       UNITED STATES COURT OF APPEALS
                              Tenth Circuit
                   Byron White United States Courthouse
                            1823 Stout Street
                         Denver, Colorado 80294
                             (303) 844-3157
Patrick J. Fisher, Jr.                                                          Elisabeth A.
Shumaker
Clerk                                                                           Chief Deputy Clerk

                                        December 20, 1996


       TO:     All recipients of the captioned order and judgment

       RE:     96-1138, U.S. v. Fykes
               December 5, 1996


               Please be advised of the following correction to the captioned decision:

             The order and judgment is changed by deleting footnote one on page two.
       The reference to a denial of the certificate of appealability on the last page is also
       deleted, and the district court is affirmed on the merits.

               The corrected version of the order and judgment is attached.

                                                     Very truly yours,

                                                     Patrick Fisher, Clerk



                                                     Susie Tidwell
                                                     Deputy Clerk
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 96-1138
                                                    (D.C. No. 95-M-3001)
 MICHAEL FYKES,                                           (D. Colo.)

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **


      Defendant-Appellant Michael Fykes appeals the district court’s dismissal of

his petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §

2255. The district court dismissed the petition as an abuse of the writ. For the

following reasons, we now affirm the district court’s order dismissing Fykes’s

petition as an abuse of the writ.


      * This order and judgment is not binding precedent, except under the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.

       ** 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); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
      Fykes was convicted of conspiracy to distribute cocaine on December 4,

1992, and sentenced to 100 months in prison followed by five years of supervised

release. On direct appeal, Fykes argued that his criminal history had been

erroneously calculated as category IV due to the erroneous inclusion of a careless

driving offense in that calculation. We affirmed the sentence imposed by the

district court, concluding that even without the point charged for the careless

driving offense Fykes’s criminal history placed him in category IV. United States

v. Fykes, 19 F.3d 34 (Table), 1994 WL 97050 (10th Cir. Mar. 28, 1994) [Fykes I].

However, we noted that “if the alleged error should affect Mr. Fykes criminal

history category in the future, he may reargue the issue at that time.” Id.

      Subsequently, Fykes brought a habeas petition in which he claimed that his

trial counsel had provided ineffective assistance by failing to ensure that two

witnesses would be able to testify at trial. United States v. Fykes, 53 F.3d 343

(Table), 1995 WL 265930 (10th Cir. May 8, 1995) [Fykes II]. On appeal, we

affirmed the district court’s denial of that petition, finding that the testimony of

the two witnesses would not have altered the outcome of the trial. Id. at *2-*3.

On June 22, 1995, Fykes brought a second habeas petition under 28 U.S.C. § 2255

which again challenged the district court’s assessment of his criminal history. (I

R.O.A. Tab 2). Fykes did not appeal the district court’s June 23, 1995 order

dismissing that petition as an abuse of the writ. Id.


                                          -2-
      This is Fykes’s third effort to win relief under 28 U.S.C. § 2255. 1 Fykes

makes two arguments in the current petition. First, Fykes argues that a review of

his criminal history calculation has revealed another error by the trial court, in

which a marijuana possession conviction for which Fykes paid a $258 fine was

not treated as an exempt non-felony offense under U.S.S.G. § 4A1.2.(c)(1).

Second, Fykes agues that his appellate counsel provided ineffective assistance by

failing to argue that the marijuana conviction should not have been included in

the criminal history calculation. Fykes contends that we invited him to bring this

petition by stating in our opinion on direct appeal that “if the alleged error should

affect Mr. Fykes criminal history category in the future, he may reargue the issue

at that time.” Fykes I, 1994 WL 97050.

      Fykes has misconstrued both the statement in our earlier opinion and the

applicable doctrine of abuse of the writ. When we stated that Fykes was free to

relitigate whether his careless driving conviction should be counted in his

criminal history “in the future,” we meant only that should Fykes be convicted of

another offense our prior decision would not collaterally estop him from making


      1
              Fykes filed his petition on December 5, 1995, and thus this case is not
affected by the successive petition provisions of AEDPA, 28 U.S.C. § 2244(b), which
was signed into law on April 24, 1996. Compare Hatch v. Oklahoma, 92 F.3d 1012, 1014
(10th Cir. 1996) (holding successive petition provisions applicable where application to
file successive petition was filed after effective date of AEDPA); see also Bradshaw v.
Story, 86 F.3d. 164, 166 (10th Cir. 1996) (“A statute is effective upon the date of its
enactment unless an express provision states otherwise.” (quotation omitted)).

                                          -3-
that argument at that time. We did not suggest that Fykes should continue to

litigate this issue in connection with his present sentence.

      Moreover, the present petition is a patent abuse of the writ. Fykes

challenged his sentence on direct appeal, and has had ample opportunity to

challenge both his sentence and the effectiveness of his trial and appellate counsel

during his two previous habeas petitions. In fact, his direct appeal dealt

specifically with sentencing issues, and his first habeas petition was based on an

ineffective assistance claim. Accordingly, the district court properly found an

abuse of the writ in Fykes’s present attempt to raise those claims in a third habeas

petition. Cf. Rules Governing § 2254 Cases in the United States District Courts

9(b) (stating that finding of abuse of the writ may be found if petition does not

allege new or different grounds for relief, or if new and different grounds for

relief could have been raised in a previous petition). Further, Fykes has provided

no explanation for his failure to include any of the novel issues raised by the

present petition in his previous petition. Thus, we have no reason to find an

exception to the abuse of the writ doctrine here. United States v. Richards, 5 F.3d

1369 (10th Cir. 1993) (holding that defendant must show “cause and prejudice”

before exception to abuse of the writ will be found).




                                         -4-
      Accordingly, we AFFIRM the district court’s order dismissing Fykes’s

petition.



                                    ENTERED FOR THE COURT


                                    David M. Ebel
                                    Circuit Judge




                                      -5-
