The Honorable And rew 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 Mi chael Lloyd Craycraft, who pleaded guilty to conspiring to distribut e methamp hetamine, appeals from the dismissal of his motion to vacate, set aside, o r correct his sentence and from the rejection of various ineffective assistance of counsel arguments. We affirm.

I.
Background
On August 31, 1993, Cr aycraft, 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 defe ndants. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 . The Government, however, fail ed 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 C raycraft’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 Distric t of Iowa passed sentence, Craycraft received the minimum term of 20 year s

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

Al thoughCraycraft claims that he instructed his attorney to file an appeal, n o not ice of appeal was filed by his counsel. On November 26, 1993, Craycraft filed a han dwritten pro se notice of appeal, which was dismissed by this Court as not timely filed. Precisely one year after his sentencing, Craycraft’s tria l counsel moved to reduce Cra ycraft’s sentence for substantial assistance. The motion was resisted by th e Government and after a telephone hearing, the req uested relief was denied, the District3

Court noting the absence o f 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 forr elief under 28 U.S.C. § 2255, accompanied by supporting exhibits. Shortl y there after, all the while acting pro se , he made two amendments to his claim. Th e Di strict 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 app eal which this Court treated as an application for appealability, granted it, an d 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 catego ries, the first dealing with the lawfulness of his sentence enhancement, and the second de aling with the adequacy of his representation by co unsel at various stages in the proceedings. A third issue raised by Craycraf t cannot b e adjudicated by this Court, and so we decline to address its merits a s explained below.

II.

Discussion

A.

Prior Conviction Enhancement

Cr aycraft first raises an issue of statutory construction which was resolved b y th is Court in United States v. Trevino-Rodriguez , 994 F.2d 533 (8 Cir. 1993)

. th Section 851 details the proceedings to establish that a defendant has been previously convicted4

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 a n inform ation with the court which identifies the previous conviction or convictions t o 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 th e offense fo r which such increased punishment may be imposed.” 21 U.S.C. § 851(a)(2).
Crayc raft’s prior state conviction was tried by information. He claims tha t because his enhancement exceeded three years, section 851(a)(2) precl uded the District Court from relying on his prior conviction since i t 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 punishmen t may be imposed” is the instant federal offense being prosecuted rather than the prior convict ionused 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.3 d 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 , th e only case going against this
we ight of authority. United States v. Collado , 106 F.3d 1097, 1103 (2 Cir. 1997) , nd overruled by United States v. Orti z , 143 F.3d 718, 731 (2 Cir. 1998). Thus, because nd the instant offense was p rosecuted by indictment, the District Court’s enhancement of Craycraft’s sentence was proper.

B.
Ineffective Assistance of Counsel5

In his s ection 2255 motion before the District Court, Craycraft raise d shortcomings of his tria

l 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 conclusivel y

th shows that Craycraft is not entitled to relief. Holloway v. United States , 960 F.2 d 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 ineffectiv e assistanc e of counsel claim, he or she is ordinarily required to make a two-part showi ng 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 “s o serious that cou nsel 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 defendan t

must demonstrate that counsel’s performance “fell below an objectiv e standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, the defendant must esta blishactual prejudice resulting from the deficient performance. That is, th e d e fendant 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. Stricklandinstructs th atin the absence of showings of both ineffective performance and resultin g prejudice, the District Court’s dismissal of his claims must be affirmed.
(i)
Sixth Amendment Right to Counsel in § 2255 Motion6

Craycraft a sserts, for the first time on appeal, that he was deprived of effective representation wh en 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 gen eral right to counsel in post-conviction habeas proceedings for crimina l defendan ts. See Pollard v. Delo , 28 F.3d 887, 888 (8 Cir. 1994), cert. denied , 51 3 th 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 thi s argument to be without merit.
(ii)

Ineffective Assistance of Trial Counsel
Craycra ft’s first asserted ground for relief raised before and dismissed by th e Distr ict Court concerning his trial counsel’s alleged shortcomings relates to hi s counsel’s failure to challeng e the isomeric structure of the methamphetamine involved in this case. See U.S.S.G. § 2D1.1. Craycraft alleges that his attorney’s failure t o object to the classification of th e 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
ca nnot successfully characterize the failure to object to the composition of the drug s as either ineffectual or prejudicial. Moreover, any distinction between l

metham phetamine and d-methamphetamine was irrelevant under a statute imposing a mandatory twenty year mandatory minimum.
Next, Cray craft contends that his trial counsel was ineffective in not pursuin g adownward departure for substantial assistance. A motion for downward departure may be made by the government, but not by the defendant. Courts are withou t statutory authority to grant downward departures for substantial assistance absent a government7

mot ion. United States v. Kelly , 18 F.3d 612, 617 (8 Cir. 1994). Only limite d th excep tions to this general rule apply, such as where “a defendant shows that th e government’s refusal to make the motion was based on an u nconstitutional 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 original ly contended that he had done no thing but debrief, but that his pro se petition demonstrates that he actuall y testified as a government witness in at least one case. This inconsistency establishes
a bad m otive which his trial counsel ought to have investigated, he concludes. W e disagree. There is no error in the District Court’s finding that Craycraft failed t o establ ishthe ineffectiveness of his trial counsel when inconclusive evidence merel y suggests a line of attack that might have been pursued. Craycraft’s proffer of such a slender reed of evidence is insufficient to rebu t the strong presumption of his counsel’s competence. See Strickland , 466 U.S. at 689, 104 S. Ct. at 2065.

The t hird deficiency which Craycraft alleges is that his request to his tria l counsel to file an appeal of his sentence went unheeded, and the time for appea l el apsed 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 tim e ba rred, relying upon the newly enacted one year period of limitation in § 2255. Th e District C ourt, however, disposed of Craycraft’s claim on the merits. Before thi s Appellate Court, the Government renews its untimeliness argument. The Government als o highlights the lack of any factual support for Craycraft’s contention that h e actually instructed his counsel to file an appeal. However, we must first inquire into the G overnment’s contention that regardless of the potential merits of Craycraft’ s claim, the Dist

rict Court’s dismissal must be affirmed because of a fatal jurisdictional defect in the timeliness of Craycraft’s claim.Craycr aft stated on page two of his original § 2255 motion that “Counsel fo r 3 Petitio ner failed to file an appeal [Petitioner had requested counsel to file an appeal , but counsel failed to do so].” Ho wever, 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 fo r substantial assistance; for failing to object to the ch aracterization of methamphetamine; and raising challenges to his prior state conviction. O n April 24 and again on May 30, 3 Craycr aft amended his petition, adding the claim that his counsel failed to file a n appeal as instructed. It is this second amendment which the Government asserts i s time-barred.

The Antiterrorism and Effectiv e Death Penalty Act of 1996 (AEDPA) amended § 2255 t o 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 the y are signed into law). Section 2255 mot ions must now be filed within one year of the date the conviction become s final, except in circumstances not applicable to this case. Craycraft filed his original § 2 255 motion over three years after the date his conviction became final

. Nonetheless, we find that his original petition was t imely filed, though the amendments to that petition were not.
Were the one year per

iod of limitations contained in § 2255 to be mechanically applied, i t would bar Craycraft’s claim in toto. However, a presumption agains t
re troactive legislation applies whenever a claim depends on a statute which wa s 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 th e majority of c ircuits in holding that § 2255's one-year time limit did not begin to ru nIn 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 o f statutory construction that Congress intended to allow a “reasonable time” of one year beyon d 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 f

airness. United States v. Simmonds , 111 F.3d 737, 745-46 (10 th Cir. 1997). The Ninth Circuit, interpreting a similar one year time limit in § 2244, has co ncludedthat the statutory clock does not begin to run until the statute’s date o f 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 o n 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 th e effective date of the AEDPA). In Calderon , the Ninth Circuit determined that the one-year time limit of § 2244 5 was subjec t to equitable tolling in extraordinary circumstances. Calderon , 112 F.3 d at 391. We do not pursue this line of reasoning becau se from our review of the record, no “extraordinary circumstances” were present which would justify tolling.
9 pri or to April 24, 1996. Thus, Craycraft’s original § 2255 petition was timely. Hi s 4 amendments thereto were not.

Althou gh the District Court did not explicitly apply any relation back doctrine, it did pass over the Government’s argument that the amen dments were time-barred and reached the merits of Craycraft’s claim. If we were to remand, however, it is clear that the merit s of his claim would be time-barred unless a relation back analysis i s 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.Becaus e habeas proceedings are civil in nature, the Federal Rules of Civi l 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 ha beas petition). Rule 15 allows amendments to pleadings, and leave to amend i s 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 wor k to save 7 an otherwise time-barred amendment, but neither is relevant here.
10 The Federa l Rules of Civil Procedure provide for the relation back o f amendments filed after the runningof a period of limitations in certain circumstances. 6 An amendment to a pleading shall “relate back” to the date of the original pleadin g only if the claim asserted in the original pleading and the c laim asserted in the amended pleadi ng arose out of the same conduct, transaction, or occurrence. Fed. R. Civ. P

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

7 saidto 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 th e statutory period of limitation.

“The rationale of Rule 15(c) is that a party who has been notified of litigatio n con cerning a particular occurrence has been given all the notice that statutes o f 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

.

th 147, 150 n.3, 104 S.Ct. 1723, 1725 n.3, 80 L.Ed.2d 196 (1984). Craycraft’s original complaint alleged deficiencies of represe ntation distinctly separate from the deficiency allegedin his amendments. Failing to file an appeal is a separate occurrence in both time and type from a failure to pursu e 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 lacked11

jurisdictio n

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 hi s original petition, Craycraft alleged a number of claims of ineffectiv e assistanceof counsel leading up to the prior state court conviction which was used to enhance his sentence in the federal proceeding. The District Court dismissed thos e claims wi thout prejudice. Craycraft now asks this Court to remand those claims fo r appointment of counsel in order to purs ue a collateral attack and develop a showing of prejudice, but Craycraft has named the wrong defendant. The United States is the only named d efendant in this matter, and § 2254 relief must be obtained from the state i n which the defendant was convi cted. Thus, Craycraft’s § 2254 claims are not properly before this Court. For this reason, we decline to reach th e merits of Craycraft’s § 2254 claim. The District Court’s dismissal was proper.

III.

Conclusion In conclusion, we affirm the Distri ct Court’s decision. We find that Craycraft’s sentence enhancement for a prior conviction was correct under Tre vino-Rodriguez , 994 F. 2d 533. We also affirm the District Court’s dismissal of Craycraft’s ineffectiv e assist ance of counsel claims. First, Craycraft did not suffer a Sixth Amendmen t violation when he was required to proceed without counsel in his § 2255 motion

. Next, because Craycraft failed under Stricklandto establish ineffectiveness an d prejudice in his trial coun sel’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 Dist rict Court must be affirmed on these claims as well. As to Craycraft’s assertio n that he was12

deprived of effective representation when his tri al counsel failed to appeal his sentence afte r having been directed to do so, we conclude that the District Court was withou t jurisdictionto hear this claim, and so we affirm the dismissal of this claim as well , though on d

ifferent 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.