The Honorable Andrew W. Bogue, Senior United States District Judge for the 1

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 97-3473

___________

United States of America, *

*

 Appellee, *

*

 vs. * Appeal from the United

* States District Court

Michael Lloyd Craycraft, * for the Southern District

* of Iowa. 

*

 Appellant. * 

*

__________

Submitted: December 15, 1998

 

 Filed: February 3, 1999 

__________

Before BEAM and LOKEN, Circuit Judges, and BOGUE, District Judge. 1

_________

BOGUE, Senior District Judge.
The Honorable Charles L. Wolle, Chief Judge. 2

2

Michael Lloyd Craycraft, who pleaded guilty to conspiring to distribute

methamphetamine, appeals from the dismissal of his motion to vacate, set aside, or

correct his sentence and from the rejection of various ineffective assistance of counsel

arguments. We affirm.

I.

Background

On August 31, 1993, Craycraft, pursuant to a plea agreement, pleaded guilty to

conspiring to distribute methamphetamine. 21 U.S.C. § 846. He faced a mandatory

term of 10 years imprisonment, but the plea agreement spoke to the possibility of a

sentence reduction if Craycraft substantially assisted the Government in its prosecution

of other defendants. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 . The Government,

however, failed to file a motion for a reduction in Craycraft’s sentence for substantial

assistance. Instead, the Government gave notice of its intent to seek an enhancement

of Craycraft’s sentence because of a prior state court felony drug conviction. See 21

U.S.C. § 851(a)(1). When the United States District Court for the Southern District

of Iowa passed sentence, Craycraft received the minimum term of 20 years

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confinement as a result of this prior conviction. See 21 U.S.C. § 841(b).

Although Craycraft claims that he instructed his attorney to file an appeal, no

notice of appeal was filed by his counsel. On November 26, 1993, Craycraft filed a

handwritten pro se notice of appeal, which was dismissed by this Court as not timely

filed. Precisely one year after his sentencing, Craycraft’s trial counsel moved to reduce

Craycraft’s sentence for substantial assistance. The motion was resisted by the

Government and after a telephone hearing, the requested relief was denied, the District
3

Court noting the absence of evidence of an unconstitutional motive or bad faith on the

Government’s part. 

Several years passed, then, on April 18, 1997, Craycraft filed a pro se petition

for relief under 28 U.S.C. § 2255, accompanied by supporting exhibits. Shortly

thereafter, all the while acting pro se, he made two amendments to his claim. The

District Court directed the Government to respond and briefs were filed. After a

telephone hearing conference, the Court denied relief and later denied Craycraft’s

motion for reconsideration as well. Craycraft then proceeded to file a pro se notice of

appeal which this Court treated as an application for appealability, granted it, and

appointed counsel to represent Craycraft on appeal.

Craycraft raises several issues before this Court. For purposes of clarity, they

can be grouped broadly into two categories, the first dealing with the lawfulness of his

sentence enhancement, and the second dealing with the adequacy of his representation

by counsel at various stages in the proceedings. A third issue raised by Craycraft

cannot be adjudicated by this Court, and so we decline to address its merits as

explained below.

II.

Discussion

A.

Prior Conviction Enhancement

 

Craycraft first raises an issue of statutory construction which was resolved by

this Court in United States v. Trevino-Rodriguez, 994 F.2d 533 (8 Cir. 1993).

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Section 851 details the proceedings to establish that a defendant has been previously

convicted
4

 of a crime when that conviction is used to enhance a federal sentence. 21 U.S.C. §

851. The statute requires that prior to the entry of a plea, the government file an

information with the court which identifies the previous conviction or convictions to

be relied upon. 21 U.S.C. § 851(a)(1). In the next subsection, the statute states that

no such information may be filed when the proposed enhancement exceeds three years

“unless the person either waived or was afforded prosecution by indictment for the

offense for which such increased punishment may be imposed.” 21 U.S.C. §

851(a)(2). 

Craycraft’s prior state conviction was tried by information. He claims that

because his enhancement exceeded three years, section 851(a)(2) precluded the District

Court from relying on his prior conviction since it was not prosecuted by an indictment

by a grand jury, and Craycraft did not waive an indictment. He acknowledges, as he

must, that this Court has held that the “offense for which such increased punishment

may be imposed” is the instant federal offense being prosecuted rather than the prior

conviction used for enhancement purposes. Trevino-Rodriquez, 994 F.2d at 536,

citing United States v. Espinosa, 827 F.2d 604, 617 (9 Cir. 1987), cert. denied, 485 th

U.S. 968 (1988); United States v. Adams, 914 F.2d 1404, 1407 (10 Cir. 1990), cert. th

denied, 498 U.S. 1015 (1990); United States v. Burrell, 963 F.2d 976, 992 (7 Cir.

th

1992), cert. denied, 506 U.S. 928 (1992); accord, United States v. Harden, 37 F.3d

595, 600 (11 Cir. 1994). In fact, at oral arguments, Craycraft conceded the issue in th

light of the Second Circuit’s recent reversal of Collado, the only case going against this

weight of authority. United States v. Collado, 106 F.3d 1097, 1103 (2 Cir. 1997),

nd

overruled by United States v. Ortiz, 143 F.3d 718, 731 (2 Cir. 1998). Thus, because nd

the instant offense was prosecuted by indictment, the District Court’s enhancement of

Craycraft’s sentence was proper.

B.

Ineffective Assistance of Counsel
5

In his section 2255 motion before the District Court, Craycraft raised

shortcomings of his trial counsel which, he argued, amounted to ineffective assistance

of counsel in violation of the Sixth Amendment. The District Court denied his motion,

and we review this determination de novo. See United States v. Deaton, 13 F.3d 270,

271 (8 Cir. 1993). The District Court will be affirmed if the record conclusively

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shows that Craycraft is not entitled to relief. Holloway v. United States, 960 F.2d

1348, 1351 (8 Cir. 1992). th

The Sixth Amendment provides that “in all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

Const. amend. VI. When a convicted criminal defendant makes an ineffective

assistance of counsel claim, he or she is ordinarily required to make a two-part

showing of both deficiency and prejudice. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the defendant must show that

counsel’s performance was deficient; that errors were committed which were “so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. To satisfy this requirement, the

defendant must demonstrate that counsel’s performance “fell below an objective

standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, the defendant must

establish actual prejudice resulting from the deficient performance. That is, the

defendant must demonstrate “a reasonable probability that, but for counsel’s errors,”

the result would have been different. Id. at 694, 104 S.Ct. at 2068. Strickland instructs

that in the absence of showings of both ineffective performance and resulting

prejudice, the District Court’s dismissal of his claims must be affirmed.

(i)

Sixth Amendment Right to Counsel in § 2255 Motion
6

Craycraft asserts, for the first time on appeal, that he was deprived of effective

representation when the District Court required him to proceed without counsel in his

§ 2255 motion. Even if Craycraft’s claim had been raised at the trial court level, there

is no general right to counsel in post-conviction habeas proceedings for criminal

defendants. See Pollard v. Delo, 28 F.3d 887, 888 (8 Cir. 1994), cert. denied, 513

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U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994), citing McClesky v. Zant, 499 U.S.

467, 494, 111 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1991). Therefore, we find this

argument to be without merit. 

(ii)

Ineffective Assistance of Trial Counsel

Craycraft’s first asserted ground for relief raised before and dismissed by the

District Court concerning his trial counsel’s alleged shortcomings relates to his

counsel’s failure to challenge the isomeric structure of the methamphetamine involved

in this case. See U.S.S.G. § 2D1.1. Craycraft alleges that his attorney’s failure to

object to the classification of the drug constituted ineffective assistance of counsel. In

order to prevail under Strickland, Craycraft must establish both defective performance

and prejudice, yet he merely speculates about the true isomeric structure of the drugs.

Without some evidence that the drugs involved actually were l-methamphetamine, he

cannot successfully characterize the failure to object to the composition of the drugs

as either ineffectual or prejudicial. Moreover, any distinction between lmethamphetamine and d-methamphetamine was irrelevant under a statute imposing a

mandatory twenty year mandatory minimum.

Next, Craycraft contends that his trial counsel was ineffective in not pursuing

a downward departure for substantial assistance. A motion for downward departure

may be made by the government, but not by the defendant. Courts are without

statutory authority to grant downward departures for substantial assistance absent a

government 
7

motion. United States v. Kelly, 18 F.3d 612, 617 (8 Cir. 1994). Only limited

th

exceptions to this general rule apply, such as where “a defendant shows that the

government’s refusal to make the motion was based on an unconstitutional motive, that

the refusal was irrational, or that the motion was withheld in bad faith.” Id. at 617-18;

United States v. Romsey, 975 F.2d 556, 557-58 (8 Cir. 1992). th

Craycraft points to the fact that the Government originally contended that he had

done nothing but debrief, but that his pro se petition demonstrates that he actually

testified as a government witness in at least one case. This inconsistency establishes

a bad motive which his trial counsel ought to have investigated, he concludes. We

disagree. There is no error in the District Court’s finding that Craycraft failed to

establish the ineffectiveness of his trial counsel when inconclusive evidence merely

suggests a line of attack that might have been pursued. Craycraft’s proffer of such a

slender reed of evidence is insufficient to rebut the strong presumption of his counsel’s

competence. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

The third deficiency which Craycraft alleges is that his request to his trial

counsel to file an appeal of his sentence went unheeded, and the time for appeal

elapsed without his counsel acting upon his wishes. Before the District Court,

Craycraft asserted that this refusal amounted to ineffective assistance of counsel. The

Government made the argument that Craycraft’s failure to appeal claim was time

barred, relying upon the newly enacted one year period of limitation in § 2255. The

District Court, however, disposed of Craycraft’s claim on the merits. Before this

Appellate Court, the Government renews its untimeliness argument. The Government

also highlights the lack of any factual support for Craycraft’s contention that he

actually instructed his counsel to file an appeal. However, we must first inquire into

the Government’s contention that regardless of the potential merits of Craycraft’s

claim, the District Court’s dismissal must be affirmed because of a fatal jurisdictional

defect in the timeliness of Craycraft’s claim. 
Craycraft stated on page two of his original § 2255 motion that “Counsel for

3

Petitioner failed to file an appeal [Petitioner had requested counsel to file an appeal,

but counsel failed to do so].” However, he merely mentioned the assertion in passing,

and did not raise it as an independent ground for relief.

8

Craycraft filed his pro se § 2255 petition for relief on April 18, 1997, asserting

ineffective assistance of counsel: for failing to pursue a downward departure for

substantial assistance; for failing to object to the characterization of methamphetamine;

and raising challenges to his prior state conviction. On April 24 and again on May 30, 3

Craycraft amended his petition, adding the claim that his counsel failed to file an

appeal as instructed. It is this second amendment which the Government asserts is

time-barred.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended

§ 2255 to add a one year period of limitation, effective April 24, 1996. Pub.L. No.

104-132, 110 Stat. 1220 (codified at 28 U.S.C. § 2255) ; see also Gozlon-Peretz v.

United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846, 112 L.Ed.2d 919 (1991) (stating

that statutes ordinarily become effective the moment they are signed into law). Section

2255 motions must now be filed within one year of the date the conviction becomes

final, except in circumstances not applicable to this case. Craycraft filed his original

§ 2255 motion over three years after the date his conviction became final.

Nonetheless, we find that his original petition was timely filed, though the amendments

to that petition were not. 

Were the one year period of limitations contained in § 2255 to be mechanically

applied, it would bar Craycraft’s claim in toto. However, a presumption against

retroactive legislation applies whenever a claim depends on a statute which was

enacted after the events which gave rise to the claim. Landgraf v. USI Film Products,

511 U.S. 244, 280, 114 S.Ct. 1483, 1504, 128 L.Ed.2d 299 (1994). We join the

majority of circuits in holding that § 2255's one-year time limit did not begin to run
In considering the effect of the time limit of § 2255 to claims which arose prior 4

to the enactment of the time limit itself, the Fifth Circuit has ruled as a matter of

statutory construction that Congress intended to allow a “reasonable time” of one year

beyond the enactment date of the AEDPA in which to file petitions. United States v.

Flores, 135 F.3d 1000, 1004-06 (5 Cir. 1998). The Tenth Circuit reached the same th

result on grounds of fairness. United States v. Simmonds, 111 F.3d 737, 745-46 (10th

Cir. 1997). The Ninth Circuit, interpreting a similar one year time limit in § 2244, has

concluded that the statutory clock does not begin to run until the statute’s date of

enactment. Calderon v. U.S. Dist. Court for Central Dist. of Calif., 112 F.3d 386, 389

(9 Cir. 1997); accord, Lindh v. Murphy, 96 F.3d 856, 866 (7 Cir. 1996) (en banc), th th

rev’d on other grounds, 521 U.S. 2059, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997);

Reyes v. Keane, 90 F.3d 676, 679 (2 Cir. 1996); but see Peterson v. Demskie, 107 nd

F.3d 92, 93 (2 Cir. 1997) (stating in dicta that a prisoner who has had several years nd

to contemplate bringing a habeas petition need not be accorded a full year after the

effective date of the AEDPA).

In Calderon, the Ninth Circuit determined that the one-year time limit of § 2244 5

was subject to equitable tolling in extraordinary circumstances. Calderon, 112 F.3d

at 391. We do not pursue this line of reasoning because from our review of the record,

no “extraordinary circumstances” were present which would justify tolling.

9

prior to April 24, 1996. Thus, Craycraft’s original § 2255 petition was timely. His

4

amendments thereto were not.

Although the District Court did not explicitly apply any relation back doctrine,

it did pass over the Government’s argument that the amendments were time-barred and

reached the merits of Craycraft’s claim. If we were to remand, however, it is clear that

the merits of his claim would be time-barred unless a relation back analysis is

satisfied. There is no reason for this Court to remand an incorrectly decided claim if 5

the District Court lacked the jurisdiction to reach its decision in the first place. 
Because habeas proceedings are civil in nature, the Federal Rules of Civil

6

Procedure apply. 28 U.S.C. § 2242; see, e.g., Coleman v. Rafferty, 627 F.Supp. 735,

736 (D.N.J. 1986) (applying Rule 15 of the Federal Rules of Civil Procedure to a

habeas petition). Rule 15 allows amendments to pleadings, and leave to amend is

within the discretion of the trial court. Fed. R. Civ. P. 15(a); Beeck v. Aquaslide ‘N’

Dive Corp., 562 F.2d 537, 540 (8 Cir. 1977). th

Rule 15 provides for two other scenarios when “relation back” can work to save 7

an otherwise time-barred amendment, but neither is relevant here.

10

The Federal Rules of Civil Procedure provide for the relation back of

amendments filed after the running of a period of limitations in certain circumstances.6

An amendment to a pleading shall “relate back” to the date of the original pleading

only if the claim asserted in the original pleading and the claim asserted in the amended

pleading arose out of the same conduct, transaction, or occurrence. Fed. R. Civ. P.

15(c)(2). If the ineffective conduct alleged by Craycraft in his first petition cannot be 7

said to have arisen out of the same set of facts as his amended claim, his amendment

cannot relate back and his claim must be time-barred since it was filed after the

statutory period of limitation.

“The rationale of Rule 15(c) is that a party who has been notified of litigation

concerning a particular occurrence has been given all the notice that statutes of

limitations were intended to provide.” In re Bellanca Aircraft Corp., 850 F.2d 1275,

1283 (8 Cir. 1988), quoting Baldwin County Welcome Center v. Brown, 466 U.S.

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147, 150 n.3, 104 S.Ct. 1723, 1725 n.3, 80 L.Ed.2d 196 (1984). Craycraft’s original

complaint alleged deficiencies of representation distinctly separate from the deficiency

alleged in his amendments. Failing to file an appeal is a separate occurrence in both

time and type from a failure to pursue a downward departure or failure to object to the

type of drugs at issue. We cannot say that his original petition would provide notice

of such a different sort of theory. Therefore, the amendment cannot relate back under

Rule 15(c) and it must be time barred. It follows that the District Court lacked 
11

jurisdiction under the statute to hear this claim, and so we must affirm the court’s

dismissal of this claim, though on different grounds.

C.

§ 2254 Claims

In his original petition, Craycraft alleged a number of claims of ineffective

assistance of counsel leading up to the prior state court conviction which was used to

enhance his sentence in the federal proceeding. The District Court dismissed those

claims without prejudice. Craycraft now asks this Court to remand those claims for

appointment of counsel in order to pursue a collateral attack and develop a showing of

prejudice, but Craycraft has named the wrong defendant. The United States is the only

named defendant in this matter, and § 2254 relief must be obtained from the state in

which the defendant was convicted. Thus, Craycraft’s § 2254 claims are not properly

before this Court. For this reason, we decline to reach the merits of Craycraft’s § 2254

claim. The District Court’s dismissal was proper.

III.

Conclusion

In conclusion, we affirm the District Court’s decision. We find that Craycraft’s

sentence enhancement for a prior conviction was correct under Trevino-Rodriguez, 994

F.2d 533. We also affirm the District Court’s dismissal of Craycraft’s ineffective

assistance of counsel claims. First, Craycraft did not suffer a Sixth Amendment

violation when he was required to proceed without counsel in his § 2255 motion.

Next, because Craycraft failed under Strickland to establish ineffectiveness and

prejudice in his trial counsel’s failing to object to the type of drugs with which he was

charged and declining to pursue a downward departure for substantial assistance, the

District Court must be affirmed on these claims as well. As to Craycraft’s assertion

that he was 
12

deprived of effective representation when his trial counsel failed to appeal his sentence

after having been directed to do so, we conclude that the District Court was without

jurisdiction to hear this claim, and so we affirm the dismissal of this claim as well,

though on different grounds. Finally, the dismissal of Craycraft’s § 2254 motion was

entirely correct; Craycraft failed to name the appropriate defendant in that motion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.