                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   OCT 7 2002
                                      TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                              No. 02-3056
                                                      (D.C. Nos. 01-CV-3264-KHV,
 v.                                                      89-CR-20081-06-KHV)
                                                              (D. Kansas)
 DANA NELSON,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Dana Nelson, a federal prisoner appearing pro se, seeks a certificate of

appealability to appeal the district court's denial of his 28 U.S.C. § 2255 petition for writ



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
of habeas corpus. Because we conclude that Nelson has failed to make a “substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his

application for a certificate of appealability and dismiss the appeal.

                                              I.

       In 1990, Nelson was convicted of conspiracy to possess cocaine base with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and with

possession of cocaine base with intent to distribute within 1000 feet of a public school, in

violation of 21 U.S.C. § 845a(a) (now codified at 21 U.S.C. § 860). The district court did

not require the jury to make any finding as to the drug quantities involved in each count.

At sentencing, the district court enhanced Nelson's sentence two levels for possession of a

firearm and two levels for obstruction of justice. Pursuant to U.S.S.G. § 2D1.4,

Application Note 2 (in effect at the date of sentencing), the court predicated Nelson's

offense level on his possession of 500 grams of cocaine base with intent to distribute.

With a total offense level of 40 and a criminal history category of I, the court sentenced

Nelson to concurrent terms of imprisonment of 292 months and supervised release of six

years. Nelson's direct appeal was affirmed by this court. United States v. Nelson, 941

F.3d 1213, 1991 WL 163061 (10th Cir. 1991) (unpublished decision).

       In June 2001, Nelson filed his § 2255 petition asserting that his conviction should

be vacated and he should be resentenced in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Specifically, he asserted that the jury, not the district court, should have


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determined the amount of cocaine base, whether he possessed a firearm, and whether he

obstructed justice. Nelson also argued that the indictment was void under Federal Rule of

Criminal Procedure 12(b)(2) because it did not charge him with all of the elements of the

offense, including the amount of cocaine base attributed to him, his possession of a

firearm, or obstruction of justice. The district court concluded that Apprendi did not

apply retroactively and that, even absent the procedural bar, Apprendi would not change

Nelson's term of imprisonment. The court treated Nelson's Rule 12(b)(2) assertion as a

section 2255 motion and denied Nelson relief since his sentence fell below the statutory

maximum for both counts and Apprendi was not implicated.

                                             II.

       In United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002), this court held

that Apprendi “is not a watershed decision [under Teague v. Lane, 489 U.S. 288 (1989)]

and hence is not retroactively applicable to initial habeas corpus petitions.” In light of our

decision in Mora, we cannot retroactively apply Apprendi to Nelson's initial habeas

corpus petition.

       Nelson argues it was error for the district court to deny his motion for

reconsideration without first allowing him an opportunity to amend or supplement his

habeas petition pursuant to Federal Rule of Civil Procedure 15(d). In his motion for

reconsideration, Nelson did not ask to amend his habeas petition. Further, Rule 15(d)

expressly applies to pleadings and not filings such as Nelson's § 2255 habeas petition.


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See Fed. R. Civ. P. 15(d) (“Upon motion of a party the court may, upon reasonable notice

and upon such terms as are just, permit the party to serve a supplemental pleading setting

forth transactions or occurrences or events which have happened since the date of the

pleading sought to be supplemented.”).

       Nelson also contends, in effect, that the district court erred in treating his Rule

12(b)(2) motion as a section 2255 petition. However, a Rule 12(b)(2) motion may not be

filed after judgment and sentence have been entered. See Fed. R. Crim. P. 12(b)

(providing that issues “must be raised prior to trial”). The district court did not err in

construing Nelson's pleading liberally and in treating his motion as a section 2255

petition. Nelson argued his indictment was void because it failed to charge all of the

elements of the offense. However, the district court properly determined that his

complaints were aimed at the sentence enhancements and not the elements of the

offenses. The indictment identified the necessary elements of 21 U.S.C. § 841(a)(1) and

21 U.S.C. § 845a(a) (now codified at 21 U.S.C. § 860). The sentence enhancements did

not increase Nelson's term of imprisonment above the statutory maximum.

       We decline to address Nelson's remaining arguments because he failed to raise

them on direct appeal and he has not made “a showing of cause and actual prejudice, or a

fundamental miscarriage of justice.” Mora, 293 F.3d at 1216.




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      Nelson’s request for a certificate of appealability is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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