In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3242

Rene Rodriguez,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 C 426--Thomas J. Curran, Judge.

Argued September 26, 2001--Decided April 11, 2002



  Before Flaum, Chief Judge, and Coffey and
Manion, Circuit Judges.

  Manion, Circuit Judge. In 1994, Rene
Rodriguez received a life sentence after
being convicted of conspiring to import
and distribute over 1,000 kilograms of
marijuana from Mexico to the United
States. Rodriguez moved to have his
sentence reviewed under 28 U.S.C. sec.
2255, claiming that he was denied his
Sixth Amendment right to effective
assistance of counsel. The district court
denied Rodriguez’s sec. 2255 application
and he then filed a motion to amend the
judgment. While this motion was pending,
Rodriguez filed a motion to amend his
habeas pleadings to include a claim under
Apprendi v. New Jersey, 530 U.S. 466
(2000). The district court subsequently
denied both motions and granted Rodriguez
a certificate of appealability limited to
the ineffective assistance of counsel
claim. He then petitioned this court to
expand the issues upon which the
certificate was granted to include his
claim under Apprendi. We affirm the
district court’s denial of Rodriguez’s
sec. 2255 motion and deny his request to
expand the certificate of appealability
to include a claim under Apprendi.

I.   Background

  Rene Rodriguez was charged in a one-
count indictment with conspiracy to
deliver over 1,000 kilograms of marijuana
from 1989 through 1992, in violation of
21 U.S.C. sec.sec. 841(a)(1) & 846. In
1994, a jury convicted Rodriguez and the
district court sentenced him to life in
prison without the possibility of parole
because of the quantity of marijuana
involved in the count of conviction and
because of his prior convictions for drug
trafficking offenses. See 21 U.S.C. sec.
841 (b)(1)(A)./1 At trial, the
government presented evidence of his
conspiracy that included recorded
telephone conversations between him and
his co-conspirators, phone records, and
testimony of the co-conspirators.
Rodriguez’s theory of his defense was
that he was not involved in the
conspiracy, but was merely attempting to
steal money from the drug traffickers.
The issue of drug quantity was not
submitted to the jury during his trial,
but was instead determined by the court
by a preponderance of the evidence to be
over 1,000 kilograms. This court affirmed
the conviction and the sentence in United
States v. Rodriguez, 67 F.3d 1312 (7th
Cir. 1995), cert. denied, 517 U.S. 1174
(1996) (hereinafter Rodriguez I).

  In Rodriguez I, we addressed Rodriguez’s
argument that the issue of drug quantity
should have been submitted to the jury,
and that the appropriate standard for
determining drug quantity for sentencing
purposes was beyond a reasonable doubt.
See id. at 1322. We held that the
district court, not the jury, should have
decided drug quantity because it is not
an element of the offense. Id. at 1317.
This court also upheld the preponderance
of evidence standard, noting that due
process concerns were not implicated by
the facts of that case where the
Sentencing Guidelines incrementally
increased time served based on drug
quantity./2 Id. at 1322-23.
  On April 22, 1997, Rodriguez filed a
motion for collateral review under 28
U.S.C. sec. 2255 alleging a variety of
constitutional violations, including that
he had been denied effective assistance
of counsel. His sec. 2255 motion did
notcontain any allegations concerning the
constitutionality of the standard of
proof used to determine the drug quantity
at sentencing. Nor did it include an
allegation that the district court erred
in failing to submit the issue of drug
quantity to the jury. Rodriguez’s motion
before the district court listed almost a
dozen instances of counsel’s alleged
ineffectiveness, only two of which have
been preserved for consideration in this
appeal./3 First, Rodriguez maintains
that he involuntarily waived his right to
testify in his own defense because his
attorney incorrectly advised him that if
he took the stand his prior convictions
for drug trafficking would be entered
into evidence. Second, he alleges that
during closing argument, his counsel
effectively pleaded him guilty by
improperly admitting that Rodriguez did
possess, and agreed to deliver, ten
ounces of marijuana. On December 31,
1998, without holding an evidentiary
hearing concerning these issues, the
district court entered judgment denying
Rodriguez’s sec. 2255 motion.

  After the district court denied his
habeas petition, Rodriguez filed a motion
on January 14, 1999, to amend the denial
of his habeas application under Fed. R.
Civ. P. 59(e). The motion alleged a
variety of errors in the transcriptions
of surveillance tapes that were presented
to the jury. Eleven months later, on
December 6, 1999, while the motion to
amend the judgment was still pending,
Rodriguez filed a "Motion for Leave to
Supplement/Amend the Pleadings." In this
motion, he petitioned the district court
to allow him to include a claim in his
sec. 2255 petition that the issue of drug
quantity should have been determined by
the jury on a reasonable doubt
standard./4 Rodriguez again petitioned
the court to amend in February 2000 as a
result of the Supreme Court’s grant of
certiorari in Apprendi v. New Jersey, 530
U.S. 466 (2000). Ultimately, in August
2000 the district court denied the Rule
59 motion, along with the petitions to
amend. The district court then issued a
certificate of appealability to
Rodriguez, limited to his claims of
ineffective assistance of counsel.
Rodriguez appeals the district court’s
decision on his sec. 2255 application and
petitions this court to expand the
certificate of appealability to include
his Apprendi claim.

II.    Analysis

A.    Apprendi Claim
  On appeal of a district court’s decision
to grant or to deny an application for
writ of habeas corpus, we review all
questions of law de novo. Small v.
Endicott, 998 F.2d 411, 414 (7th Cir.
1993). In order to appeal a district
court’s ruling on a writ of habeas
corpus, an applicant is required to
obtain a certificate of appealability.
See 28 U.S.C. sec. 2253(c) (1)(B); Fed.
R. App. P. 22(b)(1). Because the
certificate in this case is limited to
only the ineffective assistance claims,
we will first address Rodriguez’s
petition to expand the certificate to
include his claim under Apprendi. "A
certificate of appealability may issue
[by a district or circuit judge] . . .
only if the applicant has made a
substantial showing of the denial of a
constitutional right . . . [and the
certificate] shall indicate which
specific issue or issues satisfy that
showing." 28 U.S.C. sec. 2253(c); see
also Williams v. Parke, 133 F.3d 971, 975
(7th Cir. 1997). Rodriguez fails to make
this showing, and therefore his request
to expand the certificate of
appealability is denied.

  Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a
substantial showing of a denial of a
constitutional right "includes showing
that reasonable jurists could debate
whether (or, for that matter, agree that)
the petition should have been resolved in
a different manner or that the issues
presented were ’adequate to deserve
encouragement to proceed further.’" Slack
v. McDaniel, 529 U.S. 473, 484 (2000)
(citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). Here, the
district court did not address the
substantive issues underlying Rodriguez’s
proposed habeas claim under Apprendi, but
instead denied his post-judgment motions
that sought to raise that claim. When a
district court denies a habeas claim on
procedural grounds, a circuit court
should only expand the certificate to
include that claim if a prisoner at least
demonstrates "that jurists of reason
would find it debatable whether the
petition states a valid claim of the
denial of a constitutional right and that
jurists of reason would find it debatable
whether the district court was correct in
its procedural ruling." Id. at 484. "When
a plain procedural bar is present and the
district court is free to invoke it to
dispose of the case, a reasonable jurist
could not conclude either that the
district court erred in dismissing the
petition or that the petitioner should be
allowed to proceed further." Id. In this
case, we find that Rodriguez cannot show
the denial of a constitutional right
because he is procedurally barred from
raising his Apprendi claim.

  First, Rodriguez is procedurally barred
from pursuing his Apprendi claim on
appeal because he failed to raise that
claim in his sec. 2255 claim before the
district court. In a habeas case, the
"law is clear that any claim not
presented to the district court is waived
on appeal." Drake v. Clark, 14 F.3d 351,
355 (7th Cir. 1994) (internal citations
omitted) (refusing to consider the
arguments raised in petitioner’s appeal
from a denial of a writ of habeas corpus
that were not presented to the district
court). See also Valenzuela v. United
States, 261 F.3d 694, 700 n. 2 (7th Cir.
2001) (stating that by failing to raise
an issue in a sec. 2255 petition before
the district court, a petitioner waived
that issue on appeal); Shilcutt v.
Gagnon, 827 F.2d 1155, 1161 (7th Cir.
1987) (declining to consider a Sixth
Amendment claim because the petitioner
did not raise it in his habeas petition
before the district court). In
Rittenhouse v. Battles, 263 F.3d 689,
694-95 (7th Cir. 2001), we addressed this
precise issue. Rittenhouse petitioned
this court to expand his certificate of
appealability to include issues that he
had not raised in the district court. Id.
However, like Rodriguez, he had
previously raised the disputed issues in
his prior proceedings on direct appeal,
but failed to raise them when he filed
his petition for a writ of habeas corpus
in the district court. Id. We refused to
expand Rittenhouse’s certificate because
his failure to raise those issues in the
district court constituted a waiver. Id.
In a like manner, Rodriguez did not raise
the Apprendi claim in his original sec.
2255 application, and it is therefore
waived on appeal.

  Rodriguez cannot rely on the timing of
the Supreme Court’s ruling in Apprendi to
avoid a finding of waiver. While it is
true that Rodriguez was tried and
sentenced prior to Apprendi v. New
Jersey, 530 U.S. 466 (2000), we have held
that prisoners in similar situations were
not relieved of their duty to bring this
type of claim in a timely manner. Our
case law is "clear that the novelty of
Apprendi does not constitute cause for
failing to raise the issue earlier
because ’the foundation for Apprendi was
laid long before 1992.’" Valenzuela, 261
F.3d at 700 n. 2 (citing Garrott v.
United States, 238 F.3d 903, 905 (7th
Cir. 2001)). Furthermore, Rodriguez was
obviously aware of the availability of a
claim addressing the standard of review
applied to sentencing factors as he
himself raised this issue in his direct
appeal. Nevertheless, he chose not to
pursue it in his habeas petition./5

  We next consider whether Rodriguez
avoided a waiver, thus preserving his
Apprendi issue for appeal, by filing a
motion to amend his pleadings. Prior to
moving to amend his sec. 2255 petition,
Rodriguez filed a motion under Fed. R.
Civ. P. 59 in January 1999 to alter or
amend the judgment of the district court.
The Rule 59 motion, and the accompanying
affidavit from Rodriguez, alleged errors
with the evidence presented at trial and
did not include any claims that the trial
court erred in using the preponderance of
the evidence standard to determine the
issue of drug quantity. In December 1999,
while the Rule 59 motion was still
pending and seven days after the Supreme
Court granted certiorari in Apprendi v.
New Jersey, 528 U.S. 1018 (1999),
Rodriguez filed a motion to amend his
pleadings to include an Apprendi claim.
Rodriguez filed a second memorandum
requesting amendment and argument on the
Apprendi issue when Apprendi was decided
in June 2000. Rodriguez argued that the
maximum sentence he should have received
for his conviction, in the absence of a
jury finding on the issue of drug
quantity, was 10 years under 21 U.S.C.
sec. 841(b)(1)(D). Because he was
sentenced to life imprisonment without
the possibility of parole, under 21
U.S.C. sec. 841(b)(1)(A), he argues that
he received a sentence in excess of the
maximum statutory penalty, in violation
of Apprendi.

  The rules governing sec. 2255 do not
deal with amendments for collateral
review and therefore proposed amendments
to sec. 2255 motions are governed by Fed.
R. Civ. P. 15(a). Johnson v. United
States, 196 F.3d 802, 805 (7th Cir.
1999). Under Rule 15(a) a court may
permit leave to allow amendment of
pleadings even after a defendant’s
absolute right to amend has lapsed,
"freely . . . when justice requires." The
AEDPA allows a prisoner a full
opportunity to seek collateral review,
which means that "[a] prisoner receives
one complete round of litigation, which
as in other civil suits includes the
opportunity to amend a pleading before
judgment." Johnson, 196 F.3d at 805.

  In this case, however, the district
court entered a judgment denying
Rodriguez’s sec. 2255 application prior
to his attempt to amend his pleadings.
This is not fatal to Rodriguez’s claim,
as a court may grant a plaintiff’s motion
for leave to amend even after judgment
had been entered. See, e.g., United
States Labor Party v. Oremus, 619 F.2d
683, 692 (7th Cir. 1980). However, in
this circuit, "’the presumption in favor
of liberality in granting motions to
amend [under Rule 15(a)] is reversed
after judgment has been entered.’" Vicom
Inc. v. Harbridge Merchant Services Inc.,
20 F.3d 771, 785 n. 13 (7th Cir. 1994)
(citing First Nat’l Bank v. Continental
Ill. Nat’l Bank, 933 F.2d 466, 468 (7th
Cir. 1991)). See also Amendola v. Bayer,
907 F.2d 760, 765 n. 1 (7th Cir. 1990)
("In this circuit, after a judgment has
been entered, a party must have the
judgment reopened pursuant to Federal
Rule of Civil Procedure 59(e) or 60(b)
and then request leave to amend pursuant
to Rule 15(a)."); Twohy v. First Nat’l
Bank, 758 F.2d 1185, 1196 (7th Cir. 1985)
(noting that "several courts have
recognized that justice may require
something less in post-judgment
situations than in pre-judgment
situations under Rule 15(a)"). In this
case the court denied both his motion to
amend and his Rule 59 motion
simultaneously and without comment.
Whether or not to grant a defendant’s
motion to amend his complaint is a
decision left to the discretion of the
district court. Bethany Pharmaceutical
Co. v. QVC, Inc., 241 F.3d 854, 861 (7th
Cir. 2001). Under Rule 15, a court may
deny the amendment due to undue delay,
bad faith, dilatory motive, prejudice or
futility. Id. at 860-61. In this case the
court would have been free to deny the
motion based on either futility or delay.

  A district court may properly deny a
motion to amend as futile if the proposed
amendment would be barred by the statute
of limitations. King v. One Unknown Fed.
Corr. Officer, 201 F.3d 910, 914 (7th
Cir. 2000). Under AEDPA, a one-year
statute of limitations applies to all
federal habeas petitions. 28 U.S.C. sec.
2255 para. 6./6 In this case,
Rodriguez’s original claim was filed
within AEDPA’s statute of limitations,
but his Apprendi claim in his motion to
amend was filed 30 months after the
deadline to file sec. 2255 motions
expired. Under Fed R. Civ. P. 15(c), an
amended complaint relates back to the
date of the original complaint for
purposes of tolling the statute of
limitations where "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). In this case, the
motion to amend will not be untimely if
it relates back to the original sec. 2255
filing. We have not addressed Rule 15(c)
in the context of a sec. 2255 motion, but
we have noted the special considerations
for post-finality motions that we must
consider in light of AEDPA’s limitations
on multiple efforts to obtain collateral
review. See Johnson at 804-05 (holding
that post-finality motions can count as
second or successive applications under
28 U.S.C. sec. 2255 para. 8, if the
petition has reached a final decision).
Four circuits have addressed this issue
and each concluded that an untimely sec.
2255 claim will not "relate back" under
Rule 15(c) unless the claim has "more in
common with the timely filed claim than
the mere fact that they arose out of the
same trial and sentencing proceedings."
Dean v. United States, 278 F.3d 1218,
1221 (11th Cir. 2002); see also United
States v. Pittman, 209 F.3d 314 (4th Cir.
2000); United States v. Duffus, 174 F.3d
333 (3d Cir. 1999); United States v.
Craycraft, 167 F.3d 451 (8th Cir. 1999).
In order for an untimely claim to relate
back, it "must have arisen from the ’same
set of facts’ as the timely filed claim,
not from separate conduct or a separate
occurrence in ’both time and type.’"
Dean, 278 F.3d at 1221 (citing Pittman,
209 F.3d at 318 ("both time and type"));
Duffus, 174 F.3d at 337 ("same set of
facts"); Craycraft, 167 F.3d at 457
("same set of facts" and "both time and
type")). In addition, these circuits have
been uniform in their denial of
amendments that would add a new claim or
theory of relief. United States v.
Thomas, 221 F.2d 430, 436 (3d Cir. 2000)
(holding that Rule 15(c)(2) applies to
sec. 2255 petitions insofar as amendments
seek to clarify or amplify existing
claims and not add entirely new claims);
Pittman, 209 F.3d at 317 (affirming a
denial of an amendment because it arose
out of a separate occurrence); Craycraft,
167 F.3d at 457 (8th Cir. 1999)
(affirming denial of a proposed amendment
because the proposed claim was
"distinctly separate" from claims already
pleaded).

  Rodriguez’s claim clearly does not
satisfy this standard. His original sec.
2255 application made no mention of the
appropriate standard of review for
sentencing factors that increase the
maximum available sentence. Instead
itfocused on ineffective assistance of
counsel issues. The issues and facts
underlying his Apprendi claim are
unrelated to his ineffective assistance
of counsel claims. Because there is no
claim in Rodriguez’s original petition
that his amended claim could relate back
to, it violates AEDPA’s one-year statute
of limitations. Because of this
preclusion, it would not have been an
abuse of discretion for the district
court to deny his motion to amend as
futile.

  In addition, the court could have denied
Rodriguez’s application based on his
delay in moving for the amendment.
Rodriguez did not move to amend his
complaint until after 29 months had
passed from the time that the government
filed its response and 32 months after
the deadline to file a sec. 2255 motion
under the AEDPA had expired.
Additionally, Rodriguez was aware of the
arguments he eventually presented in his
motion to amend because he had raised
those exact issues on direct appeal. See,
e.g., Continental Bank, N.A. v. Meyer, 10
F.3d 1293, 1297 (7th Cir. 1993) (holding
that failure to move to amend complaint
until 25 months had passed, when the
basis for the amendment was present at
the time of filing the complaint and
would have forced the nonmoving party to
conduct discovery, constituted undue
delay). Rodriguez argues that a delay in
requesting an amendment is not a
sufficient basis to deny a motion to
amend when the delay has not caused the
opposing party undue prejudice. See
Textor v. Board of Regents of N. Ill.
Univ., 711 F.2d 1387, 1391-92 (7th Cir.
1993). In this case, Rodriguez argues,
the government was on notice of the
availability of this claim, and it was
not prejudiced by the delay because it
had briefed the issue when it was raised
on direct appeal. However, based on the
significant time lapse between the
deadline to file sec. 2255 motions under
the AEDPA, the availability of this claim
at the time he filed his initial habeas
application and the need for the
government to reinvestigate this claim,
it would not have been an abuse of
discretion for the court to have denied
this motion to amend based on delay. See
Johnson, 196 F.3d at 805 (explaining that
"delay is a standard reason for denying
leave to amend.")./7

  Rodriguez argues that the time limits in
sec. 2255 should be equitably tolled
because he could not have raised an
Apprendi claim in his petition to the
district court. As we have already
established, however, supra n. 1,
Rodriguez was not precluded from raising
this argument in his initial sec. 2255
motion. At oral argument, Rodriguez’s
counsel did state that he did not
introduce the issue in his original
petition due to fear of sanctions. We
have noted on many occasions, however,
that arguments raised for the first time
at oral argument are waived. See, e.g.,
Ricci v. Arlington Heights, 116 F.3d 288,
292 (7th Cir. 1997); United States v.
Beltran, 109 F.3d 365, 371 (7th Cir.
1997); Dovenmuehle v. Gilldorn Mortgage
Midwest Corp., 871 F.2d 697, 701 n.5 (7th
Cir. 1989). Also, Rodriguez did not cite,
nor have we been able to find any case
where a litigant on habeas review was
sanctioned for relitigating issues which
were raised and ruled upon on direct
appeal.

  Rodriguez has waived the Apprendi claim
because he failed to raise it before the
district court. Rodriguez’s motions to
the district court to amend his
application to include an Apprendi claim
do not cure the waiver of this issue
because the motions were properly denied
due to the fact that they were late and
did not relate back to his original
petition. Rodriguez’s inability to show
that the district court erred in
dismissing the motions to amend his sec.
2255 motion precludes him from
establishing the denial of a
constitutional right. Therefore, his
motion to expand the certificate of
appealability is denied.


B.   Ineffective Assistance of Counsel

  This court reviews a district court’s
ruling on ineffective assistance of
counsel de novo. Kitchen v. United
States, 227 F.3d 1014, 1017 (7th Cir.
1996). In order to establish ineffective
assistance of counsel, a petitioner must
show that: (1) his attorney’s performance
"fell below an objective standard of
reasonableness," Strickland v.
Washington, 466 U.S. 668, 688 (1994); and
(2) "but for counsel’s unprofessional er
rors the result of the proceeding would
have been different." Id. at 694. See
also United States v. Zarnes, 33 F.3d
1454, 1473 (7th Cir. 1994). In terms of
the performance prong, "[j]udicial
scrutiny of counsel’s performance must be
highly deferential." Strickland, 466 U.S.
at 689. Only those "who can prove under
Strickland that they have been denied a
fair trial by the gross incompetence of
their attorneys will be granted the writ
. . . ." Kimmelman v. Morrison, 477 U.S.
365, 382 (1986). "This requires showing
that counsel made errors so serious that
counsel was not functioning as the
’counsel’ guaranteed the defendant by the
Sixth Amendment." Strickland, 466 U.S. at
687. The burden for a defendant is high
when he attempts to contend his counsel’s
trial strategy was ineffective because
"Strickland builds in an element of
deference to counsel’s choices in
conducting the litigation." Holman v.
Gilmore, 126 F.3d 876, 881 (7th Cir.
1997). In order to establish prejudice
under the second prong, the
unprofessional errors of counsel must be
so egregious "that the trial was rendered
unfair and the verdict rendered suspect."
Morrison, 477 U.S. at 374.

  Rodriguez argues that he was denied his
Sixth Amendment right to effective
assistance of counsel when his attorney
advised him that if he testified, his
prior convictions could be used to
impeach his testimony. Rodriguez contends
that this advice was incorrect because
his prior conviction was inadmissible
character evidence under Fed. R. Evid.
609. He maintains that his attorney
compounded this error by failing to even
argue that issue during a pretrial
conference. This argument fails to
satisfy either prong of the Strickland
test.

  First, Rodriguez cannot show that his
counsel’s advice concerning the
impeachment value of his prior crime was
unreasonable. Under Fed. R. Evid. 609,
evidence that the accused has been
convicted of a crime within ten years of
the present offense punishable by more
than one year in prison shall be admitted
if the court determines that the
"probative value of admitting this
evidence outweighs its prejudicial
value." Fed. R. Evid. 609(a)(1), (b);
see, e.g., United States v. Mahone, 537
F.2d 922, 929 (7th Cir. 1976) (holding
that prior to admitting evidence of a
prior offense to be used for impeachment
purposes, judges should hold a hearing on
the matter and explicitly find that the
prejudicial effect of the evidence will
be outweighed by its probative value).
Some of the factors that a judge should
consider in making this determination
are: "(1) the impeachment value of the
prior crime; (2) the point in time of the
conviction and the defendant’s subsequent
history; (3) the similarity between the
past crime and the charged crime; (4) the
importance of the defendant’s testimony;
and (5) the centrality of the credibility
issue." United States v. Smith, 131 F.3d
685, 687 (7th Cir. 1997) (citing United
States v. Hernandez, 106 F.3d 737, 739-40
(7th Cir. 1997)). In this case,
Rodriguez’s prior conviction was for
possession with intent to distribute
400,000 Mandrax tablets in 1982, and
thus, like he charged offense, involves
the distribution of illegal drugs. See
United States v. Harding, 525 F.2d 84, 90
(7th Cir. 1975) (noting that the
similarity between a prior offense for
possession of 80 pounds of marijuana with
the present offense of the sale of one
gram of cocaine created a strong risk of
unfair prejudice). This prior conviction
was also an important factor in
determining Rodriguez’s credibility if he
took the stand. In this case, Rodriguez’s
theory of defense was not that he was
innocent of drug distribution, but that
he did not intend to join the charged
conspiracy. Thus, if he took the stand,
the prior conviction’s probative value
for determining credibility would
outweigh its prejudicial value for his
propensity to commit the charged crime.
See Harding, 525 F.2d at 88-90 (allowing
evidence of a similar prior drug offense
for the purpose of impeaching the
credibility of the defendant but not for
the purpose of showing a propensity to
commit the charged offense); see also
Smith, 131 F.3d at 687 (permitting the
introduction of evidence of prior similar
crimes as impeachment when credibility
was a key issue). Therefore, Rodriguez
cannot show that his counsel’s advice was
incorrect, much less unreasonable.

  Rodriguez relies upon Nichols v. Butler,
953 F.2d 1550 (11th Cir. 1992), as
holding that an attorney’s improper
advice concerning the right to testify
can result in ineffective assistance of
counsel. However, his reliance on this
case is misplaced. In Nichols, the court
found that a defendant received
ineffective assistance of counsel under
the Strickland factors when his counsel
prevented him from testifying in his own
defense. Id at 1554. Unlike the case at
hand, the court found that the attorney
in Nichols committed prejudicial error
when he actually coerced his client not
to testify by threatening to withdraw as
counsel if he did take the stand. Id. at
1553. Rodriguez does not assert that his
attorney coerced him not to testify, just
that his attorney erred in advising him
about the consequences of his testimony.

  As further evidence of his counsel’s
deficient performance, Rodriguez cites a
pretrial colloquy between his counsel and
the trial court judge where his counsel
failed to argue that the circumstances of
the two crimes were so similar that the
prior crime should be unavailable for
impeachment. Because of his counsel’s
failure to argue the issue, and his
advice not to testify because of the
possibility of impeachment with the prior
offense, he argues that he did not
receive a fair trial because the waiver
of his right to testify was unknowing and
involuntary, citing United States v. Poe,
352 F.2d 639, 640-41 (D.C. Cir. 1965)
("defendant was deprived of his right to
a fair trial when he did not testify,
because his counsel misinformed him of
the consequences of taking the stand").

  However, Poe does not support
Rodriguez’s argument. In Poe, the court
upheld a trial court’s ruling that a
defendant did not receive a fair trial
when his attorney incorrectly advised his
client that inadmissible evidence would
be used to impeach to his testimony. Id.
The court did not, however, hold that the
defendant had been denied effective
assistance of counsel under the Sixth
Amendment. Id. at 641. Instead, the case
set forth the rule that when the trial
judge himself finds that a defendant has
been denied a fair trial by reason of an
action or inaction by counsel, that
determination should not be disturbed
unless clearly erroneous. Id. In
addition, in that situation, prior to
defendant’s decision not to take the
stand, the trial court judge held that
the evidence that could have been used to
impeach the defendant was inadmissible.
See Poe v. United States, 233 F. Supp.
173, 175 (D.C., D.C. 1964). Here, the
government indicated during a pretrial
hearing that if Rodriguez testified, it
intended to introduce evidence of his
prior crimes. Unlike Poe, the judge
indicated that the evidence would likely
be admissible against Rodriguez, stating
that "such a prior conviction may have
more probative value for impeachment
purposes, and, therefore, would tend to
outweigh the prejudicial effect it would
have on the matter . . . ." The trial
judge, however, reserved judgment on the
issue pending Rodriguez’s decision to
take the stand in his own defense. Thus
it was probable, or at least undecided,
that Rodriguez’s past crimes could have
been used to impeach his testimony.
Failing to raise this argument, when it
was likely to fail, cannot be deemed to
be unreasonable behavior by an attorney.
See United States v. Cooke, 110 F.3d
1288, 1301 (7th Cir. 1997) (holding that
an attorney’s performance was not
objectively unreasonable due to a failure
to raise a meritless objection).

  Secondly, even if his counsel did err,
Rodriguez cannot satisfy the second prong
of Strickland by demonstrating that his
counsel’s alleged error rendered the
result of the proceedings suspect. See
Strickland, 466 U.S. at 694. In order for
Rodriguez to have testified without the
threat of impeachment due to his prior
crimes, his counsel would have had to
successfully argue the issue under Fed.
R. Evid. 609. We have already seen that
this outcome was unlikely. If, somehow,
Rodriguez had taken the stand, he argues
that he would have presented evidence
that he was trying to "rip off" his
fellow co-conspirators. However,
Rodriguez has not demonstrated that the
absence of this testimony rendered the
outcome of the trial suspect. In fact,
Rodriguez’s counsel was able to present
this defense without Rodriguez’s
testimony by showing that Rodriguez kept
$50,000 given to him by other co-
conspirators but never delivered the
hundreds of pounds of marijuana in
exchange. It is true that a defendant’s
testimony "in his own trial is unique and
inherently significant." Nichols, 953
F.2d at 1553. But this presumption,
standing on its own, is not enough to
show prejudice under Strickland.

  Rodriguez’s reliance on Nichols to show
prejudice is also misplaced. In that case
the court found that the lack of
testimony by the defendant was
prejudicial due to the scant amount of
evidence presented by the prosecution and
the lack of a defense presented by the
defendant’s counsel. Nichols, 953 F.2d at
1554. Unlike Nichols, however, Rodriguez
was able to present a defense and the
government introduced a significant
amount of evidence demonstrating his
guilt. This evidence included the
testimony of co-conspirators concerning
multiple drug transactions involving
Rodriguez, phone records, and recorded
phone calls made by Rodriguez in
furtherance of the conspiracy. In one of
those recorded calls he informed a co-
conspirator that he was "sitting on" 450
pounds of marijuana. Thus, in contrast to
Nichols, the government had substantial
evidence of Rodriguez’s guilt, and
Rodriguez, on the other hand, was able to
present additional evidence of his theory
of defense. Therefore Rodriguez failed to
establish that but for his counsel’s
alleged errors, the result of his trial
would have been different.

  Rodriguez also claims that his counsel’s
performance was substandard because he
effectively entered a guilty plea by
conceding that Rodriguez delivered ten
ounces of marijuana to Michael Cook, a
former conspirator who was, at the time,
in Texas cooperating with the government.
During the trial, Cook testified that
Rodriguez provided him with the ten
ounces of marijuana as proof of the
quality of his supply. Then, in closing
arguments, Rodriguez’s attorney conceded
that this drug delivery had occurred, but
argued that it was not in furtherance of
the conspiracy but rather part of
Rodriguez’s scheme to defraud Cook and
the other conspirators. Rodriguez argues
that this argument in closing,
accompanied by the failure of his trial
counsel to request a jury instruction
based on venue, ultimately required the
jury to find him guilty./8 However,
Rodriguez’s counsel’s concession did not
require a finding of guilty on the
conspiracy charge. Instead, it was a
reasonable element of his strategy to
show that Rodriguez was acting against
the conspiracy.

  Moreover, as this court has recognized,
lawyers may reasonably acknowledge, as
part of a trial strategy, that on a
particular count the evidence against
their client is overwhelming. See
Underwood v. Clark, 939 F.2d 473, 474
(7th Cir. 1991) (holding that a counsel’s
admission of guilt during closing
arguments was reasonable as a tactical
decision to gain favor with the jury).
Courts should not "second-guess trial
tactics that are rationally based."
United States v. Zarnes, 33 F.3d 1454,
1473 (citing United States v. Booker, 981
F.2d 289, 295 (7th Cir. 1992)). In
assessing the performance of counsel, "a
court must indulge a strong presumption
that counsel’s conduct falls within the
wide range of reasonable professional
assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action
’might be considered sound trial
strategy.’" Strickland, 466 U.S. at 689
(citation omitted). In this case, with
the large amount of evidence presented
against Rodriguez, this strategy appears
quite reasonable. If the jury had
believed his theory of defense, then he
would not have been guilty of a crime
involving over 1,000 kilograms of
marijuana, but instead only guilty of a
crime involving approximately 300 grams
of marijuana. This would have decreased
his maximum sentence from life
imprisonment to ten years. See 21 U.S.C.
sec. 841(b)(1)(A) & (D). In fact, the
trial court noted that Rodriguez’s
counsel’s closing argument was "actually
quite compelling." Because this tactic
was reasonable as trial strategy,
Rodriguez’s claim fails under Strickland.

  Finally, Rodriguez argues that we should
remand this case to the district court to
hold an evidentiary hearing on the issue
of his counsel’s effectiveness. Petitions
under 18 U.S.C. sec. 2255 typically
require an adversarial judicial hearing
when factual disputes exist. Stokes v.
United States, 652 F.2d 1, 2 (7th Cir.
1981) (citing United States v. Underwood,
577 F.2d 157 (1st Cir. 1978)). However, a
federal prisoner does not have an
automatic right to an evidentiary hearing
under this statute, and a court may deny
an evidentiary hearing "if the
allegations in the motion are
unreasonably vague, conclusory, or
incredible, or if the factual matters
raised by the motion may be resolved on
the record before the district court."
Oliver v. United States, 961 F.2d 1339,
1343 n.5 (7th Cir. 1992) (citing United
States v. Frye, 738 F.2d 196 (7th Cir.
1984)). A hearing would not have aided
the district court in ruling on
Rodriguez’s sec. 2255 motion. The court
had sufficient information, based on its
observations, the record, and the law, to
determine that Rodriguez had received
effective assistance of counsel. In
addition, the judge who presided over the
sec. 2255 motion also presided over
Rodriguez’s trial and sentencing. A judge
who sits in this position is "uniquely
suited to determine if a hearing [is]
necessary." See Patel v. United States,
19 F.3d 1231 (7th Cir. 1994).
Consequently, we affirm the district
court’s decision not to hold a hearing.

III. Conclusion

  Rodriguez’s petition to expand the
certificate of appealability to include a
claim under Apprendi is denied. He has
failed to make a substantial showing of a
denial of a constitutional right because
he waived the Apprendi issue by failing
to raise it in the district court. He was
procedurally barred from raising the
claim in post-judgment motions to amend
his claim because an amendment would have
violated the statute of limitations on
sec. 2255 motions. Also, because he
cannot show that his counsel’s
performance fell below an objective
standard of reasonableness or that his
performance prejudiced Rodriguez’s case,
we affirm the district’s court denial of
his sec. 2255 application alleging
ineffective assistance of counsel.

FOOTNOTES

/1 Rodriguez was convicted in 1977 of possession
with intent to distribute heroin and in 1983 of
conspiracy to possess with intent to distribute
over 400,000 Mandrax tablets. See United States
v. Rodriguez, 67 F.3d 1312, 1322, n.2 (7th Cir.
1995).

/2 Rodriguez raised the standard of review issue in
his petition for rehearing of Rodriguez I to this
court and in his petition for certiorari to the
United States Supreme Court, both of which were
denied. Judge Posner, in his dissent from the
order denying a rehearing en banc, stated that
the issue of what standard of proof is necessary
in determining sentencing factors such as drug
quantity was "a difficult and important question,
worth the attention of the full court. . . ."
United States v. Rodriguez, 73 F.3d 161, 162 (7th
Cir. 1996) (Judge Posner was joined by Judge
Diane Wood in his dissent and the panel voted 6-5
to deny the rehearing en banc).

/3 Rodriguez’s other claims are waived because he
failed to address them in his appellate brief.
See Sere v. Board of Trustees of the Univ. of
Illinois, 852 F.2d 285, 287 (7th Cir. 1988) ("It
is not the obligation of this court to research
and construct the legal arguments open to par-
ties, especially when they are represented by
counsel . . . . We consistently and evenhandedly
have applied the waiver doctrine when appellants
have failed to raise an issue in their opening
brief." (internal quotations and citations omit-
ted)).

/4 Rodriguez made this argument pursuant to a foot-
note in United States v. Jones, 526 U.S. 227, 243
n.6 (1999). In Jones, the Court stated that
"under the Due Process Clause of the Fifth Amend-
ment and the notice and jury trial guarantees of
the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty
for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reason-
able doubt."

/5 Rodriguez also makes several arguments in an
attempt to utilize the "cause and prejudice"
exception to the waiver rule. In United States v.
Lane, 267 F.3d 715, 721 (7th Cir. 2001), we held
that "parties who can show that they had cause
for failing to appeal directly and that they
suffered prejudice from this omission" are not
prohibited from raising claims in a habeas pro-
ceeding that were not raised on direct appeal.
Id. (citing Wainwright v. Sykes, 433 U.S. 72,
84-85 (1977)). We have not, however, applied this
exception to waivers that resulted from failures
to raise issues before the district court in
ahabeas proceeding prior to raising them on
appeal. See, e.g., Rittenhouse, 263 F.3d at 694.
Even if we were to consider the availability of
the cause and prejudice exception, Rodriguez has
not demonstrated that he could satisfy the stan-
dard. Rodriguez attempts to show cause for his
failure to raise the Apprendi claim by arguing
that this issue was conclusively decided on
direct appeal. He contends that, because we
denied his Apprendi claim in his initial appeal,
his argument would have necessarily failed on
habeas review under the law of the case doctrine,
citing Daniels v. United States, 26 F.3d 706,
711-12 (7th Cir. 1994) (holding that the law of
the case doctrine applies to habeas proceedings).
Because there was no change in the law between
his direct appeal and habeas petition, he argues,
the law of the case doctrine prevented him from
raising this claim. However, "even when the law
is against a contention, a litigant must make the
argument to preserve it for later consideration."
United States v. Smith, 241 F.3d 546, 548 (7th
Cir. 2001) (citing Engle v. Isaac, 456 U.S. 107,
130 n. 35 (1982), stating that the fact that a
legal argument would have been unpersuasive to a
given court does not constitute "cause" for
failing to present that argument). Even without
a change in law, Judge Posner’s comment in dis-
sent to the denial of the rehearing, supra n. 2,
indicated that on habeas review a court may have
reexamined the Apprendi issue. Additionally,
because neither the Supreme Court nor the Seventh
Circuit has held that Apprendi is retroactively
applicable on collateral attack, Rodriguez cannot
show prejudice from his omission. See Smith, 241
F.3d at 548.

/6 Under 28 U.S.C. sec. 2255 para.8, a petitioner
may file a second or successive application if it
would rest upon "a new rule of constitutional
law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable." The Supreme Court has not yet ruled
Apprendi retroactive for the purposes of second
applications, Talbott v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000), and therefore unless Rodri-
guez shows that his amendment relates back to his
initial petition, it is premature.
/7 Additionally, instead of denying the motion to
amend, the district court could have treated his
motion for leave to amend as a motion for leave
to file a second or successive sec. 2255 motion
and transferred the motion to this court. See
United States v. Espinoza-Saenz, 235 F.3d 501,
503 (10th Cir. 2000) (finding no error in dis-
trict court’s decision to transfer defendant’s
supplemental sec. 2255 motion to the appeals
court as second or successive motion where de-
fendant’s motion could not relate back under Fed.
R. Civ. P. 15(c) because it raised new claims).
Because the Supreme Court specifically has not
yet ruled Apprendi retroactive, we would deny
such a motion.

/8 Rodriguez argues that because the admitted drug
transaction occurred exclusively in Texas, his
counsel was deficient in not requesting a jury
instruction, or objecting to the lack of one,
that an overt act in furtherance of the conspira-
cy must be proven to have been committed in the
Eastern District of Wisconsin in order to estab-
lish proper venue. By not requiring a finding of
venue, he argues, the jury could have relied
solely on Rodriguez’s conceded drug transaction
in Texas as evidence of the existence of a
conspiracy in Wisconsin. However, this court has
already rejected Rodriguez’s venue argument,
holding that because Michael Cook traveled be-
tween Milwaukee and Houston in furtherance of the
conspiracy, venue was proper. Rodriguez I, 67
F.3d at 1317. Rodriguez’s counsel therefore
cannot be held ineffective for failing to request
a jury instruction that would not have been
given.
