                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 28 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-8111
                                                    (D.C. No. 97-CV-29-B)
    MICHAEL RAYMOND STONE,                                (D. Wyo.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      In July 1995, defendant was sentenced by the Wyoming federal court

to seventy months’ imprisonment for manufacturing and distributing

methamphetamine, and conspiring to possess with intent to distribute

methamphetamine. He registered no objection to the calculation of his criminal

history contained in the presentence report. He did not file a direct appeal. Nine

months after he was sentenced, he filed a motion to correct errors in his

presentence report. The district court denied that motion and this court affirmed,

noting that relief must be sought pursuant to 28 U.S.C. § 2255.     See United States

v. Stone , No. 96-8039, 1996 WL 606311 (10th Cir. Oct. 23, 1996).      Defendant

then filed a motion pursuant to § 2255 to correct his presentence report and

resentence him. The district court denied the motion. He now appeals the denial,

proceeding pro se. We deny issuance of a certificate of appealability and dismiss

the appeal.

      Defendant’s failure to object to the presentence report at the sentencing

hearing will preclude him from raising the issue in a § 2255 motion, absent

a showing of cause and prejudice. See United States v. Frady, 456 U.S. 152,

167-68 (1982). Constitutionally ineffective assistance of counsel can satisfy the

cause and prejudice requirement. See United States v. Cook, 45 F.3d 388, 392

(10th Cir. 1995).




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      Defendant alleges his attorney rendered constitutionally ineffective

assistance by failing to object to the presentence report, which included

a conviction entered against him on a counseled guilty plea in Yuba County,

California. Three points were added to defendant’s criminal history score based

on the Yuba County case. He claims that the Yuba County charges were

ultimately dismissed and, therefore, could not be used to calculate his sentence

in the Wyoming case. Defendant cannot dispute that the Yuba County charges

were dismissed on November 16, 1995, four months after he was sentenced in

the Wyoming case.

      Defendant relies on a document entitled “Disposition of Arrest and Court

Action” pertaining to the Yuba County charges to establish that he did not enter

a guilty plea to those charges, contrary to the findings in the presentence report.

He has also produced the November 1995 request and order for dismissal of the

Yuba County charges. Defendant has not produced the complete Yuba County

court file, however, and he has not denied that he entered a guilty plea to those

charges. Rather, he argues only that the documents he submitted fail to prove

he entered a counseled guilty plea.

      To establish that counsel provided ineffective assistance, a defendant must

demonstrate both that his attorney’s representation was deficient and that the

attorney’s substandard performance prejudiced him. See Strickland v.


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Washington, 466 U.S. 668, 687 (1984). Defendant has failed to meet this burden.

The two selected documents pertaining to the Yuba County charges are

insufficient to establish that those charges were dismissed prior to entry of

a guilty plea. Defendant has not established any error in the presentence report to

which his attorney should have objected. Moreover, he does not contend that he

told his counsel about this alleged error. Accordingly, he cannot fault his counsel

for failing to challenge the presentence report. Cf. United States v. King, 936

F.2d 477, 480 (10th Cir. 1991) (“An attorney’s failure to investigate cannot be

charged as a claim of ‘ineffective assistance of counsel’ when the essential and

foundational information required to trigger such an investigation is withheld

from the defendant’s attorney by the defendant himself.”) (quotation omitted).

Defendant also cannot fault his attorney for failing to foresee that the Yuba

County charges would be dismissed after the Wyoming case was concluded.

Defendant has failed to establish that his attorney’s performance was

constitutionally deficient.

      To the extent defendant argues he may reopen his sentence on the ground

that his Yuba County conviction was subsequently set aside, see United States v.

Cox, 83 F.3d 336, 339 (10th Cir. 1996), we conclude that the grounds upon which

the Yuba County charges were dismissed do not warrant reopening his federal

sentence, see United States v. Hines, 133 F.3d 1360, 1363 (10th Cir. 1998) (court


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must examine grounds upon which defendant’s sentence was set aside). Here, the

district court found that the Yuba County case was dismissed because defendant

was sentenced to prison in this case. Accordingly, the Yuba County charges were

not dismissed “for reasons related to constitutional invalidity, innocence, or errors

of law,” id. at 1366, and it was appropriate to include the Yuba County charges in

the calculation of his federal sentence.

      Defendant’s request for a certificate of appealability is denied. The appeal

is DISMISSED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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