* Honorable John W. Lungstrum, District Judge, United States District

Court for the District of Kansas, sitting by designation.

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/25/96

TENTH CIRCUIT

RONALD RAY REID,

Petitioner-Appellant,

v.

STATE OF OKLAHOMA,

Respondent-Appellee.

No. 95-6458

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF W.D. Okla.

(D.C. No. CIV-95-1460-R)

Submitted on the briefs:

Ronald Ray Reid, pro se.

W.A. Drew Edmondson, Attorney General of Oklahoma, Patrick T. Crawley,

Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee. 

Before BALDOCK, BRISCOE, and LUNGSTRUM,*

 Circuit Judges.

BRISCOE, Circuit Judge.
1 After examining the briefs and appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument.

2 We refer herein to the rules and case law controlling abusive and

successive habeas petitions when the district court rendered its decision in

December 1995, several months before passage of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (1996). 

Cf. Hatch v. Oklahoma, 92 F.3d 1012, 1014 & n.2 (10th Cir. 1996)(applying

abusive/successive petition provisions of AEDPA to habeas petition filed two

months after passage). However, we would reach the same result under the even

more restrictive standards contained in Title I of the AEDPA.

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Petitioner Ronald Ray Reid appeals from a district court order dismissing

his petition for a writ of habeas corpus under 28 U.S.C. § 2254.1

 The district

court held the grounds raised were variously abusive or successive, found neither

cause nor miscarriage of justice to excuse their deficiency, and dismissed the

petition with prejudice pursuant to Rule 9(b) of the Rules Governing Section 2254

Cases and McClesky v. Zant, 499 U.S. 467 (1991).2

 We affirm.

I

In 1989, petitioner pled guilty in state court to numerous felony counts, for

which he was sentenced, in accordance with Oklahoma’s recidivist statutes, Okla.

Stat. Ann. tit. 21, §§ 51(B) (enhancement after former conviction of two prior

felonies), 54 (applying enhancement to foreign felonies), to concurrent terms of
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twenty-five years. The former felonies relied on were three convictions, also

obtained by plea, from Texas. The petition filed in this case challenged the

constitutionality of petitioner’s Oklahoma convictions/sentences on three grounds: 

(1) all of his pleas, in both Oklahoma and Texas, were unknowing and involuntary

due to the contemporaneous influence of the psychotropic medication Elavil;

(2) the Texas pleas were also undermined by the government’s breach of a plea

bargain on which they rested; and (3) his Oklahoma counsel rendered ineffective

assistance by stipulating to the prior Texas convictions without investigating their

constitutionality. See R. I doc 2, at 6-7.

As the district court noted, this is petitioner’s third attempt to secure habeas

relief since his 1989 conviction. His first petition, dismissed in Reid v. Kaiser,

No. CIV-92-76-R (W.D. Okla.), aff’d, No. 92-6151, 1992 WL 189110 (10th Cir.

Aug. 7, 1992), raised, without success, essentially the same ineffective assistance

claim summarized above. His second petition, dismissed in Reid v. Punches, No.

CIV-94-1996-R (W.D. Okla.), aff’d, No. 95-6221, 1995 WL 480313 (10th Cir.

Aug. 15, 1995), unsuccessfully challenged the denial of emergency time credits

under a statutory exclusion for § 51 habitual offenders, see Okla. Stat. Ann. tit.

57, § 573(3), claiming that the exclusion did not apply to recidivist sentences

based on foreign convictions.
3 We note, for example, that petitioner offers no explanation why the

lack of “clarity” and “rationality” allegedly caused by the Elavil only selectively

precluded his assertion of habeas claims.

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II

The district court dismissed petitioner’s claim for ineffective assistance of

Oklahoma trial counsel as plainly successive. We agree. The claim was both

asserted and rejected on the merits in Reid v. Kaiser, thereby fulfilling the

conditions for dismissability under Rule 9(b). See Watkins v. Champion, 39 F.3d

273, 275 (10th Cir. 1994). 

The district court dismissed as abusive petitioner’s claim regarding the

influence of Elavil on his various guilty pleas, because it was not included in his

first habeas petition. As cause for this omission, petitioner argues he “could not

raise this issue until he discontinued ingesting Elavil and started having clear and

rational thoughts in 1993.” Appellant’s Opening Brief filed February 23, 1996

(Op. Br.) at 45. 

Without implying any acceptance of petitioner’s dubious contention that his

use of Elavil provided a continuing exemption from the requirements of Rule

9(b),3 we note that such an excuse was no longer available when he filed his

second habeas petition in 1994. Petitioner does not address this obvious point,

evidently presuming that abuse-of-the-writ principles do not apply when one

habeas petition challenges execution of sentence and another the underlying
4 McGary has been followed in unpublished decisions by two other

circuits. See Fuller v. Baker, No. 94-3989, 1995 WL 390298, at **1-2 (6th Cir.

June 30, 1995); Hamm v. Murphy, No. 94-2175, 1995 WL 247338, at **2 (1st

Cir. Apr. 10, 1995).

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conviction or the imposition of sentence. Such distinctions are not made by Rule

9(b) or the relevant statutory provisions, 28 U.S.C. §§ 2244(b) & 2254, and

indeed have been rejected by other circuits, see McGary v. Scott,

4

 27 F.3d 181,

183 (5th Cir. 1994)(applying abuse-of-the-writ principles to consecutive habeas

petitions challenging conviction and deprivation of good time credit); see also

Goode v. Wainwright, 731 F.2d 1482, 1483-84 (11th Cir. 1984)(applying

abuse-of-the-writ principles to consecutive habeas petitions challenging capital

conviction and execution of death sentence). We embrace this sound authority

and, consequently, reject petitioner’s proffered excuse for twice omitting an

available challenge to the knowing and voluntary nature of his numerous guilty

pleas. 

The remaining infirmity alleged with respect to the predicate Texas

convictions originally involved only the breach of a plea bargain regarding

sentence, though petitioner later added inadequate plea advisement and counsel’s

failure to perfect an appeal. We agree with the district court that the operative

facts were plainly available to petitioner before he filed his first habeas petition

(and, a fortiori, before he filed the second). Contrary to petitioner’s suggestion,
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the fact that he subsequently obtained an evidentiary hearing on such matters in

Texas does not somehow negate their prior availability for purposes of Rule 9(b). 

Indeed, in support of his ineffective assistance argument, petitioner now asserts

that he raised such matters with Oklahoma counsel at the time of his plea in 1989. 

See Op. Br. at 31. 

Further, we find nothing in the record to implicate the “miscarriage of

justice” exception, which requires a claim of actual innocence regarding the

offense under review. See McClesky, 499 U.S. at 502; Murray v. Carrier, 477

U.S. 478, 495-96 (1986). Petitioner challenges his conviction and sentence in

Oklahoma, R. I doc.2, at 1-2, 6-7, yet he does not assert that he is innocent of the

felonies to which he pled guilty there. Instead, he asserts that he “is innocent of

the enhancement charge.” Op. Br. at 46 (emphasis added). The Oklahoma

habitual offender statute merely adds a noncapital enhancement to a sentence

imposed for an underlying felony conviction; it does not set out elements of an

independent criminal offense. See Simmons v. State, 549 P.2d 111, 117 (Okla.

Crim. App. 1976). Accordingly, because “[a] person cannot be actually innocent

of a noncapital sentence,” United States v. Richards, 5 F.3d 1369, 1371 (10th Cir

1993), petitioner’s challenge to his recidivist enhancement does not fall within the

potential scope of the miscarriage of justice exception.
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Finally, we must address a number of procedural matters raised in the

course of this proceeding. We grant petitioner’s motions to supplement the record

and to “File Amendment Interchanging New Case Authority,” but deny his

motions “to Compel.” As a court of review, we may examine additional

documents culled from the district court file and consider new legal authority, but

we may not enlarge the evidentiary record to include material unavailable to the

district court, much less compel discovery of such material from an opposing

party. We deny respondent’s request “to prohibit Petitioner from filing any

further Petitions asserting the same or similar allegations,” Brief of Appellee at 6,

as effectively mooted by § 106(b)(3) of the AEDPA, which now requires prior

appellate approval before any “second or successive [§ 2254] application” may be

filed in district court. As for respondent’s concomitant request for “any costs or

double costs that this Court deems apropos,” Brief of Appellee at 6, we consider a

double-cost award unwarranted, though we note that “[single] costs shall be taxed

against the [unsuccessful] appellant” as a matter of course under Fed. R.

App. P. 39(a). 

The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.