* This order and judgment is not binding precedent, e xcept under the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

** Honorable Robin J. Cauthron, District Judge, UnitedStates District Court for the Western District of Oklahoma, sitting by de signation. 

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

### MAR 3 1997 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. FRANK DENNIS FELIX,

Defendant-Appellee. No. 96-7061 (D.C. No. CV-95-284-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY and KELLY, Circuit Judges, and CAUTHR ON, ** District Judge.

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-

Defendant appeals the district court’s denial of hi s 28 U.S.C. § 2255 motion challenging drug trafficking convictions he suffered in the Eastern District of Oklahoma. In denying relief, the district courtheld that nine of defendant’s ten § 2255 claims were procedurally barred because he failed to raise them on direct appeal. Defendant argues that the district court erred in ruling that he could have previously raised his claims alleging: 1) two government witnesses perjured themselves, one at the suppression hearing and one at trial; 2) the government breached its agreement to support defend ant’s Fed. R. Crim. P. 35(b) motion to reduce his sentence; and 3) the government failed to disclose its theory that defendant’s conduct was part of a single consp iracy. Defendant also challenges the district court’s refusal to conduct an evidentiary hearing. Determining first whether defendant’s allegations, if true, would entitle him to relief and, if so, whether the district court then abused its discretion in refusing to conduct a hearing, United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996), we affirm. A defendant raising an issue for the first time in a § 2255 motion must show cause for not raising the issue on direct appe al and actual prejudice resulting from the errors alleged, or he must show that a fundamental miscarriage of justice would result if his claim is not address ed. See United States v. Riddick , No. 96-3165, 1997 WL 18969, at *1 n.1 (10th Cir. Jan. 21, 1997) (to be reported1 Because defendant filed his notice of appeal prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (Act) , we apply pre-Act law addressing procedural defaults. See Reid v. Oklahoma , 101 F.3d 628, 629 & n.2 (10th Cir. 1996) (28 U.S.C. § 2254 proceeding); see also Lopez , 100 F.3d at 117 (in § 2255 proceeding, where defendant filed notice of appeal prior to Act’s enactment, this court, without discussion, applied pre-Act law addressing procedural defaults). We would reach the same resu lt here were we to apply the Act’s more restrictive procedural standards. See Reid , 101 F.3d at 629 n.2. -3- at 104 F.3d 1239) (citing United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994)) 1 . Because he does not allege that he is actually i nnocent of the offenses for which he was convicted, see Schlup v. Delo , 513 U.S. 298, 115 S. Ct. 851, 867 (1995), the question presented is whether defen dant has made a sufficient showing of cause and prejudice to excuse his proced ural default. Defendant first argues that an agent of the Drug En forcement Administration committed perjury by denying, at the suppression hearing, that agents fired their weapons during the raid of a methamphetamine lab near Beggs, Oklahoma. Defendant asserts that he could not have raised this issue on direct appeal because it is based upon newly discovered ev idence that was previously unavailable. See McCleskey v. Zant , 499 U.S. 467, 494 (1991). The affidavits of defendant and his coconspirators, asserting that th ey heard gunfire at the time of the raid, however, cannot be considered newly disco vered evidence. Id. at 498- 500. Further, defendant asserts no reason why, thr ough the exercise of due diligence, he could not have discovered, at the tim e of trial, the information now-4-

proffered in the affidavits of the two law enforcem ent officers. See id. at 498. The district court, therefore, did not err in deter mining that this claim was procedurally barred. Defendant next argues that the government’s informant committed perjury during his trial testimony. In support of this cla im, defendant submits the affidavit of an inmate he met subsequent to his dir ect appeal, who contends that several of the informant’s statements made at trial were false. Assuming this evidence was unavailable at the time of defendant’s trial or direct appeal, and was, therefore, sufficient to establish cause, defe ndant has, nonetheless, failed to establish actual prejudice resulting from the alleg ed perjury. See United States v. Frady , 456 U.S. 152, 168 (1982). None of the allegedly false statements were material to the issue of his guilt or innocence andwould have been merely cumulative evidence indirectly challenging the info rmant’s credibility. See United States v. Johnson , 621 F.2d 1073, 1075 (10th Cir. 1980) (new trial w as not required where alleged perjury went only peripheral ly, if at all, to substantive issues and where new evidence did not directly impe ach witness’s testimony on any substantive issues). Defendant next argues that the government breached its agreement to provide testimony in support of defendant’s motion to reduce his sentence. See Fed. R. Crim. P. 35(b) (subsequently amended, but s till applicable to offenses-5-

committed prior to Nov. 1, 1987). Defendant assert s that this claim is not procedurally barred because he timely filed his Rul e 35(b) motion after the completion of his direct appeal. The government ar gues, for the first time on appeal, that this claim is, nonetheless, barred bec ause defendant failed to raise the issue of the government’s breach in the Rule 35 pro ceeding. We need not address these procedural issues, however, because defendantwould not be entitled to relief on the merits of this claim in any event. S ee United States v. Wright , 43 F.3d 491, 496 (10th Cir. 1994) (appellate court nee d not address procedural default, in § 2255 action, where claim fails on mer its); see generallyUnited States v Deninno , 103 F.3d 82, 85 n.2 (10th Cir. 1996) (appellate c ourt is free to affirm on any ground supported by record). The record indicates that the government did offer to provide testimony in support of defendant’s Rule 35(b) motion, in exchan ge for both information implicating one of his coconspirators and the dismi ssal of his direct appeal. II Appellant’s App. at 523-24. Defendant, however, re fused to dismiss his appeal. Id. at 523. Although defendant asserts that he, nonetheless, provided information with the expectation that the government would supp ort his Rule 35 motion, he fails to assert any reason why his expectation was reasonable under the circumstances. Because the record, therefore, does not evince the existence of any agreement between defendant and the government, this claim lacks merit.-6-

See Bischel v. United States , 32 F.3d 259, 264 (7th Cir. 1994) (“mere allegatio n of an ‘understanding’ or ‘promise’ without some doc umentation or statement in the court record is insufficient to merit an evidentiary hearing much less a Rule 35 hearing”). Finally, defendant argues that the government, in v iolation of Brady v. Maryland , 373 U.S. 83 (1963), failed to disclose evidence that defendant engaged in only one drug trafficking conspiracy. There is no indication in the record, however, that defendant was ever charged with invol vement in more than one conspiracy. Because defendant has failed to establish that he m ight be entitled to relief on any of these claims, as alleged, the district co urt did not abuse its discretion in refusing to conduct an evidentiary hearing. Lopez , 100 F.3d at 121. The judgment of the United States District Court for th e Eastern District of Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge