### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk December 20, 1996
TO: All recipients of the captioned order and judgme nt RE: 96-1138, U.S. v. Fykes December 5, 1996
Please be advised of the following correction to th e captioned decision: The order and judgment is changed by deleting footn ote one on page two. The reference to a denial of the certificate of app ealability on the last page is also deleted, and the district court is affirmed on the merits. The corrected version of the order and judgment is attached. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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. ** After examining the briefs and the appellate rec ord, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL FYKES, Defendant-Appellant. No. 96-1138 (D.C. No. 95-M-3001) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges. **
Defendant-Appellant Michael Fykes appeals the distr ict court’s dismissal of his petition to vacate, set aside or correct his se ntence pursuant to 28 U.S.C. § 2255. The district court dismissed the petition as an abuse of the writ. For the following reasons, we now affirm the district court ’s order dismissing Fykes’s petition as an abuse of the writ.- 2 -

Fykes was convicted of conspiracy to distribute coc aine on December 4, 1992, and sentenced to 100 months in prison followe d by five years of supervised release. On direct appeal, Fykes argued that his c riminal history had been erroneously calculated as category IV due to the er roneous inclusion of a careless driving offense in that calculation. We affirmed t he sentence imposed by the district court, concluding that even without the po int charged for the careless driving offense Fykes’s criminal history placed himin category IV. United States v. Fykes , 19 F.3d 34 (Table), 1994 WL 97050 (10th Cir. Mar. 28, 1994) [Fykes I ]. However, we noted that “if the alleged error should affect Mr. Fykes criminal history category in the future, he may reargue the issue at that time.” Id. Subsequently, Fykes brought a habeas petition in wh ich he claimed that his trial counsel had provided ineffective assistance b y failing to ensure that two witnesses would be able to testify at trial. Unite d States v. Fykes , 53 F.3d 343 (Table), 1995 WL 265930 (10th Cir. May 8, 1995) [Fy kes II ]. On appeal, we affirmed the district court’s denial of that petiti on, finding that the testimony of the two witnesses would not have altered the outcom e of the trial. Id. at *2-*3. On June 22, 1995, Fykes brought a second habeas pet ition under 28 U.S.C. § 2255 which again challenged the district court’s assessm ent of his criminal history. (I R.O.A. Tab 2). Fykes did not appeal the district c ourt’s June 23, 1995 order dismissing that petition as an abuse of the writ. Id.1 Fykes filed his petition on December 5, 1995, and thus this case is not

affected by the successive petition provisions of AEDPA, 28 U.S.C. § 2244(b), which was signed into law on April 24, 1996. CompareHatch v. Oklahoma, 92 F.3d 1012, 1014 (10th Cir. 1996) (holding successive petition provisions applicable where application to file successive petition was filed after effective date of AEDPA); see alsoBradshaw v. Story , 86 F.3d. 164, 166 (10th Cir. 1996) (“A statute is effective upon the date of its enactment unless an express provision states otherwise.” (quotation omitted)). - 3 - This is Fykes’s third effort to win relief under 28 U.S.C. § 2255. 1 Fykes makes two arguments in the current petition. First , Fykes argues that a review of his criminal history calculation has revealed anoth er error by the trial court, in which a marijuana possession conviction for which F ykes paid a $258 fine was not treated as an exempt non-felony offense under U .S.S.G. § 4A1.2.(c)(1). Second, Fykes agues that his appellate counsel prov ided ineffective assistance by failing to argue that the marijuana conviction shou ld not have been included in the criminal history calculation. Fykes contends t hat we invited him to bring this petition by stating in our opinion on direct appeal that “if the alleged error should affect Mr. Fykes criminal history category in the f uture, he may reargue the issue at that time.” Fykes I , 1994 WL 97050. Fykes has misconstrued both the statement in our earlier opinion and the applicable doctrine of abuse of the writ. When we stated that Fykes was free to relitigate whether his careless driving conviction should be counted in his criminal history “in the future,” we meant only that should Fykes be convicted of another offense our prior decision would not collat erally estop him from making- 4 -

that argument at that time. We did not suggest that Fykes should continue to litigate this issue in connection with his present sentence. Moreover, the present petition is a patent abuse of the writ. Fykes challenged his sentence on direct appeal, and has h ad ample opportunity to challenge both his sentence and the effectiveness o f his trial and appellate counsel during his two previous habeas petitions. In fact, his direct appeal dealt specifically with sentencing issues, and his first habeas petition was based on an ineffective assistance claim. Accordingly, the dis trict court properly found an abuse of the writ in Fykes’s present attempt to rai se those claims in a third habeas petition. Cf. Rules Governing § 2254 Cases in the United States District Courts 9(b) (stating that finding of abuse of the writ may be found if petition does not allege new or different grounds for relief, or if n ew and different grounds for relief could have been raised in a previous petitio n). Further, Fykes has provided no explanation for his failure to include any of th e novel issues raised by the present petition in his previous petition. Thus, w e have no reason to find an exception to the abuse of the writ doctrine here. United States v. Richards , 5 F.3d 1369 (10th Cir. 1993) (holding that defendant must show “cause and prejudice” before exception to abuse of the writ will be found ).- 5 -

Accordingly, we AFFIRM the district court’s order d ismissing Fykes’s petition.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge