*This order and judgment is not binding precedent, except under the doctrines of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

JAN 29 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY DEWAYNE HISHAW,

Defendant - Appellant.

No. 02-6244

D.C. No. CIV-02-806-A and

CR-98-128-A

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.
-2-

Defendant Anthony Dewayne Hishaw seeks a certificate of appealability (COA) to

appeal the federal district court’s denial of his 28 U.S.C. § 2255 motion for relief from

sentence. Because he has failed to make a “substantial showing of the denial of a

constitutional right,” as required by U.S.C. § 2253(c)(2), we deny his request for a COA

and dismiss the appeal.

Hishaw was convicted of possession with intent to distribute crack cocaine, in

violation of 21 U.S.C. § 841(a)(1), and was sentenced to 360 months’ imprisonment. He

was also convicted of knowingly possessing a handgun after a felony conviction, in

violation of 18 U.S.C. § 922(g)(1), and sentenced to a concurrent 120-month sentence. 

On direct appeal, Hishaw contended (1) the district court erred in denying his motion to

suppress evidence; (2) the evidence was insufficient to support his § 922(g)(1)

conviction; (3) the government failed to prove the quantity of cocaine, as required by

Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) at sentencing, the district court

relied on drug transactions for which he was not convicted. His conviction under

§ 922(g)(1) was reversed, but his conviction and sentence for violation of § 841(a)(1)

were affirmed on appeal. See United States v. Hishaw, 235 F.3d 565 (10th Cir. 2000). 

He did not file a petition for rehearing with this court. His petition for writ of certiorari

with the Supreme Court was denied. See Hishaw v. United States, 522 U.S. 908 (2001).

Hishaw filed the present § 2255 habeas petition on June 11, 2002, asserting (1) the

Tenth Circuit erred in its application of Apprendi; (2) the Tenth Circuit’s refusal to
-3-

suppress evidence from the warrantless search conflicted with the law; and (3)

fundamental fairness required that he receive a new trial on the § 841(a)(1) charge. The

district court determined that Hishaw was seeking collateral relief based on issues similar

to those raised in his direct appeal, and that it is not the district court’s role to serve as an

appellate court to review errors which allegedly occurred in the Tenth Circuit’s prior

ruling. The district court denied relief, concluding it could not revisit issues previously

decided absent an intervening change in the law. United States v. Warner, 23 F.3d 287,

291 (10th Cir. 1994). In his brief on appeal, Hishaw contends this court and the district

court should have applied Apprendi to require resentencing. Specifically, Hishaw argues

his sentence should be based upon drug amounts proven before the jury and amounts

included in sentence calculations as relevant conduct should not have been considered. 

Hishaw also contends that fundamental fairness requires that he receive a new trial on the

sole count for which he remains convicted. As regards this second issue, Hishaw asserts

he would not have admitted that he committed the crime for which he stands convicted

had the Apprendi decision pre-dated his trial.

We agree with the district court’s determination that Hishaw’s contentions

regarding his sentence are reassertions of the arguments raised and addressed in his direct

appeal. Further, the district court correctly concluded that we cannot expand § 2255 to

require a new trial where no violation of the Constitution or laws of the United States has

been shown. 
-4-

The application for a COA is DENIED and the appeal is DISMISSED. The

mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge