* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MICHAEL RAYMOND STONE,

Defendant-Appellant. No. 97-8111 (D.C. No. 97-CV-29-B) (D. Wyo.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

In July 1995, defendant was sentenced by the Wyomin g federal court to seventy months’ imprisonment for manufacturing and distributing methamphetamine, and conspiring to possess with int ent to distribute methamphetamine. He registered no objection to the calculation of his criminal history contained in the presentence report. He di d 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 thatmotion 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 h is presentence report and resentence him. The district court denied the moti on. 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 re port 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 assist ance of counsel can satisfy the cause and prejudice requirement. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995).-3-

Defendant alleges his attorney rendered constitutio nally ineffective assistance by failing to object to the presentence report, which included a conviction entered against him on a counseled gui lty 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 C ounty charges were ultimately dismissed and, therefore, could not be u sed to calculate his sentence in the Wyoming case. Defendant cannot dispute thatthe Yuba County charges were dismissed on November 16, 1995, four months af ter he was sentenced in the Wyoming case. Defendant relies on a document entitled “Dispositio n of Arrest and Court Action” pertaining to the Yuba County charges to es tablish that he did not enter a guilty plea to those charges, contrary to the fin dings 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 th e 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 assi stance, a defendant must demonstrate both that his attorney’s representationwas deficient and that the attorney’s substandard performance prejudiced him. See Strickland v.-4-

Washington , 466 U.S. 668, 687 (1984). Defendant has failed t o meet this burden. The two selected documents pertaining to the Yuba C ounty charges are insufficient to establish that those charges were d ismissed prior to entry of a guilty plea. Defendant has not established any e rror 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. Accordi ngly, he cannot fault his counsel for failing to challenge the presentence report. C f. United States v. King , 936 F.2d 477, 480 (10th Cir. 1991) (“An attorney’s fail ure to investigate cannot be charged as a claim of ‘ineffective assistance of co unsel’ when the essential and foundational information required to trigger such an investigation is withheld from the defendant’s attorney by the defendant hims elf.”) (quotation omitted). Defendant also cannot fault his attorney for failin g 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 se ntence on the ground that his Yuba County conviction was subsequently se t aside, see United States v. Cox , 83 F.3d 336, 339 (10th Cir. 1996), we conclude th at 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-5-

must examine grounds upon which defendant’s sentenc e 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 constitutiona l invalidity, innocence, or errors of law,” id. at 1366, and it was appropriate to include the Yub a County charges in the calculation of his federal sentence. Defendant’s request for a certificate of appealabil ity is denied. The appeal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge