*This order and judgment is not binding precedent, except under the doctrines of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

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 23 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CALVIN DEAN PETERS,

Petitioner - Appellant, No. 97-2254

v. (D. New Mexico)

TIM LEMASTER, Warden;

ATTORNEY GENERAL FOR THE

STATE OF NEW MEXICO,

Respondents - Appellees.

(D.C. No. CIV-96-1065-JP) 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, 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.
1The district court denied Mr. Peters’ request for a certificate of appealability, but

granted his motion to proceed on appeal in forma pauperis and ordered payment of a

$5.00 filing fee. Because this is a habeas proceeding, the Prison Litigation Reform Act

does not apply. See United States v. Simmonds, 111 F.3d 737, 743 (10th Cir. 1997). 

Mr. Peters filed an in forma pauperis motion with this court. 

-2-

Calvin Dean Peters, proceeding pro se, seeks a certificate of appealability

so that he may appeal the dismissal of his 28 U.S.C. § 2254 habeas corpus

petition, in which he challenges his 1980 conviction for kidnapping and criminal

sexual penetration. We deny his request for a certificate of appealability and

dismiss his appeal. We grant Mr. Peters’ motion to file a supplemental brief, and

we grant his motion to proceed on appeal in forma pauperis.

1

BACKGROUND

A criminal information charged Mr. Peters with kidnapping, attempted

criminal sexual penetration, criminal sexual penetration, and robbery. The jury

found him guilty of kidnapping and criminal sexual penetration, and he was

sentenced to ten years’ imprisonment. Mr. Peters has completed serving his

sentence and is currently incarcerated on subsequent sentences following

convictions in state and federal court for other sexual assaults, burglaries and

other crimes. See United States v. Peters, No. 96-2286, 1998 WL 17750 (10th

Cir. Jan. 20, 1998); State v. Peters, 944 P.2d 896 (N.M. Ct. App.), cert. denied,

942 P.2d 189 (N.M. 1997). 
-3-

DISCUSSION

While the district court did not address this issue, and the State has filed no

brief in this appeal, we have held that Maleng v. Cook, 490 U.S. 488, 491-92

(1989),

“precludes a defendant from challenging a fully-expired conviction

in isolation even though it may have potential collateral

consequences in some future case. Further, even if the fully-expired

conviction has, in fact, been used to enhance a subsequent sentence,

it may not be attacked directly in a habeas action. Rather the attack

must be directed toward the enhanced sentence under which the

defendant is in custody. However, if the attack is so directed, the

defendant may argue that his present sentence is improper because it

has been enhanced by a prior, unconstitutional conviction.”

Harvey v. Shillinger, 76 F.3d 1528, 1537 (10th Cir.), cert. denied, 117 S. Ct. 253

(1996) (quoting Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir. 1990)). In

pleadings submitted to the district court, Mr. Peters alleged that his current

sentences were enhanced because of his 1980 conviction. The State, in a pleading

submitted to the district court, apparently conceded that his sentence in state court

was enhanced because of the 1980 conviction. Response to Petitioner’s Statement

Regarding Requested Relief at 2, R. Vol. I, Tab 47. However, Mr. Peters does

not directly challenge his current sentence in his appeal. As we have held, a

petitioner claiming his current sentence was enhanced by a prior invalid

conviction “must show that ‘if he prevails in challenging his prior expired

conviction, the sentence that he is currently serving will be reduced.’” Harvey,
-4-

76 F.3d at 1537 (quoting Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992). 

Mr. Peters has made no such specific showing, and the record does not clarify

how his current sentences were calculated. Thus, we could hold that we lack

jurisdiction to hear this petition and dismiss it on that basis.

However, in light of Mr. Peters’ pro se status, the State’s concession of

some kind of enhancement, and the lack of clarity in the record, we alternatively

address the merits of his petition. Mr. Peters’ habeas petition raises the following

four issues: (1) whether his trial counsel in his 1980 trial was ineffective in

failing to object to the amendment of the original criminal complaint to conform

to the evidence; (2) whether his counsel was ineffective in failing to request, and

failing to object to the lack of, a limiting instruction relating to the introduction

of a prior conviction; (3) whether his appellate counsel was ineffective; and (4)

whether the district court erred in not holding an evidentiary hearing, appointing

counsel, and allowing discovery.

The district court, adopting the magistrate judge’s findings and

recommendation, rejected his first three arguments. We affirm, for substantially

the reasons set forth in the magistrate judge’s recommendation, as adopted by the

district court. However, we note, additionally, that Mr. Peters’ claim of

ineffectiveness and prejudice in his first issue, arising out of the amendment of
-5-

count 2 of the complaint filed against him, is further undermined by the fact that

he was acquitted of count 2. 

Mr. Peters claims the district court erred in failing to grant him an

evidentiary hearing, failing to appoint him counsel and failing to permit him to

conduct discovery. We find no error.

A federal district court is required to hold an evidentiary hearing in a

habeas case only when “the evidence sought to be introduced [is] material to the

issue in question and [was] inadequately developed in state court for reasons not

attributable to petitioner’s inexcusable neglect.” Dever v. Kansas State

Penitentiary, 36 F.3d 1531, 1536 (10th Cir. 1994). We review the denial of an

evidentiary hearing, if such a hearing is not mandatory, for abuse of discretion. 

Id. at 1535. We find no abuse in this case. Mr. Peters does not explain what

evidence or material disputed factual issues he believes would be illuminated by

an evidentiary hearing. His conclusory allegation of disputed facts or issues is

insufficient.

We also reject Mr. Peters’ argument that the district court erred in failing to

appoint him counsel. “[T]here is no constitutional right to counsel beyond the

appeal of a criminal conviction, and . . . generally appointment of counsel in a

§ 2254 proceeding is left to the court’s discretion.” Swazo v. Wyoming Dep’t of
-6-

Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). The

district court did not abuse its discretion in failing to appoint counsel in this case.

Finally, we reject Mr. Peters’ argument that the district court erred in not

granting him discovery. We review a district court’s discovery rulings for abuse

of discretion. Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1368 (10th Cir.

1997). We find no abuse here.

For the forgoing reasons, we DENY Mr. Peters’ request for a certificate of

appealability and DISMISS his appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge