* This order and judgment is not binding precedent, except under the doctrines of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, 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.1 The district court denied Mr. Peters’ request for a certificate of appealability, but

granted his motion to proceed on appeal in forma pauperisand ordered payment of a $5.00 filing fee. Because this is a habeas proceeding, the Prison Litigation Reform Act does not apply. SeeUnited States v. Simmonds , 111 F.3d 737, 743 (10th Cir. 1997). Mr. Peters filed an in forma pauperismotion with this court. -2- Calvin Dean Peters, proceeding pro se, seeks a cert ificate 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 convictio n for kidnapping and criminal sexual penetration. We deny his request for a cert ificate 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 kidn apping, attempted criminal sexual penetration, criminal sexual penetr ation, and robbery. The jury found him guilty of kidnapping and criminal sexual penetration, and he was sentenced to ten years’ imprisonment. Mr. Peters h as completed serving his sentence and is currently incarcerated on subsequent sentences following convictions in state and federal court for other se xual 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. C ook , 490 U.S. 488, 491-92 (1989), “precludes a defendant from challenging a fully-exp ired conviction in isolation even though it may have potential coll ateral consequences in some future case. Further, even if the fully-expired conviction has, in fact, been used to enhance a sub sequent sentence, it may not be attacked directly in a habeas action. Rather the attack must be directed toward the enhanced sentence underwhich 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 conv iction.” 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. Pete rs alleged that his current sentences were enhanced because of his 1980 convict ion. The State, in a pleading submitted to the district court, apparently concede d that his sentence in state court was enhanced because of the 1980 conviction. Respo nse 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 enhanc ed by a prior invalid conviction “must show that ‘if he prevails in chall enging his prior expired conviction, the sentence that he is currently servi ng 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, w e could hold that we lack jurisdiction to hear this petition and dismiss it o n 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 i n 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 ineffe ctive in failing to request, and failing to object to the lack of, a limiting instru ction relating to the introduction of a prior conviction; (3) whether his appellate co unsel 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 rec ommendation, as adopted by the district court. However, we note, additionally, th at Mr. Peters’ claim of ineffectiveness and prejudice in his first issue, a rising out of the amendment of-5-

count 2 of the complaint filed against him, is furt her undermined by the fact that he was acquitted of count 2. Mr. Peters claims the district court erred in faili ng 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 evi dentiary hearing in a habeas case only when “the evidence sought to be in troduced [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 t he 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. Pete rs does not explain what evidence or material disputed factual issues he bel ieves 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 distri ct court erred in failing to appoint him counsel. “[T]here is no constitutional right to counsel beyond the appeal of a criminal conviction, and . . . generall y 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 fail ing to appoint counsel in this case. Finally, we reject Mr. Peters’ argument that the di strict 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’ reque st for a certificate of appealability and DISMISS his appeal.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge