* Honorable John W. Lungstrum, District Judge, UnitedStates District

Court for the District of Kansas, sitting by design ation. 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, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

2 We refer herein to the rules and case law controlli ng abusive and successive habeas petitions when the district courtrendered its decision in December 1995, several months before passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-13 2, 110 Stat. 1214 (1996). Cf. Hatch v. Oklahoma , 92 F.3d 1012, 1014 & n.2 (10th Cir. 1996)(applyin g 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. -2- 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 abusiv e or successive, found neither cause nor miscarriage of justice to excuse their de ficiency, and dismissed the petition with prejudice pursuant to Rule 9(b) of th e Rules Governing Section 2254 Cases and McClesky v. Zant , 499 U.S. 467 (1991). 2We affirm.

I In 1989, petitioner pled guilty in state court to n umerous felony counts, for which he was sentenced, in accordance with Oklahoma ’s recidivist statutes, Okla. Stat. Ann. tit. 21, §§ 51(B) (enhancement after for mer conviction of two prior felonies), 54 (applying enhancement to foreign felo nies), to concurrent terms of-3-

twenty-five years. The former felonies relied on w ere three convictions, also obtained by plea, from Texas. The petition filed i n this case challenged the constitutionality of petitioner’s Oklahoma convicti ons/sentences on three grounds: (1) all of his pleas, in both Oklahoma and Texas, w ere unknowing and involuntary due to the contemporaneous influence of the psychotropic medication Elavil; (2) the Texas pleas were also undermined by the gov ernment’s breach of a plea bargain on which they rested; and (3) his Oklahoma counsel rendered ineffective assistance by stipulating to the prior Texas convic tions 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 petiti on, 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, essentiallythe same ineffective assistance claim summarized above. His second petition, dismi ssed 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 denia l of emergency time credits under a statutory exclusion for § 51 habitual offen ders, 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 exp lanation why the

lack of “clarity” and “rationality” allegedly cause d by the Elavil only selectively precluded his assertion of habeas claims. -4- II The district court dismissed petitioner’s claim forineffective assistance of Oklahoma trial counsel as plainly successive. We a gree. The claim was both asserted and rejected on the merits in Reid v. Kais er , 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, be cause 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 El avil and started having clear and rational thoughts in 1993.” Appellant’s Opening Br ief filed February 23, 1996 (Op. Br.) at 45. Without implying any acceptance of petitioner’s dub ious 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 availabl e when he filed his second habeas petition in 1994. Petitioner does no t address this obvious point, evidently presuming that abuse-of-the-writ principl es do not apply when one habeas petition challenges execution of sentence an d another the underlying4 McGaryhas 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). -5- conviction or the imposition of sentence. Such dis tinctions 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 , 427 F.3d 181, 183 (5th Cir. 1994)(applying abuse-of-the-writ prin ciples 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 em brace this sound authority and, consequently, reject petitioner’s proffered ex cuse 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 di strict court that the operative facts were plainly available to petitioner before h e filed his first habeas petition (and, a fortiori, before he filed the second). Con trary to petitioner’s suggestion,-6-

the fact that he subsequently obtained an evidentia ry hearing on such matters in Texas does not somehow negate their prior availabil ity for purposes of Rule 9(b). Indeed, in support of his ineffective assistance ar gument, 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 actua l 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, h e 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 doe s 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] personcannot be actually innocent of a noncapital sentence,” United States v. Richard s , 5 F.3d 1369, 1371 (10th Cir 1993), petitioner’s challenge to his recidivist enh ancement does not fall within the potential scope of the miscarriage of justice excep tion.-7-

Finally, we must address a number of procedural matters raised in the course of this proceeding. We grant petitioner’s m otions to supplement the record and to “File Amendment Interchanging New Case Autho rity,” but deny his motions “to Compel.” As a court of review, we may examine additional documents culled from the district court file and c onsider new legal authority, but we may not enlarge the evidentiary record to includ e material unavailable to the district court, much less compel discovery of such material from an opposing party. We deny respondent’s request “to prohibit P etitioner from filing any further Petitions asserting the same or similar all egations,” 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 conco mitant 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 o f course under Fed. R. App. P. 39(a). The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.