PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 98-6937
ANTHONY ALEXANDER PITTMAN, a/k/a
Anthony Alexander Pittman, Sr.,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, District Judge.
(CR-94-290-6, CA-97-524-6)

Argued: January 27, 2000

Decided: March 24, 2000

Before WILKINSON, Chief Judge, and
WIDENER and TRAXLER, Circuit Judges.

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Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Widener and Judge Traxler joined.

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COUNSEL

ARGUED: Tamer Ali Soliman, Neal Lawrence Walters, Appellate
Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Michael Francis Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

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OPINION

WILKINSON, Chief Judge:

Appellant Anthony Pittman filed a timely motion to vacate or mod-
ify his criminal sentence pursuant to 28 U.S.C.§ 2255. He later filed
a motion to amend raising two additional grounds for relief. The dis-
trict court denied the motion to amend finding that the additional
claims were barred by the one-year statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, § 105, 110 Stat. 1214, 1220 (amending 28
U.S.C. § 2255). Pittman argues that the district court erred in denying
his motion to amend because the amendments related back to his orig-
inal § 2255 motion. We hold, however, that the district court properly
exercised its discretion when it denied Pittman's motion to amend.
We thus affirm the judgment.

I.

Pittman was indicted for conspiracy to possess with intent to dis-
tribute cocaine base ("crack") in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) & 846. Pittman pleaded guilty to the conspiracy charge,
but then failed to appear at his original sentencing hearing. On
November 9, 1995, he was sentenced to 186 months imprisonment,
which included an enhancement for obstruction of justice for failing
to appear. No direct appeal of the conviction or sentence was filed.

Pittman's conviction became final before the enactment of the
AEDPA. Pittman thus had until April 23, 1997, to file a motion under
§ 2255. See Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998).
On April 23, 1997, Pittman filed a timely motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255 (Supp. III 1997).1
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1 Pittman initially filed his§ 2255 motion on March 24, 1997, but on
April 15, 1997, the district court dismissed the motion without prejudice

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Pittman claimed that (1) the district court lacked jurisdiction to
impose an enhanced sentence on the basis of prior convictions; (2) the
enhancement for a prior conviction was improper; and (3) the govern-
ment had not established by a preponderance of the evidence that the
drugs at issue were crack cocaine.

On June 26, 1997, before the government had filed any responsive
pleading, Pittman filed a motion to amend that raised two new
grounds for relief: (1) the enhancement for obstruction of justice was
improper; and (2) the failure of his counsel to file a requested appeal
resulted in ineffective assistance. On February 4, 1998, the magistrate
judge recommended that Pittman's original § 2255 motion be denied
because the three original claims were barred from collateral review
and further were without merit. The magistrate further recommended
that the motion to amend be denied because the new claims were friv-
olous and barred by the one-year statute of limitations and therefore
amendment would be futile. The district court adopted the magistrate
judge's recommendation to deny both of Pittman's motions. Pittman
now appeals the denial of his motion to amend.

II.

A.

We review the denial of a motion to amend a pleading for abuse
of discretion. See Sandcrest Outpatient Servs. v. Cumberland County
Hosp. Sys., 853 F.2d 1139, 1140 (4th Cir. 1988). This standard of
review mandates a significant measure of appellate deference to the
judgment calls of trial courts. See General Elec. Co. v. Joiner, 522
U.S. 136, 143 (1997).

Rule 12 of the Rules Governing Section 2255 Proceedings states,
"If no procedure is specifically prescribed by these rules, the district
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for failure to file in the proper format and allowed Pittman thirty days to
correct the defect and re-file his § 2255 motion. This thirty-day extension
would have allowed Pittman to file after AEDPA's statute of limitations
had run. Because Pittman filed his motion before the statute of limita-
tions ran, we do not consider whether the district court had the authority
to extend AEDPA's statute of limitations.

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court may proceed in any lawful manner not inconsistent with these
rules . . . and may apply the Federal Rules of Criminal Procedure or
the Federal Rules of Civil Procedure, whichever it deems most appro-
priate." The Rules Governing Section 2255 do not specify a procedure
for amending motions. Therefore courts have typically applied Fed-
eral Rule of Civil Procedure 15 to the amendment of a § 2255 motion.
See Rogers v. United States, 180 F.3d 349, 352 n.3 (1st Cir. 1999);
see also United States v. Duffus, 174 F.3d 333, 336 (3d Cir.), cert.
denied, 120 S. Ct. 163 (1999).

Rule 15(a) provides, "A party may amend the party's pleading once
as a matter of course at any time before a responsive pleading is
served . . . . Otherwise a party may amend the party's pleading only
by leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires." Under Rule 15(a)
leave to amend shall be given freely, absent bad faith, undue preju-
dice to the opposing party, or futility of amendment. See Foman v.
Davis, 371 U.S. 178, 182 (1962); Davis v. Piper Aircraft Corp., 615
F.2d 606, 613 (4th Cir. 1980); see also Perkins v. Silverstein, 939
F.2d 463, 471-72 (7th Cir. 1991) (plaintiff's right to amend as a mat-
ter of course is not absolute). Where the statute of limitations bars a
cause of action, amendment may be futile and therefore can be
denied. See, e.g., Keller v. Prince George's County, 923 F.2d 30, 33
(4th Cir. 1991); accord Jablonski v. Pan Am. World Airways, Inc.,
863 F.2d 289, 292 (3d Cir. 1988).

When proposed claims in an amendment are barred by the statute
of limitations, Rule 15(c) provides for the relation back of amend-
ments to the original pleading under certain circumstances. Relation
back is permitted when "the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set forth
. . . in the original pleading." Fed. R. Civ. P. 15(c)(2).2 Courts have
applied Rule 15(c) and have denied leave to amend in contexts similar
to this one. In United States v. Craycraft, a defendant filed a timely
§ 2255 motion alleging ineffective assistance of counsel for failure to
pursue a downward departure and for failure to object to the type of
drugs at issue. 167 F.3d 451, 456-57 (8th Cir. 1999). In his proposed
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2 The other circumstances for relation back in Rule 15(c) are not appli-
cable to this case.

                    4
amendment, the defendant sought to add a claim that his counsel
failed to file an appeal as instructed. The Eighth Circuit found that the
proposed amendment did not relate back and therefore was time-
barred. Id. at 457. In United States v. Duffus, a defendant asserted
several ineffective assistance of counsel claims in his original motion,
and the amended claim alleged his counsel failed to move to suppress
evidence. 174 F.3d at 335. The Third Circuit found that the amended
claim was completely new, and thus "could not be deemed timely
under the `relation back' provisions of Fed. R. Civ. P. 15(c)." Id. at
337.

B.

We proceed to apply the above principles to this case. Pittman
timely filed his original § 2255 motion. Yet Pittman's motion to
amend was not filed until several months after AEDPA's statute of
limitations had run. Pittman now argues that the claims raised in his
motion to amend arise out of the same conduct, transaction, or occur-
rence set forth in the original pleading and therefore relate back to the
original motion.

We disagree. Pittman's initial § 2255 motion alleged that (1) the
district court lacked jurisdiction to impose an enhanced sentence on
the basis of prior convictions; (2) the enhancement for a prior convic-
tion was improper; and (3) the government had not established by a
preponderance of the evidence that the drugs at issue were crack
cocaine. Pittman's motion to amend raised two additional claims: (1)
the failure to file a requested appeal resulted in ineffective assistance
of counsel; and (2) the enhancement for obstruction of justice, which
was imposed for Pittman's failure to appear at sentencing, was
improper.

These new claims do not relate back to his original claims because
they arise from separate occurrences of "both time and type." Cray-
craft, 167 F.3d at 457. Pittman's ineffective assistance claim relates
neither to the sentencing enhancement claims nor to the lack of juris-
diction claim. The failure to file an appeal occurred after the sentenc-
ing hearing where the court imposed the enhancements. The
ineffective assistance of counsel claim also arises out of different con-
duct and transactions from Pittman's first motion, which challenged

                     5
the district court's jurisdiction and the imposition of an enhanced sen-
tence. Pittman's ineffective assistance of counsel claim is completely
new and thus cannot relate back to his original pleading. See id.
(reaching the same result under very similar facts).

Pittman also seeks to add a claim that the enhancement for obstruc-
tion of justice was improper. While this claim has the same form as
the original claims for improper enhancement, it arises out of wholly
different conduct. The obstruction of justice enhancement was for Pit-
tman's failure to appear at his original sentencing hearing. The other
enhancements arose from a prior conviction for dealing cocaine and
the determination that the drugs at issue in this conviction were crack
cocaine. The failure to appear at sentencing occurred at an altogether
different time and is of an entirely different character than the other
enhancements. The challenge to the obstruction of justice enhance-
ment therefore does not relate back to the original§ 2255 motion.

Pittman argues that his motion to amend should relate back to the
original § 2255 motion because the "occurrence" for purposes of Rule
15(c) should be the entire trial and sentencing proceeding. For this
proposition Pittman relies on a single district court case that held
without analysis that an untimely amendment related back because
"both petitions allege constitutional defects surrounding the same
`occurrence' -- petitioner's trial and penalty phases." Williams v.
Vaughn, 3 F. Supp. 2d 567, 570 (E.D. Pa. 1998). Yet this holding
views "occurrence" at too high a level of generality. The fact that
amended claims arise from the same trial and sentencing proceeding
as the original motion does not mean that the amended claims relate
back for purposes of Rule 15(c). If we were to craft such a rule, it
would mean that amendments to a § 2255 motion would almost
invariably be allowed even after the statute of limitations had expired,
because most § 2255 claims arise from a criminal defendant's under-
lying conviction and sentence. Such a broad view of"relation back"
would undermine the limitations period set by Congress in the
AEDPA. See Duffus, 174 F.3d at 337 (granting an untimely and unre-
lated amendment "would have frustrated the intent of Congress that
claims under 28 U.S.C. § 2255 be advanced within one year after a
judgment of conviction becomes final").

Moreover, Pittman was aware of the deficiencies alleged in his
motion to amend even at the time of his initial motion. He knew that

                    6
no appeal had been filed on his behalf. Further, the presentence
report, which Pittman admits was available to him, recommended an
enhancement for obstruction of justice. The claims in Pittman's
motion to amend were not overly technical and he could have easily
included them in his original § 2255 motion.

III.

Pittman filed a timely motion for relief under § 2255. His amended
motion, however, was filed after AEDPA's statute of limitations had
run. Because the amended claims do not relate back to the original
motion, they are barred by the statute of limitations and therefore
futile. Under these circumstances, the district court did not abuse its
discretion when it denied Pittman's motion to amend. We thus affirm
the judgment.

AFFIRMED

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