                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 8 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                    No. 01-1178
                                             (D.C. Nos. 92-CR-335, 97-N-881)
 ANTHONY CARLOS TORRES,                                  (D. Colo.)

           Defendant-Appellant.


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                    No. 01-1187
                                             (D.C. Nos. 97-N-881, 92-CR-335)
 EDWARD GRAVES,                                          (D. Colo.)

           Defendant-Appellant.




                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
                               Appeal No. 01-1178 1

      Appellant Anthony Carlos Torres, a federal inmate appearing pro se, seeks

a Certificate of Appealability (COA) to appeal the district court’s order

dismissing his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Because Mr. Torres

has not “made a substantial showing of the denial of a constitutional right,” we

deny his request for a COA and dismiss his appeal. 28 U.S.C. § 2253(c)(2).

      Mr. Torres was charged with one count of conspiracy to distribute more

than fifty grams of crack cocaine, one count of distribution of more than five

grams of crack cocaine, and nine counts of laundering proceeds of the crack

cocaine sales. Mr. Torres had entered into a plea agreement with the government

under which he would serve 121 months. In a brief hearing, the trial judge

refused to accept the agreement because the attorneys had violated the judge’s

local rule requiring submission of such agreements ten days before trial and that,

in any event, he was not accepting any Fed. R. Crim. P. 11(e)(1)(C) plea



assistance in the determination of these appeals. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The causes are therefore ordered submitted without oral
argument.
      1
       Although appellants filed separate § 2255 motions, their arguments on
appeal raise, in part, substantially related issues. As the appellants were co-
defendants, resolution of those issues relies on identical facts and a common
record; accordingly, we have companioned these appeals for disposition. See
Fed. R. App. P. 3(b).

                                        -2-
agreements. See United States v. Robertson, 45 F.3d 1423, 1433–34 (10th Cir.

1995) (providing background and details of the case). Upon entering a

subsequent unconditional plea of guilty to the charges in the indictment, the

district court sentenced Mr. Torres to 280 months which sentence was affirmed by

this Court on direct appeal. See id. at 1450.

      Mr. Torres filed a § 2255 motion in the district court, advancing six

grounds for relief. The district court, however, found that petitioner had

conceded three of those grounds in his reply to the Government’s response. Doc.

114 at 5 (Order Denying § 2255 Motion). The district court framed the three

remaining issues as follows: (1) Was the conspiracy properly charged? (2) Was

trial counsel ineffective for her advice that a career offender enhancement under

the sentencing guidelines would not apply? and (3) Was trial counsel ineffective

for failing to timely file a plea agreement more favorable to Mr. Torres than the

agreement into which he ultimately entered?

      The district court properly rejected the defective indictment argument on

the ground that Mr. Torres had waived such arguments by entering an

unconditional plea of guilty. See United States v. Davis, 900 F.2d 1524, 1525–26

(10th Cir. 1990) (unconditional guilty plea waives all non-jurisdictional

defenses). As to Mr. Torres’s second contention, the district court assumed for

argument’s sake that defense counsel did indeed inform Mr. Torres that no career

offender enhancement would apply. Once the court received the presentence

                                         -3-
report from the probation department it was revealed that the enhancement did

apply, thus establishing that defense counsel’s assumed advice was incorrect. The

district court noted, however, that the plea agreement specifically stated that

“[t]he criminal history category is more completely and accurately determined by

the Probation Department,” and that the court had informed Mr. Torres of the

uncertain nature of his plea agreement. Doc. 114 at 6. Further, the district court

found that counsel’s conduct fell within the requisite range of reasonableness

because, “in light of the practice in this district,” defense counsels’ sentence

estimates often deviate from the ultimate determinations by the Probation

Department. Id. at 7. As such, the court found that there was no way the

assumed erroneous advice could have misled or prejudiced Mr. Torres. Finally,

the district court rejected Mr. Torres’s third argument because the trial court had

rejected all Rule 11(e)(1)(C) plea agreements anyway, thus, any untimely filing of

the plea agreement could not have resulted in prejudice under the standards set

forth in Strickland v. Washington, 466 U.S. 688, 691–92 (1984).

      Before this court, Mr. Torres raises a number of arguments—some old,

some new. To begin, he again raises a claim that the indictment was defective

because it failed to include the “time frame” of the conspiracy as one of the

elements of the conspiracy charge. He attempts to avoid the waiver effect of his

unconditional guilty plea by couching his claim within arguments asserting a lack

of a knowing and voluntary plea of guilty. See Boykin v. Alabama, 395 U.S. 238,

                                         -4-
242 (1969). Mr. Torres also uses his defective indictment claim to buttress his

contention that he received ineffective assistance of counsel, asserting that

counsel should have been aware of the defective indictment, and, therefore,

unreasonably advised him to plead guilty.

      Mr. Torres’s ineffective assistance of counsel claim relies upon the

following remaining alleged failures on the part of defense counsel: (1) failing to

object to the trial court’s failure to comply with Fed. R. Crim. P. 32 at the

sentencing hearing; and (2) the government’s breach of the first plea agreement.

This is the first time Mr. Torres has raised either of these arguments, and we

decline to consider them for the first time on appeal. See Roberts v. Roadway

Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998). As a result, Mr. Torres’s

claim of ineffective assistance of counsel is rejected.

      Mr. Torres peppers his brief throughout with arguments that the career

offender enhancement resulted in a sentence that unconstitutionally exceeded the

statutory maximum and therefore contradicted either Apprendi v. New Jersey, 530

U.S. 466 (2000), or United States v. LaBonte, 520 U.S. 751 (1997). See Aplt. Br.

at 4–5, 10, 12–13. First, as the district court found, Mr. Torres first raised his

Apprendi argument in a proposed amendment filed more than a year after filing

his original petition. Because the Apprendi claim was factually and legally

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

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

                                          -5-
untimely. See United States v. Espinoza-Saenz, 235 F.3d 501, 503–05 (10th Cir.

2000). Petitioner’s argument that his sentence is inconsistent and irrational

because the statutory enhancements were outside the offense statutory maximum,

and therefore violates LaBonte, is without merit. LaBonte held specifically that

the term “maximum term authorized” includes statutory enhancements (such as

the career offender enhancement). 520 U.S. at 757–58.

      Finally, Mr. Torres’s contention that the district court clearly erred in

refusing to reduce his sentence is raised here for the first time. As such, we

decline to consider that argument. See Roberts, 149 F.3d at 1104.

      Having reviewed Mr. Torres’s request for a COA, his appellate brief, the

district court’s order, and the appellate record, we conclude that he has failed to

make the required showing for a COA.

      Accordingly, we DENY Mr. Torres’s motion for a COA and DISMISS his

appeal.



                                Appeal No. 01-1187

      In this related appeal, Mr. Graves, also a federal inmate appearing pro se,

seeks a COA and in addition seeks a motion allowing him to proceed on appeal in

forma pauperis (“IFP”). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(a). Because Mr. Graves has not “made a substantial showing of the denial

of a constitutional right,” we deny his request for a COA and dismiss his appeal.

                                         -6-
Id. § 2253(c)(2).

      In a jury trial, Mr. Graves was convicted of conspiracy to distribute crack

cocaine and sentenced to a prison term of 360 months. In his § 2255 petition

filed in the district court, Mr. Graves asserted ineffective assistance of counsel

alleging that his trial attorney provided ineffective assistance because he failed to

convey a plea offer from the Government and allowed an unspecified plea

deadline to lapse. The district court found Mr. Graves’s description of the

supposed plea offer to be vague and unspecific and therefore concluded that Mr.

Graves could not overcome the presumption that counsel made sound strategic

decisions and that counsel’s conduct fell within the wide range of reasonable,

professional assistance. See Strickland v. Washington, 466 U.S. 668, 689 (1984).

Turning to whether counsel’s conduct would have changed the outcome and

thereby establish prejudice, id. at 691, the district court noted that it was unlikely

the court would have accepted the supposed plea agreement. As discussed in

relation to Mr. Torres, No. 01-1178, supra, prior to trial the district court had

stated that it was not accepting any Fed. R. Crim. P. 11(e)(1)(C) plea agreements.

We agree with the district court that Mr. Graves’s claims failed to establish either

a lack of reasonable assistance of counsel or prejudice.

      Mr. Graves also attempted to amend his original petition by adding a

contention that he received a sentence in excess of the statutory maximum which

violated the principle stated in Apprendi v. New Jersey, 530 U.S. 466 (2000). He

                                          -7-
also asserted in his motion to amend that trial counsel’s failure to anticipate

Apprendi constituted an additional ground for finding that counsel was

ineffective. The district court rejected this amended Apprendi argument on the

ground that it was untimely and failed to relate back to the date on which he filed

his original petition. Mr. Graves filed his original petition on April 29, 1997, but

his signature on the petition was dated April 22, 1997. The Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) amended § 2255 by adding a one-

year statute of limitations on motions under such statute. The effective date of

the AEDPA was April 24, 1996. The district court, as well as the government in

its response, assumed that the initial petition was timely filed. Mr. Graves filed

his motion to amend on July 19, 2000 and contended that under Fed. R. Civ. P.

15(c), his amendment related back to the date of the filing of his original petition.

He asserted that his Apprendi claim should relate back because he had included it

as an additional ground for a finding of ineffective assistance of counsel, which

was included in his original petition.

      The Federal Rules of Civil Procedure apply to amendments of and

supplements to applications for a writ of habeas corpus. 28 U.S.C. § 2242. An

amendment to a pleading shall “relate back” to the date of the original pleading

only if the claim asserted in the original pleading and the claim asserted in the

amended pleading arose out of the same conduct, transaction, or occurrence. Fed.

R. Civ. P. 15(c)(2). Further, we have held that an amendment to a § 2255 motion

                                         -8-
“which, by way of additional facts, clarifies or amplifies a claim or theory in the

[original motion] may . . . relate back . . . if and only if the . . . proposed

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

case.” United States v. Espinoza-Saenz, 235 F.3d 501, 504–05 (10th Cir. 2000)

(internal quotation omitted) (emphasis added). The district court concluded that

the Apprendi claim was separate in time and type from the allegedly deficient

conduct in the original petition. We agree that the claim in the amended petition

presents a new theory and therefore cannot relate back to the original petition.

See United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) (concluding that

counsel’s failure to file an appeal is a separate occurrence in both time and type

from a failure to pursue a downward departure or failure to object to the type of

drugs at issue and could not relate back to original claim of ineffective assistance

of counsel).

       Having reviewed the petitioner’s request for a COA, his appellate brief, the

district court’s order, and the appellate record, we conclude that he has failed to

demonstrate that the issues he raises are debatable among jurists, that a court

could resolve the issue differently, or that the questions presented deserve further

proceedings. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). As such, Mr.

Graves has failed to make the “substantial showing of the denial of a

constitutional right” required for a COA. 28 U.S.C. § 2253(c)(2).



                                           -9-
     Accordingly, we DENY Mr. Graves’s request for a COA and IFP status and

DISMISS his appeal.


                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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