230 F.3d 1041 (7th Cir. 2000)
Tommy L. Rutledge, Petitioner-Appellant,v.United States of America, Respondent-Appellee.
No. 99-1686
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 28, 2000Decided October 24, 2000

Appeal from the United States District Court for the Central District of Illinois, Rock Island Division.  No. 97-4054--Michael M. Mihm, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Bauer and Harlington  Wood, Jr., Circuit Judges.
Flaum, Chief Judge.


1
Tommy Rutledge appeals the  denial of his federal habeas petition. He  challenges the reinstatement of a vacated  conviction and raises various claims related to  the inadequate performance of both his trial and  habeas counsels. For the reasons stated herein,  we affirm the district court.

I.  Background

2
Petitioner Rutledge was indicted in February,  1991 on six counts related to running a narcotics  enterprise. The charges were conducting a  continuing criminal enterprise in violation of 21  U.S.C. sec. 848 ("CCE") ("Count I"); conspiring  to distribute cocaine in violation of 21 U.S.C.  sec. 846 ("Count II"); distribution of cocaine in  violation of 21 U.S.C. sec. 841(a)(1) ("Count  III"); possession of a firearm by a convicted  felon in violation of 18 U.S.C. sec. 922(g)  ("Count IV"); and using or carrying a firearm  during the commission of a drug offense in  violation of 18 U.S.C. sec. 924(c) ("Count V" and  "Count VI"). Kim Mummert, a member of Rutledge's  enterprise and his girlfriend at the time,  cooperated with the government, and testified  that on hundreds of occasions she saw Rutledge  give cocaine to other members of the organization  with instructions as to whom to deliver the  cocaine and how much money to collect. The  government sought to establish the distribution  count through Michael Wright, who testified that  he purchased cocaine from Rutledge on January 27,  1989. Following a jury trial, Rutledge was found  guilty of all six counts on June 25, 1992.  Rutledge received life imprisonment on the CCE  count, life imprisonment without the possibility  of parole for the conspiracy and distribution  counts, and ten years imprisonment for the felon  in possession of a firearm count, which were all  to run concurrently. Rutledge received five years  imprisonment for Count V and ten years  imprisonment on Count VI, which were to run  consecutively to each other and the other  sentences. Rutledge's convictions and sentences  were affirmed by this court on direct appeal.  United States v. Rutledge, 40 F.3d 879 (7th Cir.  1994). Following precedent in this circuit, we  held that Rutledge could be convicted of and  sentenced for both CCE and conspiracy to  distribute drugs, even though the latter is a  lesser included offense of the former, so long as  the sentences ran concurrently. Id. at 886.


3
The Supreme Court reversed, holding that because  conspiring to distribute drugs is a lesser  included offense of CCE either Count I or Count  II must be vacated. Rutledge v. United States,  517 U.S. 292, 307 (1996). The Supreme Court  remanded Rutledge's case to this court, and we  remanded to the district court with directions to  vacate either the CCE or conspiracy conviction.  The district court vacated the conspiracy  conviction and resentenced Rutledge on the  remaining five convictions, giving him the same  sentence for each conviction as it had after  trial.


4
In the months leading up to the district  court's decision on the 28 U.S.C. sec. 2255  motion which is the subject of this appeal,  Rutledge and the government filed a number of  motions and responses, of which only the ones  relevant to this appeal are mentioned. On April  24, 1997, Rutledge, acting pro se, filed a motion  pursuant to sec. 2255 to vacate his convictions  and correct his sentence. Among his other claims,  Rutledge asserted that he had received  ineffective assistance of counsel regarding his  distribution count because his trial counsel  failed to interview Mummert and Wright and  present an alibi defense.


5
On November 12, 1997, the district court  appointed counsel for Rutledge in order to  develop the arguments raised in his sec. 2255  motion. In a December 4 telephone conference, the  district court requested that counsel address  whether the court could reinstate Rutledge's  conspiracy conviction if it vacated his CCE  conviction. Rutledge's appointed attorney filed  a supplemental memorandum on March 26, 1998,  which provided additional and detailed legal  support for Rutledge's claims. On June 18, the  district court held a conference concerning  Rutledge's case. After discussion and debate with  counsel, the court tentatively announced parts of  its decision regarding Rutledge's claims. Among  other conclusions, the court indicated that it  would reject Rutledge's claim that his trial  counsel had been ineffective with respect to the  distribution charge.


6
On September 25, 1998, the court issued an  order granting in part and denying in part  Rutledge's sec. 2255 motion and resolved certain  other outstanding motions. Rutledge v. United  States, 22 F. Supp.2d 871 (C.D. Ill. 1998). The  court vacated the CCE conviction as well as  Counts V and VI, and reduced the sentence for  Count III (distribution) from life without parole  to thirty years. The court reinstated Count II,  the conspiracy conviction, rejecting Rutledge's  claims that he would be prejudiced by this  reinstatement because he received a harsher  sentence on Count II than Count I and that the  court lacked statutory jurisdiction to reinstate  a vacated sentence. The court also finalized its  rejection of Rutledge's arguments that his trial  counsel had been ineffective regarding the  distribution count. The court entered judgment on  October 16, 1998.


7
On October 2, 1998, the district court docketed  a September 20, 1998 letter from Rutledge to his  sec. 2255 counsel, a copy of which Rutledge had  sent to the court. This letter detailed ways in  which Rutledge believed his sec. 2255 counsel had  performed inadequately. Rutledge's letter claimed  that both his sec. 2255 and trial counsels failed  to interview witnesses including Wright, Mummert,  and Brandy Bolen. Attached to the letter were  various declarations from these witnesses or  persons who had talked to these witnesses. One  attachment was a transcript of an interview  between Bolen and a private investigator hired by  Rutledge, in which Bolen said that on January 27,  1989, Rutledge had left the area where the  distribution was supposed to have occurred before  Wright arrived.


8
On October 5, 1998, Rutledge's counsel filed a  timely motion to alter or amend the judgment.  Rutledge filed pro se motions to reconsider the  district court's decision on October 6, October  15, November 12, and November 25. On November 20,  the court docketed Rutledge's pro se motion to  strike the motion to alter or amend the judgment  filed by his attorney, to dismiss his appointed  counsel and proceed pro se, and to extend the  time to file his notice of appeal from the  court's ruling. The clerk of the court also  received a notice of appeal from Rutledge on or  shortly before November 23, but did not file this  in the district court docket.


9
The district court held a telephone conference  with Rutledge, his attorney, and the government  on November 25. The district court asked Rutledge  whether he wanted to file his notice of appeal,  which would divest the court of jurisdiction, or  proceed with a motion to alter or amend the  judgment under Federal Rule of Civil Procedure  60(b). Rutledge asked the court if he could  appeal after the consideration of his Rule 60(b)  motion. The government told the court that it did  not believe that Rule 60(b) motions tolled the  time for filing a notice of appeal. The court  stated that a miscarriage of justice would result  if Rutledge were not permitted to file his Rule  60(b) motion and appeal after the ruling on such  motion. Rutledge agreed to proceed with his Rule  60(b) motion and asked the court to withdraw his  notice of appeal. The court then granted  Rutledge's motion to proceed pro se. The court  also ruled that all of the motions to reconsider  had been withdrawn except for the one filed by  Rutledge on November 25, the day of the  conference. This November 25 motion included an  affidavit from Bolen stating that she would have  been willing to serve as an alibi witness on the  distribution count but had not been interviewed  by trial counsel.


10
The court denied Rutledge's motion to reconsider  on January 26, 1999. Rutledge had claimed that  his trial counsel was ineffective for not  interviewing Bolen. The court found that this was  the first mention of Bolen and that it was too  late to raise this issue in a motion to  reconsider. The court rejected Rutledge's  challenge to the court's jurisdiction to  reinstate the vacated conspiracy conviction,  finding that Rutledge had not raised this  argument in his sec. 2255 motion1 and that sec.  2255 provided statutory authority for the court's  action.


11
Rutledge filed a notice of appeal and an  application for a certificate of appealability on  March 15, 1999. On March 23, the district court  issued to Rutledge a certificate of appealability  for the issue of whether reinstating the  conspiracy conviction was proper, but denied a  certificate for Rutledge's various claims of  ineffective assistance of trial counsel.

II.  Discussion

12
Rutledge presents five issues in this appeal of  the denial of his sec. 2255 and Rule 60(b)  motions.2 The first, and only one for which he  was issued a certificate of appealability, is  whether the district court had jurisdiction to  reinstate the previously vacated conspiracy  conviction.


13
The second issue is whether the district court  should have conducted an evidentiary hearing  regarding Rutledge's claim that his trial counsel  was ineffective for failing to interview Mummert  and Wright. The third question is did the  district court err in not treating Rutledge's  September 20, 1998 letter as a motion to amend  his sec. 2255 petition. The fourth issue is  whether the district court abused its discretion  by denying the claims of ineffective assistance  of counsel argued in Rutledge's Rule 60(b)  motion. The district court did not grant a  certificate of appealability for these three  challenges. Rutledge's raising of these questions  is considered an implicit request for a  certificate of appealability from this court. See  Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595,  1603 (2000); Williams v. Parke, 133 F.3d 971, 975  (7th Cir. 1997). We will issue such a certificate  only if the petitioner makes a substantial  showing of the denial of a constitutional right.  28 U.S.C. sec. 2253(c)(2). Rutledge must show  either that reasonable jurists could debate  whether the challenges in his habeas petition  should been resolved differently or that his  petition adequately shows a sufficient chance of  the denial of a constitutional right that he  deserves encouragement to proceed further. See  Slack, 120 S. Ct. at 1603-04.


14
The fifth and final challenge, which Rutledge  raises for the first time on appeal, is whether  his sec. 2255 counsel was ineffective for failing  to interview and bring to the attention of the  court certain witnesses who supposedly would have  further supported Rutledge's claim that his trial  counsel was ineffective with respect to the  distribution charge.


15
A. Statutory Jurisdiction for Reinstatement of a  Vacated Conviction


16
Rutledge argues that no statute provides a  district court with the power to reinstate a  vacated conviction. Rutledge claims that the  district court erred by rejecting this challenge  in both his sec. 2255 and Rule 60(b) motions. We  review de novo the district court's legal  determination that it had jurisdiction to  reinstate a vacated conviction. See United States  v. Brisk, 171 F.3d 514, 519 (7th Cir. 1999).


17
While Rutledge raises an interesting challenge  to the district court's action, we conclude that  a district court does have statutory authority to  reinstate a vacated conviction.3 We begin with  the relevant language of sec. 2255


18
If the court finds that the judgment was rendered  without jurisdiction, or that the sentence  imposed was not authorized by law or otherwise  open to collateral attack, or that there has been  such a denial or infringement of the  constitutional rights of the prisoner as to  render the judgment vulnerable to collateral  attack, the court shall vacate and set the  judgment aside and shall discharge the prisoner  or resentence him or grant a new trial or correct  the sentence as may appear appropriate.


19
(emphasis added). Admittedly, nothing in this  language directly and explicitly states that a  vacated conviction can be reinstated, but such a  statement is unnecessary. The terms "resentence"  and "correct the sentence as may appear  appropriate" are both grants of broad and  flexible power to the district court.4 See  United States v. Hillary, 106 F.3d 1170, 1171-72  (4th Cir. 1997). These terms encompass  reinstating a vacated conviction as part of the  process of correcting the sentence, if such an  act would be proper. Reinstating Rutledge's  conspiracy conviction would be appropriate here  because that conviction does not suffer from any  procedural or substantive defect, but was vacated  only because it was an included offense of the  CCE conviction. In these circumstances, sec.  2255's language granting the power to resentence  or correct the sentence as may appear appropriate  provides district courts with a jurisdictional  basis to reinstate the vacated conviction for the  included offense.


20
Our prior cases permitting district courts to  increase sentences for particular convictions  after a successful sec. 2255 motion support this  holding, though these decisions are not exactly  analogous since vacated convictions were not  involved. The word "sentence" in sec. 2255 refers  to the entire package of terms that the defendant  receives for his convictions. See United States  v. Walker, 118 F.3d 559, 561 (7th Cir. 1997);  United States v. Smith, 103 F.3d 531, 534 (7th  Cir. 1996). A defendant cannot have a legitimate  expectation in the finality of his or her  sentence when he or she uses a sec. 2255 motion  to challenge his or her convictions. See  Woodhouse v. United States, 109 F.3d 347, 348  (7th Cir. 1997). If a defendant successfully  challenges some of his or her convictions on a  sec. 2255 motion, the district court may adjust  the remainder of the package by resentencing the  defendant on the remaining convictions, which  includes increasing the sentences on those  counts.5 See United States v. Binford, 108 F.3d  723, 728-29 (7th Cir. 1997); Smith, 103 F.3d at  534. At least in circumstances where a conviction  was vacated only because it is an included  offense of another conviction, this vacated  conviction should be considered part of the  sentencing package which the defendant has  challenged, and so subject to reinstatement if  the conviction in which it is included also is  vacated.


21
The Supreme Court's opinion reversing our  judgment in Rutledge's case is instructive on  whether a district court can reimpose a vacated  conviction. The government argued that both the  CCE and conspiracy convictions should stand  because this would prevent a defendant who  successfully challenges one of these from  escaping punishment. 517 U.S. at 305. In  rejecting this argument, the Court explained that  the lower courts had already developed methods to  resolve such problems. Id. at 305-06. In  particular, the Court favorably cited the opinion  in United States v. Silvers, 888 F. Supp. 1289,  1306-09 (D. Md. 1995), aff'd in relevant part, 90  F.3d 95 (4th Cir. 1996), where the district court  reinstated a previously vacated conspiracy  conviction after vacating and granting a new  trial on the defendant's CCE conviction. The  Court's passage might be considered dictum, but  it represents the Court's considered view on an  issue related to its holding and should be  followed unless it conflicts with a holding of  the Court. See United States v. Bloom, 149 F.3d  649, 653 (7th Cir. 1998). Thus, the Supreme Court  has validated the precise action of the district  court in the instant case. Rutledge correctly  points out that neither the Court's opinion in  Rutledge nor the lower court opinion in Silvers  discuss the statutory basis for such action by  the district court. However, given the broad  language of sec. 2255, we will not say that the  district court lacked jurisdiction for an act  explicitly approved by the Supreme Court.


22
Besides this language in the higher court's  Rutledge opinion, our decision also has  substantial support in precedents that have  addressed the question of whether a district  court can reinstate a vacated conviction. The  majority of courts to consider this issue have  found that districts courts do have such power.  See Silvers, 90 F.3d at 101; United States v.  Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991);  United States v. Niver, 689 F.2d 520, 531 (5th  Cir. 1982); see also United States v. West, 201  F.3d 1312 (11th Cir. 2000) (vacating defendant's  CCE conviction and remanding to district court  with instruction to reinstate previously vacated  conspiracy conviction); United States v. Butera,  677 F.2d 1376, 1386 (11th Cir. 1982) (stating  that a vacated conviction can be reinstated  without specifying which court can do so); United  States v. Hooper, 432 F.2d 604 n.8 (D.C. Cir.  1970) (same). Again, while these cases do not  explicitly address the question of statutory  jurisdiction, we are unwilling to conclude that  all of these opinions are wrong given that the  reinstatement of a previously vacated conviction  fits within the language of sec. 2255. We have  carefully and thoughtfully considered the  statement that district courts cannot reinstate  convictions made in United States v. Medina, 940  F.2d 1247, 1253 (9th Cir. 1991), but find it  unpersuasive in light of the Supreme Court's  opinion in Rutledge and our own analysis.


23
One last concern remains regarding the  reinstatement of Rutledge's conspiracy  conviction. Rutledge asks that we remand his case  to the district court so that he may challenge  his conspiracy conviction, which he had not done  previously because the conviction had been  vacated. A court should notify the defendant that  it is contemplating reinstating a vacated  conviction before it renders its decision in  order to give the defendant the opportunity to  challenge any reinstated convictions. However, in  the facts of this case Rutledge was given just  such an opportunity. The district court raised  the question of reinstating Rutledge's conspiracy  conviction in a December 4, 1997 telephone  conference. From this point forward, Rutledge was  on notice that the reinstatement of his Count II  conviction was a distinct possibility. Rutledge  had almost ten months between this conference and  the lower court's decision, during which  Rutledge's counsel filed a supplemental  memorandum in support of the sec. 2255 petition,  to challenge the propriety of his conspiracy  conviction. Furthermore, after the court's  decision actually reinstating the Count II  conviction, Rutledge filed a Rule 60(b) motion,  but again did not question the substance of this  conviction. Thus, Rutledge has forfeited any  objection to his reinstated conspiracy  conviction.

B.  Ineffective Assistance of Trial Counsel

24
Rutledge argues that his trial counsel was  ineffective because he did not interview Mummert  and Wright before trial and so did not try to  establish an alibi defense to the distribution  count based on their statements. Rutledge further  argues that he was prejudiced by trial counsel's  supposed deficiencies because the government's  evidence on the distribution charge was weak,  consisting of only Wright's testimony.


25
To succeed on an ineffective assistance of  counsel claim, the defendant must first show that  counsel's performance fell below an objective  standard of reasonableness and secondly  demonstrate that this deficient performance so  prejudiced the defendant that he or she was  deprived of a fair trial. See Strickland v.  Washington, 466 U.S. 668, 687-88 (1984); United  States v. Trevino, 60 F.3d 333, 338 (7th Cir.  1995). Regarding the first prong, the defendant  must base his or her claim on specific acts or  omissions by his or her counsel. Strickland, 466  U.S. at 690; Trevino, 60 F.3d at 338. The court,  beginning with a strong presumption in favor of  adequate assistance, then determines whether  these acts or omissions fall outside the wide  range of professionally competent assistance.  Strickland, 466 U.S. at 690; Trevino, 60 F.3d at  338. An attorney's performance is satisfactory  only if he or she makes a reasonable investigation of the principal facts of the  defendant's case or makes a reasonable decision  that particular investigations are unnecessary,  Strickland, 466 U.S. at 691, though an attorney  need not investigate every evidentiary  possibility before choosing a defense, see  Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th  Cir. 1987). Whether a decision to forego more  investigation is reasonable is analyzed from the  perspective of counsel at the time of the  decision and in light of all the circumstances.  See Kimmelman v. Morrison, 477 U.S. 365, 384  (1986); Williams v. Washington, 59 F.3d 673, 680  (7th Cir. 1995). The failure to interview  witnesses can constitute deficient performance in  particular cases. See, e.g., Montgomery v.  Petersen, 846 F.2d 407, 414 (7th Cir. 1988). To  satisfy the second requirement of an ineffective  assistance of counsel claim, the defendant must  show that counsel's deficient performance  rendered the jury's verdict unreliable or the  proceeding fundamentally unfair, depriving the  defendant of some procedural or substantive  right. See Lockhart v. Fretwell, 506 U.S. 364,  372 (1993).


26
Rutledge's trial counsel made a reasonable  decision not to interview Mummert.6 Mummert, a  prosecution witness, had extensive personal  knowledge of Rutledge's drug enterprise. At  trial, among other evidence, Mummert testified  that she saw Rutledge give cocaine to other  defendants to sell with instructions on what the  price should be, that he possessed various  paraphernalia for measuring cocaine, that he  often had large amounts of cash, and that he  owned various firearms. Her testimony provided  the government with strong evidence on the CCE,  conspiracy, and firearms counts, which is to say  every charge against Rutledge except the  distribution count. We assume that Rutledge's  trial counsel had some idea of what evidence she  would provide against Rutledge. Knowing this,  counsel made a reasonable strategic choice to  attack Mummert's credibility, and he did so in  his cross-examination by pointing out numerous  inconsistencies in her statements and  contradictions between her trial and grand jury  testimony. Counsel planned to lessen the impact  of Mummert's evidence on the CCE, conspiracy, and  firearms charges by trying to demonstrate to the  jury that Mummert was an unreliable witness whose  entire testimony was fabricated. This attack on  Mummert's credibility, which counsel reasonably  decided was necessary to counter Mummert's  testimony supporting every charge except  distribution, would have also affected any  testimony favorable to Rutledge that she might  have provided. Thus, interviewing her in an  attempt to get exculpatory information for the  distribution charge would have been fruitless,  and counsel's decision not to do so is  objectively reasonable. See Strickland, 466 U.S.  at 691. Cases where an attorney has been held to  be ineffective for failing to interview witnesses  are distinguishable since they all involve  potential witnesses who were not called at all  and whose probable testimony appeared to be  wholly favorable to the defendant. See, e.g.,  Williams, 59 F.3d at 676, 681-82; Montgomery, 846  F.2d at 409, 413-14.


27
We also reject Rutledge's somewhat puzzling  claim that his trial counsel provided ineffective  assistance by not interviewing Wright in an  attempt to establish an alibi defense to the  distribution charge. Like Mummert, Wright was a  prosecution witness. Among his other testimony,  Wright stated at trial that he purchased cocaine  from Rutledge in late January, 1989. To put the  point simply, Wright was unlikely to provide  Rutledge with an alibi for the distribution  charge given that Wright's statements were the  primary evidence against Rutledge on this charge.  Again assuming that Rutledge's trial counsel had  some idea of Wright's testimony, counsel could  have reasonably concluded that interviewing  Wright would have been pointless. Unless counsel  could have made Wright reverse the testimony that  he was prepared to give, Wright was not going to  establish an alibi for Rutledge. Counsel's  attempts to discredit Wright and show that he had  testified as part of a plea bargain were  reasonable strategic choices, and constitute  effective assistance of counsel. Rutledge has not  made a substantial showing that he has been  denied a constitutional right because his trial  counsel was ineffective for failing to interview  Wright or Mummert, and so we will not grant a  certificate of appealability on Rutledge's  claim.7


28
C. Rutledge's Letter as an Amendment to his sec.  2255 Motion


29
Rutledge claims that his September 20, 1998  letter, which described the testimony of  witnesses, including Bolen, that neither his  trial nor sec. 2255 counsel had interviewed, was  sent before the district court's decision and  should be treated as an amendment to his habeas  petition. Rutledge claims that the "mailbox rule"  applies, and so the letter should have been  considered received by the court whenever he  handed it to the prison authorities, rather than  October 2, 1998, after the district court's  ruling, which is the date the letter was docketed  by the clerk. Rutledge asks that we remand the  case so that the lower court can determine when  the letter was given to prison authorities and  address Rutledge's additional claims.


30
Until a final ruling has been issued, a  district court must consider a petitioner's  request to amend his sec. 2255 motion, though the  court need not grant the requested amendments.  See Johnson v. United States, 196 F.3d 802, 805-  06 (7th Cir. 1999). A district court can refuse  to let the defendant amend the petition for  reasons such as delay or because a defendant  represented by counsel is not filing the proposed  amendments through his or her attorney. Id. at  805. The district court in this case did not  consider amending the sec. 2255 motion based on  Rutledge's letter. However, we find that it was  not required to do so. Rutledge's arguments  suffer from two defects: the mailbox rule does  not apply in his case, and his letter was not a  motion to amend.


31
Houston v. Lack, 487 U.S. 266 (1988)  establishes that certain notices or motions of  pro se prisoners should be considered filed when  these are given to prison authorities, rather  than when received by the court; this is known as  the "mailbox rule." Houston applied the rule to  a notice of appeal, id. at 276, and it has been  extended to cover various other filings, see  Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir.  1999). We have not extended the rule to motions  to amend, and we need not reach that issue  because the mailbox rule does not apply for  another reason: Rutledge was not pro se when he  mailed the letter. In adopting the mailbox rule,  the opinion in Houston emphasizes the special  difficulties faced by pro se prisoners. See 487  U.S. at 270 ("The situation of prisoners seeking  to appeal without the aid of counsel is  unique."), 271 ("Pro se prisoners cannot take any  of these precautions [to ensure timely filing];  nor, by definition, do they have lawyers who can  take these precautions for them."). The opinion  also repeatedly stresses the possible unfairness  of forcing prisoners to rely on prison  authorities to deliver their legal papers in a  timely manner. Id. at 271, 273-76. However, a  prisoner represented by counsel can have that  attorney file whatever motions or notices the  prisoner desires, and so does not need to rely on  prison authorities. Therefore, we hold that the  mailbox rule does not apply to prisoners who are  represented by counsel. See Nichols v. Bowersox,  172 F.3d 1068, 1074 (8th Cir. 1999) ("The prison  mailbox rule traditionally and appropriately  applies only to pro se inmates who may have no  means to file legal documents except through the  prison mail system.").


32
Because Rutledge's letter was docketed by the  clerk on October 2, the court probably received  the letter either that day or the day before.  Even if Rutledge's mailing reached the courthouse  on October 1, this was several days after the  district court's ruling. Rutledge's habeas  counsel was still representing him at this time,  and so the mailbox rule does not apply.  Therefore, Rutledge's letter was not timely  filed, and the district court was under no duty  to consider whether this correspondence amended  his sec. 2255 motion.


33
Rutledge's claim also fails for an independent  reason: the letter in question is only a letter,  and not a motion to amend. According to its own  language, this correspondence was sent as an  attempt to shame Rutledge's appointed sec. 2255  counsel into complying with Rutledge's requests  and apparently to create a record to claim that  the sec. 2255 counsel was ineffective. The letter  is not titled as a motion, and nowhere does it  state that Rutledge was seeking to amend his sec.  2255 motion. Furthermore, the letter was copied  not only to the district court judge but also to  the chief judge of this circuit, which would be  improper if this correspondence were intended as  an amendment. The rule that pro se pleadings are  to be interpreted liberally, see McNeil v. United  States, 508 U.S. 106, 113 (1993), cannot help  Rutledge since he was represented by counsel at  the time he sent the letter. Further, Rutledge is  a veteran of pro se litigation, having filed (so  far) roughly fourteen pleadings in this case  without the aid of counsel. Rutledge knows how to  file a proper motion, and he should have done so  if he intended to amend his sec. 2255 petition.


34
For these two reasons, we find that Rutledge  has not made a substantial showing that he was  deprived of a constitutional right when the  district court did not consider his untimely  letter as a motion to amend, and thus do not  issue a certificate of appealability for this  question.

D.
Rule 60(b) Motion

35
Rutledge argues that the district court abused  its discretion by finding that Rutledge should  have raised the claim that trial counsel was  ineffective for failing to interview Bolen  earlier and so denying Rutledge's Rule 60(b)  motion. Rutledge initially mentioned Bolen in his  September 20, 1998 letter, but we have already  determined that this mailing did not operate as  a proposed amendment to his sec. 2255 motion.  Therefore, Rutledge first raised this claim  involving Bolen in his Rule 60(b) motion.


36
Rule 60(b) relief is an extraordinary remedy  granted only in exceptional circumstances. See  Dickerson v. Board of Educ. of Ford Heights,  Ill., 32 F.3d 1114, 1116 (7th Cir. 1994). Rule  60(b) motions cannot be used to present evidence  that with due diligence could have been  introduced before judgment on the motion from  which the party is seeking relief. See Caisse  Nationale de Credit Agricole v. CBI Industries,  Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).  Rutledge submitted an affidavit from Bolen with  his Rule 60(b) motion. Bolen claims that she is  a friend of Rutledge and has known him for thirty  years. She states she was with Rutledge at a bar  on January 27, 1989, and so he could not have  sold drugs to Wright on that day. Presently,  Bolen lives at the same address as she did in  1989 and claims that her whereabouts were  generally known. Given her longstanding  friendship with Rutledge and the ease with which  she asserts she could have been found, Rutledge  should have raised his ineffective assistance  claim based on his trial counsel's failure to use  her as an alibi witness in his sec. 2255 motion.  Thus, Rutledge has not made a substantial showing  that his constitutional rights were denied.


37
E.  Ineffective Assistance of sec. 2255 Counsel


38
Rutledge's final challenge is that his sec.  2255 counsel was ineffective for failing to  present an argument to the district court that  trial counsel was ineffective because he did not  interview the alibi witnesses mentioned in  Rutledge's September 20, 1998 letter. We describe  above the basic legal standards for an  ineffective assistance of counsel claim; however,  a few additional points are relevant here.  Because this court does not take any new  evidence, the defendant's attempt to show  ineffective assistance of sec. 2255 counsel is  limited to the record developed below. See United  States v. Penass, 997 F.2d 1227, 1229 (7th Cir.  1993). Isolated errors do not constitute  ineffective assistance if the attorney's work  product taken as a whole demonstrates competence.  See Dahler v. United States, 143 F.3d 1084, 1086  (7th Cir. 1998). "[T]he Constitution calls for a  professionally competent defense, not for the  best possible defense." Holman v. Gilmore, 126  F.3d 876, 883 (7th Cir. 1997).


39
Even if perhaps sec. 2255 counsel should have  attempted to bring additional claims of  ineffective assistance based on additional  potential alibi witnesses, we find that sec. 2255  counsel was not constitutionally ineffective. The  distribution charge was one of only six  convictions that Rutledge and his counsel  challenged. Section 2255 counsel filed a  comprehensive supplemental memorandum providing  legal support for all of the claims in Rutledge's  petition. He competently briefed and orally  argued at hearings a number of open questions,  such as whether Rutledge's CCE conviction and  felon in possession counts should be vacated. He  vigorously presented Rutledge's claim that the  distribution count should be vacated because  trial counsel failed to interview Mummert.  Finally, sec. 2255 counsel achieved a significant  degree of success on behalf of Rutledge. Three of  Rutledge's convictions were vacated, and his  sentence for another conviction was reduced.


40
We also note that sec. 2255 counsel's possible  failure in not bringing the additional potential  alibi witnesses named in Rutledge's September 20,  1998 letter to the attention of the district  court may primarily be the fault of Rutledge.  Rutledge's original motion does not mention any  alibi witnesses besides Mummert and Wright, nor  did Rutledge ever attempt to amend his motion to  bolster his ineffective assistance claim by  adding such witnesses. Rutledge might not have  told his sec. 2255 counsel of these witnesses  until immediately before the district court's  decision. Thus, not only was sec. 2255 counsel's  overall performance competent for constitutional  purposes, he may not have known of these  additional witnesses until any attempt to amend  the motion would have been too late to aid  Rutledge.

III.  Conclusion

41
Section 2255 provides the statutory jurisdiction  for the district court to reinstate Rutledge's  previously vacated conspiracy conviction.  Rutledge's various claims based on ineffective  assistance of counsel are without merit and do  not make a substantial showing that he was denied  any constitutional rights. Therefore, the  judgment of the district court is


42
Affirmed.



Notes:


1
 In the supplemental memorandum in support of the  sec. 2255 motion filed by his appointed attorney,  Rutledge stated that he was unable to locate any  statute authorizing the court to reinstate a  vacated conviction, but did not develop this  argument.


2
 Rutledge's appeal of the denial of his sec. 2255  motion normally would be untimely. The district  court entered its judgment on October 16, 1998.  Rutledge's counsel had already filed a motion to  alter or amend the judgment on October 5, which  we characterize as a Fed.R.Civ.P. 59(e) motion  because it was filed within ten days of the entry  of judgment. See United States v. 47 West 644  Route 38, Maple Park, Ill., 190 F.3d 781, 783  (7th Cir. 1999). The time for appeal is tolled  during the pendency of a Fed.R.Civ.P. 59(e)  motion. Fed.R.App.P. 4(a)(4)(A)(iv). However,  Rutledge withdrew this motion on November 25, at  which point the only outstanding motion was one  under Fed.R.Civ.P. 60(b) which was filed on  November 25. As the government pointed out to the  court, the time to file a notice of appeal is not  tolled during the consideration of a Fed.R.Civ.P.  60(b) motion. See Mares v. Busby, 34 F.3d 533,  535 (7th Cir. 1994). Rutledge should have filed  his notice of appeal with the district court no  more than sixty days after November 25.  Fed.R.App.P 4(a)(1)(B). Thus, his March 16, 1999  notice of appeal would be untimely under usual  circumstances and so we would consider only his  appeal from the denial of his Fed.R.Civ.P. 60(b)  motion and not from his sec. 2255 petition.  However, the district court explicitly assured  Rutledge that the court would first consider his  Fed.R.Civ.P. 60(b) motion and that after the  ruling on that motion Rutledge would have the  opportunity to appeal. Also, Rutledge had sent  the court a notice of appeal which was received  on or before November 23, which would have been  timely, but withdrew it after the court told him  that he could appeal after the court ruled on the  Fed.R.Civ.P. 60(b) motion. Because of the lower  court's affirmative assurances that Rutledge  would be given an opportunity to appeal after the  court considered his Fed.R.Civ.P. 60(b) motion,  the doctrine of unique circumstances applies, and  Rutledge has not forfeited his sec. 2255 appeal.  See Hope v. United States, 43 F.3d 1140, 1143  (7th Cir. 1994). The date when the clock for the  notice of appeal began running was January 26,  1999, when the court denied Rutledge's  Fed.R.Civ.P. 60(b) motion, and so his March 16  notice will be considered timely and we will  address the issues he raises regarding his sec.  2255 motion. However, our consideration of  Rutledge's sec. 2255 appeal is not an endorsement  of the district court's extension of the time for  filing a notice of appeal.


3
 Rutledge does not raise any constitutional  challenge regarding this issue, presumably  because the Double Jeopardy Clause does not bar  reinstatement of a conviction on a charge for  which a jury returned a guilty verdict. See  United States v. Wilson, 420 U.S. 332, 344-45  (1975).


4
 Furthermore, habeas corpus is an equitable  remedy, and the Supreme Court has made certain  deviations from the language of sec. 2255 to  apply principles of equity to federal habeas  petitions. See Schlup v. Delo, 513 U.S. 298, 319-  20 (1995). However, we need not stray from the  language of the statute to resolve Rutledge's  challenge to the district court's jurisdiction.


5
 A defendant may have a legitimate expectation  that his or her total sentence will not be  increased after a successful habeas petition,  such that he or she probably cannot be  resentenced to a total term longer than the  original sentence. See United States v. Bentley,  850 F.2d 327, 328 (7th Cir. 1988). Because of the  distribution and armed drug trafficker  convictions, Rutledge's total sentence prior to  his sec. 2255 motion was life imprisonment  without the possibility of parole plus fifteen  years. After his motion, his sentence was only  life imprisonment without the possibility of  parole based on his conspiracy conviction. Thus,  no legitimate expectation of Rutledge in the  finality of his sentence was disturbed when his  conspiracy conviction was reinstated.


6
 The government argues that the trial transcript  shows that Rutledge's trial counsel did in fact  interview Mummert. The record shows that Mummert  met with Rutledge's attorney to discuss paying  Rutledge's legal bills. At trial, Rutledge's  counsel asked Mummert whether she had told him  that two of Rutledge's co-defendants were setting  up Rutledge, and she testified that she could not  recall any such statement. The district court  sustained the prosecution's objection to any  further questioning about this conversation.  While the question of Rutledge's counsel does  cast some doubt on whether he failed to interview  Mummert regarding the substance of Rutledge's  case, the record does not provide any evidence  that he questioned Mummert regarding Rutledge's  whereabouts on January 27, 1989. We give Rutledge  the benefit of the doubt and will assume that  Rutledge's counsel did not interview Mummert in  an attempt to get information that would  exculpate Rutledge on the distribution charge.


7
 Rutledge's briefs to this court primarily provide  discussion relevant only to the prejudice prong  of the Strickland test. Since we find that trial  counsel's representation of Rutledge satisfies an  objective standard of reasonableness, we do not  reach these arguments.


