                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JULY 1, 2005
                             No. 04-11702                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

        D. C. Docket Nos. 00-01001-CV-T-25-EAJ; 95-00237-CR-T-2

CYRIL AUBREY JOHN,

                                                        Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (July 1, 2005)


Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Cyril Aubrey John, a federal prisoner proceeding pro se, was granted a

certificate of appealability on the following issue:

      Whether the district court erred, in light of Davenport v. United
      States, 217 F.3d 1341, 1345-46 (11th Cir. 2000), by denying
      appellant’s motion to supplement his 28 U.S.C. § 2255 motion to add
      new claims upon finding that the claims were not timely raised, given
      that the court considered the merits of appellants’ original claims and
      did not consider whether the untimely claims related back to the
      timely filed claims

For the reasons stated more fully below, we affirm.

      On May 22, 2000, John, a federal prisoner serving a 262-month sentence for

conspiracy to possess with intent to distribute cocaine, conspiracy to import

cocaine, and importation of cocaine, filed a pro se motion to vacate, correct, or set

aside his federal sentence pursuant to 28 U.S.C. § 2255. John previously had

directly appealed his conviction and sentence raising the following issues:

(1) whether admission of a codefendant’s confession violated Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1988); (2) whether there was

insufficient evidence to support a conspiracy; (3) whether the district court erred in

calculating the drug quantity of the conspiracy at nine kilograms; (4) whether the

district court erred by enhancing his sentence for obstruction of justice; (5) whether

the district court erred by enhancing his sentence for his role as a manager or

supervisor; and (6) whether the district court erred by finding he possessed a



                                           2
weapon. See United States v. Teekasingh, et al., United States v. John, Nos. 96-

2187, 98-2618, (11th Cir. May 25, 1999) (unpublished). His conviction and

sentence were affirmed, and John filed a writ of certiorari with the United States

Supreme Court, which was denied on November 29, 1999. John v. United States,

528 U.S. 1034, 120 S.Ct. 561, 145 L.Ed.2d 436 (1999).

      In his § 2255 motion, John raised four claims: (1) ineffective assistance of

counsel because he was deceived into entering a stipulation conceding elements of

the crimes charged; (2) error by the district court for accepting counsel’s

stipulation to elements of the crimes charged without ascertaining whether John

was stipulating voluntarily; (3) abuse of discretion by the district court for basing

his sentence on unreliable information, i.e, a lab report, in violation of

Fed.R.Crim.P. 32, and (4) error in sentencing him as a “supervisor/manager”

because the testimony of the government’s key witness, Aviles, and his statement

to a police officer, Rodriguez, were “all the facts necessary to determine” John’s

role in the conspiracy.

      On September 6, 2000, John filed a motion to amend his § 2255 motion,

raising three new claims, namely: (1) the charging indictment was invalid because

it did not specify the particular drug quantity to be proven to a jury beyond a

reasonable doubt and further failed to specify the penalty; (2) the enhancements



                                           3
made to his sentence were not charged in the indictment either; and (3) the

government knowingly used Aviles’s false testimony to support John’s conviction,

requiring Avile’s testimony to be suppressed and John’s conviction overturned.

      Next, on March 30, 2001, John filed a second motion seeking leave to

amend his pleadings to include (1) a facial challenge to the sufficiency of proof

submitted to the grand jury to secure the charging indictment and the evidence

presented to the jury to secure a conviction and (2) a challenge to the judicial

determination of the nature, type, and quantity of drugs attributable to him at

sentencing under Apprendi v. New Jersey, 503 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000). The district court denied John leave to amend, finding that

(1) Apprendi claims did not apply retroactively on collateral review and (2) John’s

new claims did not arise out of the same facts as his original filing and, therefore,

the statute of limitations under AEDPA time-barred his newly-raised claims.

      Nearly one year later, on March 22, 2002, John again requested leave to

amend his § 2255 pleading (without indicating a new claim) and to file a

supplemental memorandum that he believed would establish that the government

knowingly presented false testimony (through Aviles) at trial and, absent the false

testimony, there would be insufficient evidence to sustain his conviction. Before

any ruling had been made, John then filed for leave to expand the record to include



                                           4
additional materials he believed were relevant to the issues raised in his initial

§ 2255 motion. On August 14, 2002, John filed, again before the district court had

ruled on his previous requests, a motion to amend his original pleadings, this time

arguing that (1) counsel failed to present a statement made by Rodriguez that

would have corroborated John’s testimony, making his sentence enhancement for

obstructing justice invalid; (2) counsel’s failure to present Rodriguez’s statement

led to John’s enhancement for use of a dangerous weapon, which should also be

reversed; and (3) counsel’s failure to present Rodriguez’s statement unfairly

prejudiced John’s entire trial. John argued that these claims related back to issue

four of his original § 2255 filing and that each was grounds for a finding of

ineffective assistance of counsel.

      On March 5, 2004, the district court denied as untimely John’s motions to

amend from March 22, 2002, and August 14, 2002. It further denied John’s

September 6, 2000, motion to amend/supplement, finding that it would be “futile to

allow [John] to raise the amendments he seeks.” Finally, it denied John’s motion

to expand the record. On March 8, 2004, the district court denied John’s § 2255

motion on the merits, finding that (1) John’s ineffective assistance of counsel claim

regarding the entry of his stipulation to elements of the crime failed because the

stipulation was a tactical move, consented to by John and his attorney and, in any



                                           5
event, the evidence against John was overwhelming and John could show no

prejudice; (2) John’s claim that the court erred by accepting the stipulation was

procedurally barred because it was not raised on direct appeal, with no excusable

cause for ineffective assistance of counsel, but that, in any event, there was no

requirement for the court to address John personally at trial regarding a stipulation

as to drug type and quantity; (3) John’s claim that the court relied on an unreliable

lab report at sentencing was procedurally barred and John had failed to establish

cause and prejudice; and (4) John’s challenge to his sentence enhancement for

being a manager/supervisor was procedurally barred but, in any event, while the

claim made on direct appeal was not exactly the same as the one raised in John’s

§ 2255 motion, we previously had found that the district court did not commit plain

error by finding that John exercised a managerial/supervisory role.

      John filed a motion to alter or amend the district court’s judgment, arguing

inter alia that his claims should not be considered procedurally defaulted because

he had shown that his trial counsel was ineffective and he had a claim of actual

innocence. He also argued that his claim as to managerial/supervisory role should

not have been denied because it was based on the government’s use of knowingly

false testimony. The district court granted the motion in part to amend its order a

finding of fact that John had filed for certiorari with the Supreme Court, which was



                                           6
denied on November 29, 1999, meaning that John had until November 29, 2000, to

file his § 2255 motion. The court also stated that it would reconsider its denial of

John’s motion to supplement his original § 2255 motion, filed on September 6,

2000, which would be addressed in a corrected order.

       Finally, on March 31, 2004, the district court issued its amended order to

reflect John’s filing of certiorari, reiterated its earlier ruling on John’s original

§ 2255 motion, and denied all of the claims John raised in his September 6, 2000

motion to supplement or amend his original § 2255 motion. It found that the three

claims John raised were procedurally barred because they were not raised on

appeal and John had failed to demonstrate actual innocence in light of the

overwhelming evidence of his guilt. Moreover, as to John’s claim that the

indictment was deficient for failing to allege drug type or quantity or any of the

facts used to enhance his sentence, the court found that these were Apprendi

claims, and Apprendi did not apply retroactively to cases on collateral review or to

the Federal Sentencing Guidelines. Finally, as to John’s claim that Aviles had

testified falsely, the court found that John had failed to demonstrate how the

testimony was false or that the government knowingly used the testimony to

convict him.

       John filed for a certificate of appealability, which the district court denied,



                                             7
finding that John had failed to make a substantial showing of the denial of a

constitutional right. Subsequently, we granted a COA on the sole issue of whether

the district court erred by failing to consider whether the claims raised in John’s

motions to amend, denied for being untimely, related back to his original, timely-

filed claims.

      John filed his petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat.

1214 (1996); therefore, the provisions of that act govern his appeal. On appeal,

John argues that his untimely claim, that counsel failed to present Rodriguez’s

statement at trial, a statement which he believes would have contradicted testimony

used to convict and sentence him, relates back to his original claim because his

original claim included both the statement and an argument that the statement

negated his sentence enhancement for being a manager/supervisor. He next argues

that his claim that the government knowingly used false testimony at trial relates

back to his original claims, but does not state why. The remainder of John’s brief

does not address the sole issue listed in the COA.

      We review “a district court's findings of fact in a 28 U.S.C. § 2255

proceeding for clear error, and its legal conclusions de novo.” Garcia v. United

States, 278 F.3d 1210, 1212 (11th Cir. 2002). In “an appeal brought by an



                                           8
unsuccessful habeas petitioner, appellate review is limited to the issues specified in

the COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998).

Therefore, the only issue before us is whether the district court erred in light of

Davenport v. United States, 217 F.3d 1341 (11th Cir. 2000) by failing to consider

whether or not John’s untimely claims, raised in motions to amend or supplement

his original motion, “relate-back” to his timely-filed claims.

       Pursuant to Fed.R.Civ.P. 15(c), “[a]n amendment of a pleading relates back

to the date of the original pleading when . . . the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2).

“‘Relation back’ causes an otherwise untimely claim to be considered timely by

treating it as if it had been filed when the timely claims were filed.” Davenport,

217 F.3d at 1344. In a § 2255 motion, “the untimely claim must have more in

common with the timely filed claim than the mere fact that they arose out of the

same trial and sentencing proceedings.” Id. “Instead . . . the untimely claim must

have arisen from the ‘same set of fact’ as the timely filed claim, not from separate

conduct or a separate occurrence in "both time and type.” Id.

      As a preliminary matter, the only motion to amend or supplement John’s

§ 2255 claims properly before us is the August 14, 2002, motion because (1) the



                                           9
claims raised in John’s September 6, 2000, motion to amend were timely and,

therefore, addressed on the merits; (2) John’s March 30, 2001, amended claims

were untimely, but the district court ruled on those claims, finding that they did not

arise out of the same facts as his original filing and, therefore, were time-barred

under AEDPA; and (3) John’s motions to file a supplemental memorandum and to

expand the record to include additional materials did not raise any new claims and,

therefore, the relation-back doctrine is inapplicable. Accordingly, under our

limited review of the issue presented in the COA, the only claims before the court

are those that were denied as untimely without considering whether or not they

related-back as defined in Davenport. Those claims are the ones raised by John on

August 14, 2002, and denied as untimely by the court on March 5, 2004.1

       Because John’s petition for certiorari was denied on November 29, 1999, he

had until November 29, 2000, to timely file all claims for a § 2255 motion. See 28

U.S.C. § 2255; Clay v United States, 537 U.S. 522, 525-27, 123 S.Ct. 1072, 1075-

76, 155 L.Ed.2d 88 (2003). Accordingly, his August 14, 2002, motion to amend


       1
         In its March 5, 2004, order, the district court makes reference to John’s “proposed
amended § 2255 motion,” filed on October 25, 2002. The court mentioned the issues presented
in that amended motion and even went so far as to find that the amended motion alleged grounds
not previously raised in John’s original § 2255 motion. However, the court did not deny the
amended motion, but instead struck it from the record altogether, choosing to proceed on the
original § 2255 motion filed March 22, 2000. As the record reveals, John’s October 25, 2002,
proposed amended § 2255 motion was indeed stricken from the record pursuant to court order.
Because the motion was stricken, and the COA does not cover the district court’s decision to
strike John’s entire filing, that issue is not before us.

                                              10
with new claims was untimely. The claims raised in John’s August 14, 2002,

motion to amend were: (1) trial counsel failed to present a statement made by

Rodriguez that would have corroborated John’s testimony, making his sentence

enhancement for obstructing justice invalid; (2) trial counsel’s failure to present

Rodriguez’s statement led to John’s enhancement for use of a dangerous weapon,

which should also be reversed; and (3) trial counsel’s failure to present

Rodriguez’s statement unfairly prejudiced John’s entire trial.

      The only similarity between John’s timely filed claims and his untimely filed

claims is that John mentions, in his original § 2255 claims, that Aviles’s statement

to Rodriguez constituted “all the facts necessary” to determine whether John

played a role as a manager or supervisor, and in his motion to amend, John seeks to

introduce a statement made by Rodriguez. According to John, however, that

statement that would (1) corroborate John’s testimony and void the obstruction of

justice enhancement; (2) void his possession of a weapon enhancement; and

(3) prove that his entire trial had been prejudiced because his counsel was

ineffective by failing to introduce that statement. However, the failure of counsel

to introduce Rodriguez’s statement at trial, if it were in error, “arose from separate

conduct and occurrences in both time and type” than any of John’s timely filed

claims and, accordingly, the district court did not err under Davenport. See



                                          11
Davenport, 217 F.3d at 1346 (holding, inter alia, that although plaintiff’s original

§ 2255 motion challenged the moisture content and the lack of sodium bicarbonate

in the drugs and counsel’s failure to raise these issues, his claim that he was

sentenced on the basis of three grams of cocaine that were not part of the same

course of conduct as the other 49 grams of cocaine did not “relate back” to the

original).

       Accordingly, we conclude that the district court did not err when it denied

John’s motion to amend his § 2255 claims because those claims did not relate back

to John’s timely-filed § 2255 claims.

AFFIRMED.




                                          12
