying facts are set forth at some length in Mr. Hickman’s direct

appeal, see United States v. Ivy , 83 F.3d 1266 (10th Cir. 1996), and we will not

repeat them here. Mr. Hickman was convicted after a jury trial of three counts of

distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1); one count of

distribution of cocaine to persons under twenty-one in violation of 21 U.S.C.

§ 859; and three counts of possession with intent to distribute cocaine base in

violation of 21 U.S.C. § 841(a)(1). He presents two Sixth Amendment ineffective

assistance of trial counsel claims. He contends that: (1) counsel failed to raise an

adequate objection to the factual basis of the district court’s sentencing

determination that Mr. Hickman was responsible for twenty kilograms of crack

cocaine; and (2) counsel failed to obtain the suppression of false testimony by

witnesses against him concerning what the government knew about their

involvement in the conspiracy when it entered into guilty pleas with them. We

previously granted Mr. Hickman a certificate of appealability (COA) on these

issues. In reviewing the denial of a § 2255 motion, we examine the district

court’s factual findings for clear error, and its legal conclusions de novo.


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United States v. Mora , 293 F.3d 1213, 1216 (10th Cir.),     cert. denied , 537 U.S.

961 (2002).

      Mr. Hickman presents a variety of arguments in opposition to the finding

that he was responsible for twenty kilograms of crack cocaine. He contends that

his attorney (1) improperly failed to attack Agent Hersley’s false statements at

sentencing concerning the quantity of crack cocaine distributed; (2) should have

argued that witness Flora Ingram’s statements about the amounts that she

distributed with him were not credible, lacked corroboration, and only showed

that he was responsible for three and one-half kilograms in any event; (3) should

have used F.B.I. 302 statements from other witnesses       to impeach Agent Hersley;

and (4) should have argued that he could not be held liable for the full range of

the charged conspiracy because he did not participate during the entire time frame

of its operation.

      In Mr. Hickman’s direct appeal, he and other co-defendants presented

similar challenges to the calculation of drug quantities allegedly involved in the

conspiracy. Defendants Norwood and Traylor argued that the district court’s drug

quantity finding for the overall conspiracy relied on an estimate based on Agent

Hersley’s estimates and Flora Ingram’s testimony that lacked “sufficient indicia

of reliability to support its probable accuracy.” Ivy, 83 F.3d at 1289 (quotation

omitted). Mr. Hickman also argued that the district court erred in determining


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that twenty kilograms of the estimated fifty kilograms distributed during the

entire scope of the conspiracy could be personally attributed to him. Id. at 1291.

We rejected each of these arguments, finding that in light of the trial evidence,

the district court’s findings were not clearly erroneous. Id. This court also

accepted the district court’s finding, which Mr. Hickman now challenges, that

there were witnesses who testified that “twelve to fifteen individuals sold

between one and three ounces of crack cocaine per week for three years.” Id.

      All but one of Mr. Hickman’s challenges are foreclosed by our prior

holdings in his direct appeal. Although Mr. Hickman attempts to re-cast the

issues in the form of ineffective assistance claims, our decision against him on

these issues in his direct appeal means that he cannot show that he was prejudiced

by his attorney’s failure to raise them at trial. We will not revisit those holdings

from the prior appeal in this § 2255 proceeding. See United States v. Prichard,

875 F.2d 789, 791 (10th Cir. 1989) (per curiam).

      Mr. Hickman’s only argument not foreclosed by the decision on his direct

appeal is that his trial attorney unreasonably failed to impeach Agent Hersley’s

testimony with the witnesses’ 302 statements. Our decision on his direct appeal

was based on the evidence actually presented at sentencing. We did not have

occasion to determine whether attempts to impeach Agent Hersley using the




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302 statements would have been successful, therefore giving rise to an ineffective

assistance of trial counsel claim.

      We discern no reversible error in the district court’s order denying

Mr. Hickman’s § 2255 petition, for two reasons. First, Mr. Hickman did not raise

the 302 impeachment issue as part of his § 2255 motion. He mentioned it for the

first time in his “motion for reconsideration,” after the district court had denied

his petition. R. doc. 790. The district court construed the motion for

reconsideration as a motion to alter or amend the judgment under Fed. R. Civ. P.

59(e), and denied the motion on the merits. Id. doc. 791, at 2.

      Mr. Hickman did not amend his notice of appeal in this case to include an

appeal from the order denying reconsideration. Instead, he filed a separate notice

of appeal on October 17, 2002 from the denial of his motion for reconsideration.

Id. doc. 803. That appeal, however, was procedurally terminated by this court.

See United States v. Hickman, No. 02-6249 (10th Cir. Apr. 17, 2003)

(unpublished). In light of this procedural history, the arguments about Mr.

Hickman’s attorney’s failure to use the witnesses’ 302 statements are not properly

before us in this appeal. They belong to the prior, procedurally-terminated

appeal.

      Second, even if we were to consider Mr. Hickman’s argument in this

appeal, he fails to show prejudice from his attorney’s failure to impeach Agent


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Hersley with the 302 statements. Mr. Hickman was re-sentenced twice, in 1996

and 1997, under the United States Sentencing Guidelines then in effect. These

guidelines provided, as they still do today, that any quantity of cocaine base equal

to or over 1.5 kilograms results in a base offense level of 38. See USSG § 2D1.1

(1995). Our review of the record persuades us that even if Mr. Hickman’s

counsel had challenged Agent Hersley’s testimony with the 302 statements, he

would have been unable to persuade the district court that Mr. Hickman was

responsible for less than 1.5 kilograms of cocaine base. Therefore, his base

offense level would have been the same in any event, and he fails to demonstrate

prejudice.

      We turn to Mr. Hickman’s claim that counsel failed to obtain suppression

of false testimony. He argues that his counsel should have challenged Flora

Ingram’s testimony against him, and that of other witnesses who pled guilty, on

the basis that the government knowingly understated in their plea agreements the

amount of drugs attributable to them. Most of Mr. Hickman’s argument on this

issue is devoted to Ms. Ingram’s plea agreement, which stated that the

government was aware that she was responsible for the distribution of

approximately five to twenty grams of cocaine base. Mr. Hickman contends that

by the time Ms. Ingram signed the plea agreement, on September 28, 1993, the

government knew that she was responsible for far more than this quantity.


                                         -6-
He also argues that the government presented false testimony about when the plea

agreement was reached.

      As we explained in Ivy, § 1B1.8(a) protects statements made by witnesses

during the course of negotiation of a plea agreement. Id. at 1283-84. Therefore,

amounts disclosed during negotiations cannot be used against a witness in

violation of her plea agreement. The record shows that although Ms. Ingram did

not sign the plea agreement until September 28, 1993, her attorney negotiated the

agreement on July 29, 1993. The issue of what the government knew, and when,

was fully explored at trial, not only through Ms. Ingram’s testimony, but also

through the testimony of Mr. Lacy, her attorney. Mr. Hickman fails to show that

better performance by his attorney would have overcome our previous

determination that at the time of the plea negotiations, any evidence the

government had concerning Ms. Ingram’s involvement with additional drug

quantities would have been insufficient to provide proof by a preponderance of

the evidence. Id. at 1284.

       Mr. Hickman further argues, citing former Fed. R. Crim. P. 11(e)(5)

(2001), that the government and Ms. Ingram were required to disclose the

existence of the plea agreement when she was arraigned. The fact that she did not

do so, he argues, suggests that no such plea agreement was in existence by

September 28, 1993. Although Ms. Ingram did not formally change her plea to


                                         -7-
“guilty” until January 3, 1994, the record contains a copy of her plea agreement,

which was signed on September 28, 1993. Mr. Hickman gives us no good reason

to doubt the authenticity of this document, or the veracity of the trial testimony

that Ms. Ingram’s attorney reached an agreement in July 1993, which was

memorialized in the September 28, 1993 agreement. Mr. Lacy, Ms. Ingram’s

counsel, testified that he conferred with federal agents on July 29, 1993, at which

time it was agreed that Ms. Ingram would cooperate with the government and that

her “relevant conduct” would be limited to the five-to-ten gram range. Trial Tr.,

Vol. IV at 757. Although the existence of the plea agreement should perhaps

have been disclosed at the September 28, 1993 arraignment, failure of disclosure

is not sufficient evidence that negotiations had not begun or that the plea

agreement was not in existence to overcome the plain testimony at trial.

      To the extent Mr. Hickman challenges his attorney’s failure to exclude the

testimony of other witnesses who entered into plea agreements with the

government, a similar analysis applies, and leads to the same result. Finally, to

the extent Mr. Hickman argues that Ms. Ingram wrongfully received “something

of value” for her testimony in the form of leniency, this argument is foreclosed by

our decision in United States v. Singleton, 165 F.3d 1297 (10th Cir. Jan. 8, 1999)

(en banc). In sum, Mr. Hickman fails to establish prejudice sufficient to make




                                         -8-
out a claim for violation of his Sixth Amendment right to effective assistance

of counsel.

      No. 02-6388

      On October 25, 2002, two months after he filed his notice of appeal from

the district court’s order denying his § 2255 motion, Mr. Hickman moved in the

district court for discovery pursuant to “Rule 6(a) Governing Habeas Corpus

Case” [sic]. R. doc. 806. He sought documents relating to Ms. Ingram’s arrests,

preliminary hearing, arraignments, and entry of guilty plea, to support his

argument that the government knew that she had distributed greater quantities

than those disclosed in the plea agreement. The district court struck his motion

as untimely.

      Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United

States District Courts permits discovery with leave of the district judge, “in the

exercise of his discretion and for good cause shown . . . but not otherwise.”

Mr. Hickman argues that he has shown good cause for the delay in filing his

motion for discovery, because he could not have discovered the existence of the

information he seeks until October 2002. He contends that the district court

docket sheets available up until that time were missing pertinent dates relating to

Ms. Ingram’s plea agreement, pleas, etc. We note, however, that a docket sheet in

the record on appeal attached to the preliminary record in Mr. Hickman’s direct


                                         -9-
appeal and dated April 12, 1994, contains the very information that Mr. Hickman

claims was not available until October 2002. The district court did not abuse its

discretion in denying the motion for discovery as untimely.

      The judgments of the district court are AFFIRMED. All pending motions

are denied. The mandate shall issue forthwith.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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