                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 15 2002
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 01-1278
          v.                                 (D.C. No. 97-N-598, 90-CR-297-N)
 JAMES ALEXANDER HENRY, also                           (D. Colorado)
 known as Antone Hackett, also known
 as Clyde Chadmen, also know as Yak,

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered

submitted without oral argument.

      James Alexander Henry, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255


      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
habeas corpus petition. The district court entered an order on March 16, 2001

denying Mr. Henry’s § 2255 petition. Ten days later, Mr. Henry, apparently under

the impression that his § 2255 petition remained pending, filed a motion to amend

that petition. Mr. Henry sought to add to his original § 2255 motion a claim

based upon Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). The district court,

in an April 4, 2001 order, denied Mr. Henry’s motion to amend. The court noted

that the sixty-day statute of limitations barred the claim unless Fed. R. Civ. P.

15(c) provided an avenue to avoid the statute of limitations. The district court

concluded that Rule 15(c) did not apply to Mr. Henry’s motion to amend. See

Rec. doc. 14 (Order, filed Apr. 4, 2001) (citing United States v. Espinoza-Saenz,

235 F.3d 501, 504-05 (10th Cir. 2000)).

      On April 10, 2001, Mr. Henry filed a motion to reconsider the denial of his

motion to amend. The district court denied this motion on April 19, 2001. Mr.

Henry filed his notice of appeal on June 11, 2001, which was within the sixty-day

requirement of Fed. R. App. P. 4(a)(1)(B). The notice was timely to appeal the

April 4, 2001 denial of the motion to amend but not to appeal the denial of the §

2255 petition.

      We first review the district court’s denial of the motion to amend. We

hold, as did the district court, that because the Apprendi claim was factually and

legally unrelated to the claims in the original petition, the amendment could not


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relate back to the original filing date under Fed. R. Civ. P. 15(c) and was

therefore untimely. See Espinoza-Saenz, 235 F.3d at 504–05 (stating that “an

untimely amendment to a § 2255 motion which, by way of additional facts,

clarifies or amplifies a claim or theory” may be permissible, but “only if . . the

proposed amendment does not seek to add a new claim or insert a new theory into

the case.”) Thus, Mr. Henry must receive permission to file a successive petition

for consideration of his Apprendi claim.

      Second, we note that Mr. Henry claims he had not yet received notice of the

denial of his § 2255 motion when he filed his motion to amend the § 2255

petition. Unfortunately for Mr. Henry, pursuant to Rule 4(a)(1) of the Federal

Rules of Appellate Procedure, an appellate court acquires jurisdiction over an

appeal from a district court decision only upon the timely filing of a notice of

appeal. See generally Smith v. Barry, 502 U.S. 244 (1992) (considering

requirements for proper notice of appeal). Once an appellate court determines

that a notice of appeal is untimely, the appellate court is without discretion to

review the merits and must dismiss the appeal. See Budinich v. Becton Dickinson

& Co., 486 U.S. 196, 203 (1988) (noting that “our cases hold that a court lacks




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discretion to consider the merits of a case over which [the court] is without

jurisdiction”) (quotation marks and alternations omitted). 1




      1
         Even if we could liberally construe Mr. Henry’s motion as a motion to
reconsider the judgment, cf. Smith, 502 U.S. at 248-49 (liberally construing a
brief as the functional equivalent of a notice of appeal), Mr. Henry’s claims fare
no better on the merits. Mr. Henry was convicted of possession of crack cocaine
with intent to distribute, use of the postal service to facilitate possession of crack
cocaine, and giving a false name to a United States marshal at the time of Mr.
Henry’s arrest. He was sentenced to 262 months’ imprisonment. On direct
appeal, we affirmed his conviction and sentence.
       In his 28 U.S.C. § 2255 petition, Mr. Henry asserted (1) a double jeopardy
violation for a two-point obstruction of justice adjustment to his offense level for
using a false name and (2) ineffective assistance of counsel for failure to raise
this argument on direct appeal. The district court rejected Mr. Henry’s
contentions, relying on the Supreme Court’s decision in Witte v. United States,
515 U.S. 389 (1995). In Witte, the Court rejected the “petitioner’s double
jeopardy theory--that consideration of uncharged conduct in arriving at a sentence
within the statutorily authorized punishment range constitutes ‘punishment’ for
that conduct.” 515 U.S. at 397. The Court concluded that such a theory “is not
supported by our precedents, which make clear that a defendant in that situation is
punished, for double jeopardy purposes, only for the offense of which the
defendant is convicted.” Id. The Supreme Court further concluded that because
the “consideration of relevant conduct in determining a defendant’s sentence
within the legislatively authorized punishment range does not constitute
punishment for that conduct,” the petitioner’s “instant prosecution does not
violate the Double Jeopardy Clause’s prohibition against the imposition of
multiple punishments for the same offense.” Id. at 406.
       The district court was correct in applying Witte to Mr. Henry’s double
jeopardy claim. For Mr. Henry, the statutory maximum for the underlying count
of possession of crack cocaine with the intent to distribute, was life
imprisonment; Mr. Henry’s sentence of 262 months was within the statutory
maximum. As to Mr. Henry’s ineffective assistance claim, we again agree with
the district court that counsel’s failure to engage in a frivolous appeal cannot be
considered ineffective assistance of counsel.


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       The record on appeal reveals no motions that might have extended the time

for filing the notice of appeal from the district court’s denial of Mr. Henry’s §

2255 motion. The requirement to file a timely notice of appeal is both mandatory

and jurisdictional and is a requirement this court is without power to waive.

Consequently, we have no jurisdiction to hear the underling claims in this appeal.

      To qualify for a COA, a defendant must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Henry may make

this showing by demonstrating that the issues raised are debatable among jurists,

that a court could resolve the issues differently, or that the questions raised

deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Mr. Henry has made no such showing, and therefore we DENY his

request for a COA and DISMISS the appeal.

                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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