* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. PUBLISH UNITED STATES COURT OF APPEALS Filed 11/5/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE LOPEZ, Defendant - Appellant. No. 96-4046

Appeal from the United States District Court

for the District of Utah (D.C. No. 95-CV-805)

Submitted on the briefs: * Scott M. Matheson, Jr., United States Attorney and Richard D. McKelvie, Assistant United States Attorney, Salt Lake City, U tah, for the Plaintiff - Appellee. Jorge Lopez, pro se.

Before SEYMOUR , KELLY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.-2-

Sentenced for conspiracy to possess with intent to distribute cocaine and to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846, an d for conspiracy to possess with intent to distribute cocaine and to distribute cocaine within 1000 feet of a school, 21 U.S.C. §§ 846, 860(a), Jorge Lopez appea ls the district court’s denial of his motion for relief under 28 U.S.C. § 2255. H e raises four issues: first, that his counsel was constitutionally deficient for fail ing to advise Lopez to appeal and for failing to file a Rule 29 motion to acquit for insufficiency of the evidence; second, that the trial court violated his due proce ss rights by not fully advising him of his right to appeal; third, that the trial c ourt erred in denying a motion to sever his trial proceedings from those of a co-cons pirator, Robert Mitchell; fourth, that the evidence establishing his base off ense level was hearsay. We construe these last two claims broadly to allege vi olations of the petitioner’s right to due process.
I We first consider whether the Antiterrorism and Eff ective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), bars Lopez from bringing this § 2255 motion or requires him to obtain a certificate of appealability. See 28 U.S.C. § 2253(c), 2255. Section 2255, as revis ed by the Act, precludes the filing of a § 2255 motion more t han one year after conviction, as is the case here. 28 U.S.C. § 2255 (as amended by 110 Stat. 1214, 1220 (Apr.1 Section 2255 states certain exceptions for which the one-year period of limitation

may not begin to run until a date after conviction. 28 U.S.C. § 2255. There is no indication that any such exception applies in this case.

2Before April 24, 1996, it was not necessary for a § 2255 movant to obtain a certificate of appealability in order to appeal the denial of his motion. However, § 102 of the Act added 28 § 2253(c), which provides: (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—

. . . (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
110 Stat. 1217. -3- 24, 1996)). 1 Prior to this amendment, a party could bring a § 2255 motion at any time. Id. Section 2253(c)(2), as revised by the Act, requir es a § 2255 movant who appeals a denial of his motion by the district court to obtain a certificate of appealability from the court of appeals by making a“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). 2 Lopez filed a notice of appeal with this court on February 8, 1996, before the effective date of the Act, but no briefs were filed until May 7, after the Actbecame effective. We decide that neither provision applies to this ap peal. “If Congress does not prescribe the scope of a statute, we apply inte rvening civil legislation to pending cases unless it would operate retroactively .” Lennox v. Evans , 87 F.3d 431, 432 (10th Cir. 1996), citing Landgraf v. USI Film Prods. , 114 S. Ct. 1483,-4-

1505 (1994). The Act does not contain clear langua ge requiring retroactive application of provisions affecting § 2255 motions. We thus look to whether application of the amended statute to defendant’s appeal would have retroactive effect, that is “whether it would impair rights a p arty possessed when he acted, increase a party’s liability for past conduct, or i mpose new duties with respect to transactions already completed.” Landgraf , 511 U.S. at 1505. In essence, the test is whether “the new provision attaches new legal co nsequences to events completed before its enactment.” Id. at 1499. We conclude that both the time limitation to bring a § 2255 motion and the certifi cate of appealability requirement of § 2253(c)(1)(B) have such effects, a nd accordingly do not apply them to this case. With respect to the one-year limitation period, the act of filing a § 2255 motion more than one year after conviction now has an entirely new legal consequence. Previously such a motion would have b een considered on the merits. Now, the statute bars judicial considerati on. We agree with the Seventh Circuit that retroactive application of the one-yea r requirement would therefore be inconsistent with Landgraf. Herrera v. United States , No. 96-1778, 1996 WL 536913, *1 (7th Cir. Sept. 23, 1996) (Act not appli ed to bar appeals properly filed before its enactment); see also Reyes v. Keane , 90 F.3d 676, 679 (2d Cir. 1996)-5-

(finding application of Act’s one-year limitation t o pending § 2254 habeas action “entirely unfair and a severe instance of retroacti vity.”). We conclude also that the amended § 2253(c) should not be applied to a § 2255 appeal filed before the Act’s effective date. Before April 24, filing a notice of appeal was all that was required of a defendant appealing the denial of his § 2255 motion. After that date, that same act no lon ger has the same legal consequence—a substantial showing of a denial of a constitutional right is required in order to perfect the appeal. This chan ge indicates that we should not impose § 2253(c) on already pending § 2255 cases. See Landgraf , 114 S. Ct. at 1502 n.29 (applicability of new procedural provisio n depends on the posture of the particular case); United States v. Ruth , No. 96-3140, slip op. at 2 n.1 (10th Cir. Nov. 5, 1996) (Act does not call for dismissal of § 2255 appeals properly filed before its enactment); Herrera , 1996 WL 536913 at *1 (pre-Act filing of notice of appeal suffices to place § 2255 case befo re court of appeals, and Act does not alter the effect of procedural steps compl eted before its enactment); Martin v. United States , 1996 WL 528816, *1 (7th Cir. Sept. 4, 1996) (same result where prisoner handed prison official notice of app eal before enactment but not received by court until after enactment); cf. Landgraf , 114 S. Ct. at 1502 n.29 (“A new rule concerning the filing of complaints would not govern an action in which the complaint had already been filed under the old regime . . . .”); Thye v. United3 In Lennox, this Court held that the certificate requirements of § 2253(c)(2) will be

applied to pending habeas petitions brought pursuant to 28 U.S.C. § 2254, because no new legal consequences resulted from the application of § 2253(c)(2) to pending § 2254 cases. Lennox , 87 F.3d at 434-35. Section § 2255 petitioners, however, were not previously required to obtain a certificate of probable cause, so Lennoxdoes not control our decision in this case. Indeed, the Lennoxcourt explicitly reserved the question of whether the amended § 2253(c)(2) has a retroactive effect on § 2255 petition. Lennox , 87 F.3d at 434 n.2. -6- States , 1996 WL 539132, *1 (2d Cir. Sept. 24, 1996) (§ 22 53(c) not applied to § 2255 appeals properly filed and fully briefed befor e Act’s effective date). 3
II Although Lopez’s motion is not barred under the Act , we almost always decline to hear collateral attacks for which the de fendant has shown no cause and resulting prejudice for his failure to raise the is sue at sentencing and on direct appeal. United States v. Frady , 456 U.S. 152, 167-68 (1982); United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994). One exception to this rule involves ineffectiveness of counsel claims, which need not b e raised on direct appeal. United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc). L opez could have raised his due process claims on direct appeal, but he alleges that his failure to appeal was caused by ineffectiveness of counsel. To the extent that his ineffectiveness of counsel claims have merit, they may constitute cause for failing to raise the due process claims earlier. See Medina v. Barnes , 71 F.3d 363, 370 (10th Cir. 1995) (ineffectiveness of counsel can es tablish cause excusing-7-

procedural bar). We therefore turn first to the me rits of his ineffectiveness of counsel claims.
III Appellant cites two allegedly deficient aspects of counsel’s representation: first, that counsel inadequately advised him as to the advantages and disadvantages of waiving an appeal; second, that co unsel did not file a Rule 29 motion, under Fed. R. Crim. P. 29, to acquit for in sufficiency of the evidence. To demonstrate ineffectiveness of counsel, the defenda nt must generally show that counsel’s performance fell below an objective stand ard of reasonableness, and that counsel’s deficient performance was prejudicia l. Strickland v. Washington , 466 U.S. 668, 687, 690 (1984). We review claims of ineffective assistance de novo. Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied , 116 S. Ct. 936 (1996).
A We consider first whether defendant’s counsel was d eficient for failing to file a Rule 29 motion. In reviewing a conviction f or sufficiency of the evidence, we review the record de novo to determine whether “ taking the evidence—both direct and circumstantial, together with the reason able inferences to be drawn therefrom—in the light most favorable to the govern ment, a reasonable jury could find the defendant guilty beyond a reasonable doubt .” United States v. Urena , 274 We need not resolve the question of whether the evidence was sufficient to earn

the defendant an enhancement of his sentence for the violation of 21 U.S.C. § 860 that might result from his co-conspirator’s house being within 1000 feet of a school. Although the record before us shows that defendant was indicted for and convicted of a single count that listed both 21 U.S.C. §§ 841(a)(1) and 860, it does not reveal the precise grounds on which the trial court established the defendant’s sentence. We do know, however, that defendant’s base offense level was determined to be 34, adjusted downward two levels for the acceptance of responsibility, resulting in a final sentence of 151 months. That determination would be sustained on a violation of § 841(a)(1) alone. Thus the defendant has not established that his counsel’s failure to raise a Rule 29 challenge to the § 860 penalty enhancement prejudiced him in any way. In the absence of such a showing, a Stricklandchallenge based on defendant’s conviction under § 860 must fail. We therefore confine our analysis to the sufficiency of the evidence for a conviction under 21 U.S.C. §§ 841(a)(1), 846. -8- F.3d 1487, 1489 (10th Cir.) (quotation omitted), ce rt. denied , 115 S. Ct. 455 (1994). “We reverse only if no rational trier of f act could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Wacker , 72 F.3d 1453, 1462-63 (10th Cir. 1995), cert. den ied , 1996 WL 337194 (U.S. Oct. 7, 1996). Reviewing the extensive record in this case under t his highly deferential standard, we conclude that the evidence against the defendant—both direct and circumstantial—was sufficient to establish all elem ents of conspiracy to possess with intent to distribute and to distribute cocaine . 21 U.S.C. §§ 841(a)(1), 846. 4 To prove a violation of 21 U.S.C. §§ 841(a)(1) and 846, the government must present evidence sufficient to establish four eleme nts: “(1) agreement with another person to violate the law; (2) knowledge of the essential objectives of the-9-

conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators.” United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995) (quotation omitted). Defendant al leges that the second, third, and fourth elements were not established in this ca se because he had no direct knowledge of his alleged co-conspirator’s extensive distribution operations in Utah. We cannot agree that a rational trier of fact could not have found these elements proven beyond a reasonable doubt. Defenda nt supplied his coconspirator, Robert Mitchell, with large quantities of cocaine over an extended period. He was introduced to several of Mitchell’s distributors. “By participating in purchases of large quantities of drugs . . . [d] efendant[] necessarily had knowledge of participation in a greater scheme.” I d. at 432. The government need not establish that Lopez knew the identities o f all participants, or the precise nature of their participation. See id. Rather, it must show, as it did in this case, an “ongoing course of conduct between Defendants in order to achieve a common goal or purpose . . . to profit from the illicit di stribution of cocaine.” Id. at 431. In the circumstances of this case, the defendant ca nnot show the requisite “reasonable probability” that but for the failure t o bring a Rule 29 motion, the result of the proceeding would have been different. Strickland , 466 U.S. at 694.
B5Defendant received the assistance of two defense attorneys, Benjamin Sanchez,

Esq., of San Diego, and Earl Xiaz, Esq., of Salt Lake City. According to the defendant, his trial attorney Mr. Sanchez advised him not to appeal. Mr. Sanchez’s representation of the defendant, however, appears to have ended before the trial court advised the defendant of his right to appeal. At that time, Mr. Xiaz was representing the defendant. Mr. Xiaz indicated that he had discussed the possibility of an appeal with the defendant, but had not spoken with Mr. Sanchez. Mr. Xiaz also told the court that defendant understood he had the right to appeal, but would choose not to exercise that right. Construing his motion broadly, we understand Lopez to allege that his attorney during the time when he might have filed an appeal was Mr. Xiaz, and that the latter was unfamiliar with the substance of the preceding trial and consequently ignorant of any grounds for appeal. -10- We next consider defendant’s claim that counsel’s a ssistance regarding an appeal was deficient. Lopez alleges that his couns el was ignorant of whether there were any grounds for appeal. 5 He further alleges that his counsel failed to inform him that not appealing would prevent him fro m raising meritorious issues not presented on appeal. The district court refuse d to grant defendant an evidentiary hearing in which to prove these allegat ions. In response to a § 2255 motion, the district court “must hold an evidentiary hearing on the prisoner’s claims “[u]nless the motion and files and records o f the case conclusively show that the prisoner is entitled to no relief.” Gallo way , 56 F.3d at 1240 n. 1 (quoting 28 U.S.C. § 2255). We must first decide whether th e defendant’s allegations, if proved, would entitle him to relief, and if so, whe ther the district’s court’s denial of an evidentiary hearing was an abuse of discretio n. Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).6Defendant has not explained in detail the interaction between himself and Mr.

Sanchez. The facts alleged by the defendant are entirely consistent with Mr. Sanchez exercising his considered judgment that there were no meritorious grounds for appeal, and advising the defendant accordingly. Consequently, unless Mr. Sanchez was deficient in his advice, defendant has not pleaded sufficient facts to state a claim under Strickland

. -11- Mr. Sanchez’s alleged failure to advise the defenda nt as to the preclusive effect of waiving an appeal is insufficient grounds on which to state a claim under Strickland . It is true that defense counsel must explain the advantages and disadvantages of an appeal. Baker v. Kaiser , 929 F.2d 1495, 1499 (10th Cir. 1991). However, if counsel reasonably believes that there are no meritorious grounds for an appeal, advises a defendant not to appeal on that basis, further advises him that he has a right to appeal regardles s, and then acts in accordance with defendant’s decision to waive an appeal, his p erformance cannot be considered deficient. 6 By itself, counsel’s failure to explain that a wa iver of meritless grounds for appeal will preclude the late r raising of those same meritless claims is not constitutionally defective assistance of counsel. We conclude that counsel in this case did not unrea sonably overlook meritorious grounds for appeal. There is no indication that defendant’s three collateral claims would have prevailed on direct ap peal. First, defendant contends that the trial court denied him due process by fail ing to instruct him adequately of his right to appeal his conviction. The record mak es clear, however, that the trial court acted in accordance with Rule 32(c)(5) of the Federal Rules of Criminal-12-

Procedure. The defendant confirmed to the trial co urt that he understood he had the right to appeal, regardless of the advice of co unsel. Second, there is nothing in the record to suggest t he trial court abused its discretion in denying Lopez’s motion for severance. See Wacker , 72 F.3d at 1468 (denial of motion to sever reviewed for abuse of di scretion). To meet the “heavy burden” required to prevail on a severance motion, “defendant must demonstrate actual prejudice [from the failure to sever] and no t merely a negative spill-over effect from damaging evidence presented against cod efendants.” Id. ; see also Zafiro v. United States , 506 U.S. 534, 539 (1993) (district court should g rant severance under Rule 14 only where there is serious risk that joint trial would compromise a specific trial right of one defendant or prevent jury from making reliable judgment about guilt or innocence). The d efendant has pointed to no facts from which an appeals court could infer actua l prejudice. Indeed, his claim appears to be nothing more than a restatement of hi s previously rejected argument that the evidence against him was insufficient to s upport a conviction. Mindful of the recognized value of joint trials for defendants indicted together, see Richardson v. Marsh , 481 U.S. 200, 210 (1987), as well as the districtcourt’s cautionary instructions to the jury on the individu ality of guilt, see Zafiro , 506 U.S. at 541, we decide that the trial court had dis cretion to conclude that the7Defendant also contends that he should have been sentenced at the lower end of

the guideline range. He asserts that no reason was given for imposition of sentence at the upper end of the applicable range, and further that “there was no reason” to support such a sentence. Appellant’s Br. at 3k. A sentencing court is obligated to state its reasons for fixing a particular sentence within the applicable guideline range whenever that range exceeds 24 months. 18 § U.S.C. 3553(c)(1). Without the sentencing transcript, which is not contained in the record before us, we do not know if the court met the requirements of § 3553(c)(1). However, defendant’s claim is not a direct appeal. We therefore conclude that defendant has not shown that he was prejudiced by the failure to challenge this purported violation of § 3553(c)(1). In determining where to fix a sentence within the applicable guideline range, a district court may consider “without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” USSG § 1B1.4. In light of this expansive discretion, defendant’s conclusory statement that “no reason . . . supports” his particular sentence, Appellant’s Br. at 3k, does not show with “reasonable probability” that the result of his sentencing procedure would have been different had his attorney challenged the purported violation of § 3553(c)(1), Strickland , 466 U.S. at 694. -13- insignificant risk of prejudice present in this cas e was outweighed by the benefit of a single trial. Finally, defendant’s contention that the sentencing court miscalculated the amount of drugs attributable to him would not have availed him on direct appeal. 7 Although the government has the burden of proving d rug quantities by a preponderance of the evidence, the court of appeals reviews the sentencing court’s factual findings as to drug quantity for cl ear error. Wacker , 72 F.3d at 1477. To be entitled to a lower base offense level , Lopez must prove to us that the government clearly failed to introduce sufficie nt evidence to establish by a preponderance that at least 15 kilograms of cocaine were attributable to him. USSG § 2D1.1(c)(3) (1995).8 See alsoTr., Jan. 21, 1992, at 105 (“Q: And during that, I guess, three-year period

of time Duane was making runs to California and was bring [sic] cocaine around all during that time of ‘86 to ‘89, correct? A: Yeah.”) (testimony of Donna Bennett). -14- Defendant has not met this burden. His only basis for disputing the sentencing court’s calculation is that it relied on the hearsay testimony of an FBI informer, Mr. Duane Mitchell, who is the brother of Lopez’s codefendant, Robert Mitchell. According to the FBI, Duane Mitchell rep orted that over the course of three years he had traveled regularly to Californiato obtain cocaine directly from Lopez. On this basis, the presentence report attri buted 43 kilos to the defendant, and the sentencing court accepted this estimate. H earsay statements need only contain minimal indicia of reliability to be used a t sentencing. United States v. Browning , 61 F.3d 752, 755 (10th Cir. 1995). Duane Mitchel l’s wife, Donna Bennett, corroborated several specific cocaine tran sactions between Lopez and Duane Mitchell, see Tr., Jan. 21, 1992, at 34-37, 68-69, 72-74, and fu rther testified that Duane would make trips about “once e very four to six weeks” during this period, id. at 86. 8 Defendant makes no more than vague, conclusory allegations as to the reliability of Duane Mitchell ’s estimate of the quantity of cocaine he obtained from Lopez. We therefore see n o reason to disturb the trial court’s reasonable reliance on that estimate. In a ddition, other witnesses testified to drug transactions between Lopez and Robert Mitch ell. The testimony of Ryan9Nielson testified that at Robert Mitchell’s behest, he made four or “probably five”

trips that involved the purchase of cocaine from Lopez, Tr., Jan. 24, 1992, at 58. He estimated that three kilos of brick cocaine were purchased on each trip, id. , at 6, giving a probable total of 15 kilos.

10 This fact also disposes of defendant’s ineffectiveness claim against his second counsel, Mr. Xiaz. We need not decide whether Mr. Xiaz’s performance was objectively unreasonable in light of his lack of familiarity with the case. No prejudice has been shown from the failure to raise any of the claims examined supra . However ineffective Mr Xiaz’s counsel may have been, in the circumstances of this case, it was not constitutionally deficient. -15- Nielson alone would probably support an attribution of at least 15 kilos to the defendant. 9 Lopez has not shown that any of his claims would ha ve succeeded on direct appeal. 10 We thus cannot conclude that counsel’s advice notto appeal was deficient. Defendant’s ineffectiveness of counsel claim must therefore fail. Because the existing record clearly shows that Lope z is not entitled to relief, the district court did not abuse its discretion in deny ing him an evidentiary hearing.
IV We conclude that the defendant has not stated a val id claim for ineffectiveness of counsel. He therefore lacks cau se to justify his failure to raise his other claims on direct appeal, which are conseq uently barred. We AFFIRM the district court’s denial of defendant’s § 2255 m otion for relief from his

sentence.