### The Honorable Edward L. Filippine, United States Distric t 1 

### Judge for the Eastern District of Missouri. The Honorable David D. Noce, Chief United States Magistrate 2 

### Judge for the Eastern District of Missouri. ____________ No. 95-1806

____________ Lamont Ashley, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri James A. Gammon, * * [UNPUBLISHED] Appellee. *

____________ Submitted: November 17, 1995 Filed: April 1, 1996

____________ Before McMILLIAN, WOLLMAN and LOKEN, Circuit Judges.

____________
PER CURIAM.
Lamont Ashley, a Missouri state prisoner, appea ls from a final order entered in the United States District Court for the District of Missouri, 1 adopting the report and recommendation of the magistrate judge and denying 2 Ashley's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

. Ashley v. Gammon , No. 4:91 CV 2332 (E.D. Mo. Feb. 24, 1995) (order adoptin g report and recommendation). For reversal, Ashle y argues that the district court erred in (1) failing to find that his proc edural default was excused by cause a nd prejudice and (2) denying his request for an evidentiar y hearing. Ashley maintains that, but for these errors,

### Ashle y also filed a separate pro se petition for writ o f 3 

### habeas corpus with the Missouri Court of Appeals in which he raised the issue of his sentencing as class X offender. That petit ion was denied. He filed an identical pro se petition with the Missour i Supreme Court, which was also denied. -2- he would have prevailed on the merits of his constitutional claim. For th e reasons discussed below, we affirm.
Ashley was convicted in Missouri state court on eight counts o f burglary in the second degree upon a plea of gui lty entered on February 2, 199 0. He was sentenced to seven concurrent terms of fifteen year s impriso nment and one consecutive term of five years, for an aggregat e sentence of twenty years. In determining his sentence, the trial cour t sentenced Ashley as a class X offender based upon Ashley's admission at hi s plea hearing that he had at least three prior felonies. Following hi s conviction, Ashley filed a motion for postconvic tion relief in state court claiming that he received ineffective assistance of trial counsel and that he was improperly sentenced as a class X offender. He was appointe d counsel. The state court denied Ashley's motion, and his appointed counse l filed an appeal, asserting only the ineffective assistance claim. Th e Miss ouri Court of Appeals affirmed the denial of Ashley's motion fo r postconviction relief. 3
Ashley filed this petition pro se in federal di strict court, seeking
a writ of habeas corpus on grounds that the state trial court improperly senten ced him as a class X offender, in violation of his due proces s righ ts. Upon review, the magistrate judge recommended denial of th e petition on grounds of procedural default which was not excused by cause and p rejudice and which did not result in a fundamental miscarriage o f justice. Ashley v. Gammon , No. 4:91 CV 2332 (Oct. 14, 1994) (magistrate judge's report and recommendation). By order da ted February 24, 1995, the district court adopted the magistrate judge's report and recommendation an d

### We also rej ect Ashley's suggestion that the class X offender 4 

### sta tus issue was implicitly included in Ashley's appeal from th e denial of postconviction relief, or that this court can someho w presu me an intent to include the class X offender issue in tha t appeal. See Duncan v. Henry , 115 S. Ct. 887, 888 (1995) (pe r curiam) (requiring specificity of claim in state court in order to preserve it for collateral attack in federal court). Moreov er, the subs tance of Ashley's claim is that his status as a class X offend er was not established in accordance with proper stat e statutory procedures; thus, hi s claim is grounded in state law and fails to assert a violation of the Constitution or laws or t reaties of the United States within the meaning of § 2254. -3- denied Ashley's reque st for an evidentiary hearing. Id. (Feb. 24, 1995).
Ashley argues that h is appointed counsel, on appeal from the denial of postconviction relief in state court, was ine ffective in failing either to assert the class X offender sentencing issue as an independent ground for appeal or to incorporate this issue into his ineffective assistanc e claim. H e also maintains that it was clearly his personal intention t o appeal the sentencing issue, as evidenced by his contemporaneous filings of pro se petitions for a writ of habeas corpus in the Missouri Court of Appeals and the Missouri Supreme Court, in which he did specifically raise the sentencing issue. Thus, he argues, he has d emonstrated both cause and prejudice to excuse h is appointed counsel's procedural default in failing to appeal the class X offender issue to the Missouri Court of Appeals in the postconviction relief proceedings. Upon rev iew, we note that there is
no constitutional right to effective assistance of postconviction relief counsel and, accordin gly, ineffective assistance of postconviction relief counsel is not a basi s for showing cause to overcome a procedural default in a federal habeas action. Coleman v. Thompson , 501 U.S. 722, 752-5 4 (1991). 4
Ashley separately argues that the district court erred in denying hi m an evidentiary hearing pursuant to 28 U.S.C. § 2254(d).

### -4-

Ashley co ntends that he never received a full and fair hearing in stat e court and that the factual dispute regarding his actual criminal record ha d
never been fully developed and properly decided in state court. Even if
we were t o assume that Ashley has alleged facts which, if proven, woul d entitle him to relief, we hold that the record before the district court
was adequate and that Ashley has not shown, nor does it appear, that any of the grounds for re quiring such an evidentiary hearing, as set forth in § 2254(d), has been established. We therefore hold that the district cour t did not err in declining to hold an evidentiary hearing in the presen t case. Accordingly, t he order of the district court is affirmed. See 8th Cir. R. 47B.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.