The Honorable Edward L. Filippine, United States District

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.

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No. 95-1806

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Lamont Ashley, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

James A. Gammon, *

* [UNPUBLISHED]

Appellee. *

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 Submitted: November 17, 1995

 Filed: April 1, 1996

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Before McMILLIAN, WOLLMAN and LOKEN, Circuit Judges.

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PER CURIAM.

Lamont Ashley, a Missouri state prisoner, appeals 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 adopting

report and recommendation). For reversal, Ashley argues that the district

court erred in (1) failing to find that his procedural default was excused

by cause and prejudice and (2) denying his request for an evidentiary

hearing. Ashley maintains that, but for these errors,
 Ashley also filed a separate pro se petition for writ of

3

habeas corpus with the Missouri Court of Appeals in which he raised

the issue of his sentencing as class X offender. That petition was

denied. He filed an identical pro se petition with the Missouri

Supreme Court, which was also denied.

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he would have prevailed on the merits of his constitutional claim. For the

reasons discussed below, we affirm.

Ashley was convicted in Missouri state court on eight counts of

burglary in the second degree upon a plea of guilty entered on February 2,

1990. He was sentenced to seven concurrent terms of fifteen years

imprisonment and one consecutive term of five years, for an aggregate

sentence of twenty years. In determining his sentence, the trial court

sentenced Ashley as a class X offender based upon Ashley's admission at his

plea hearing that he had at least three prior felonies. Following his

conviction, Ashley filed a motion for postconviction 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 appointed

counsel. The state court denied Ashley's motion, and his appointed counsel

filed an appeal, asserting only the ineffective assistance claim. The

Missouri Court of Appeals affirmed the denial of Ashley's motion for

postconviction relief. 

3

Ashley filed this petition pro se in federal district court, seeking

a writ of habeas corpus on grounds that the state trial court improperly

sentenced him as a class X offender, in violation of his due process

rights. Upon review, the magistrate judge recommended denial of the

petition on grounds of procedural default which was not excused by cause

and prejudice and which did not result in a fundamental miscarriage of

justice. Ashley v. Gammon, No. 4:91 CV 2332 (Oct. 14, 1994) (magistrate

judge's report and recommendation). By order dated February 24, 1995, the

district court adopted the magistrate judge's report and recommendation and
 We also reject Ashley's suggestion that the class X offender 4

status issue was implicitly included in Ashley's appeal from the

denial of postconviction relief, or that this court can somehow

presume an intent to include the class X offender issue in that

appeal. See Duncan v. Henry, 115 S. Ct. 887, 888 (1995) (per

curiam) (requiring specificity of claim in state court in order to

preserve it for collateral attack in federal court). Moreover, the

substance of Ashley's claim is that his status as a class X

offender was not established in accordance with proper state

statutory procedures; thus, his claim is grounded in state law and

fails to assert a violation of the Constitution or laws or treaties

of the United States within the meaning of § 2254. 

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denied Ashley's request for an evidentiary hearing. Id. (Feb. 24, 1995).

Ashley argues that his appointed counsel, on appeal from the denial

of postconviction relief in state court, was ineffective 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 assistance

claim. He also maintains that it was clearly his personal intention to

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 demonstrated both cause and

prejudice to excuse his 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 review, we note that there is

no constitutional right to effective assistance of postconviction relief

counsel and, accordingly, ineffective assistance of postconviction relief

counsel is not a basis for showing cause to overcome a procedural default

in a federal habeas action. Coleman v. Thompson, 501 U.S. 722, 752-54

(1991).4

Ashley separately argues that the district court erred in denying him

an evidentiary hearing pursuant to 28 U.S.C. § 2254(d).
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Ashley contends that he never received a full and fair hearing in state

court and that the factual dispute regarding his actual criminal record had

never been fully developed and properly decided in state court. Even if

we were to assume that Ashley has alleged facts which, if proven, would

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 requiring such an evidentiary hearing, as set forth in

§ 2254(d), has been established. We therefore hold that the district court

did not err in declining to hold an evidentiary hearing in the present

case. Accordingly, the order of the district court is affirmed. See 8th

Cir. R. 47B. 

A true copy.

Attest:

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