* This order and judgment is not binding precedent, e xcept under the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

### JUN 18 1997 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CHARLES EDWIN NOTTINGHAM,

Defendant-Appellant. No. 96-5048 (D.C. No. 95-C-97-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL, HENRY, 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. Charles Edwin Nottingham appeals the district court ’s denial of 1) his amended motion and supplement to vacate, set aside, or correct his sentence-2-

pursuant to 28 U.S.C. § 2255, 2) his motion to allo w discovery on his claims, and 3) his request for leave to further amend his § 225 5 motion. He also contends the district court erred in failing to hold a hearing o n his claims. We review the district court’s legal conclusions de novo and its findings of fact under a clearly erroneous standard. SeeUnited States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). We review its decisions to deny discovery and leave to amend, and its failure to hold a hearing, for abuse of discretion. See Hom v. Squire , 81 F.3d 969, 973 (10th Cir. 1996) (leave to amend); United States v. Davis , 60 F.3d 1479, 1483 (10th Cir. 1995) (hearing); Watts v. United States , 841 F.2d 275, 277 (9th Cir. 1988) (discovery). After careful review of the record on appeal, together with the arguments of the parties and the applicable law, we conclude that the district court correctly ruled that petitioner’s habeas claims are barred, e ither because they were ruled upon on in petitioner’s direct appeal, United State s v. Johnson , 4 F.3d 904 (10th Cir. 1993), or because petitioner failed to raise those claims on direct appeal. Further, we agree with the district court’s rejecti on of petitioner’s ineffective assistance of counsel claims and its ultimate concl usion that petitioner has not demonstrated cause and prejudice or a fundamental m iscarriage of justice necessary to allow appellate review of the otherwis e barred claims. See Cox , 83 F.3d at 341. Therefore, for substantially the s ame reasons contained in the-3-

district court’s order dated January 17, 1996, the district court’s judgment on petitioner’s habeas claims, including his claims of ineffective assistance of trial counsel, is affirmed. Petitioner also challenges the district court’s den ials of his requests for counsel, discovery, and a hearing. Because we conc lude that the district court properly dismissed petitioner’s substantive claims as barred, it did not abuse its discretion in denying these requests. Finally, pet itioner contends that the district court erred in denying him leave to amend his § 225 5 motion to add three claims. We agree with the district court that petitioner ha d ample opportunity to develop his habeas claims through prior amendment. See Foman v. Davis , 371 U.S. 178, 182 (1962). Further, after reviewing the proposed additional claims, we agree with appellee that these claims would also be barre d. Therefore, amendment to include them would have been futile, see Hom , 81 F.3d at 973, and the district court did not abuse its discretion in denying petit ioner leave to amend. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court
Michael R. Murphy Circuit Judge