                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 10 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-4186
                                                     (D.C. No. 95-CV-653)
    BRUCE T. GOTTSCHALK,                                   (D. Utah)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before PORFILIO , KELLY , and HENRY , 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Petitioner Bruce T. Gottschalk appeals the district court’s denial of his

third motion challenging his convictions and sentence pursuant to 28 U.S.C.

§ 2255. 1 We affirm in part, reverse in part, and remand for further proceedings.


                                            I

       Gottschalk pled guilty in 1991 to one count of attempting to manufacture

and manufacturing 100 grams or more of methamphetamine in violation of

21 U.S.C. §§ 841(a) and 846; one count of using and carrying a firearm during

and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and

one count of possessing a destructive device not registered to him in violation of

26 U.S.C. § 5861(d). He was sentenced to 195 months’ imprisonment, which

included the mandatory sixty months for the § 924(c) violation. He did not take a

direct appeal. Gottschalk filed his first § 2255 motion in October 1991, claiming

that he had been denied due process because of “forum shopping” involving his

referral for federal prosecution. The motion was denied, and this court affirmed

the denial.   See Gottschalk v. United States    , No. 91-4211, 1992 WL 75200 (10th

Cir. April 13, 1992). He filed his second § 2255 motion in August 1992


1
       Gottschalk filed an application for a certificate of appealability as required
by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), but
because he filed his motion prior to the effective date of AEDPA, he does not
need a certificate of appealability to proceed with his appeal.        See United States
v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997),          cert. denied, 118 S. Ct.
1375 (1998).

                                           -2-
challenging the administrative reclassification of methamphetamine. That motion

was denied, and his appeal was dismissed in March 1993.

      Gottschalk then filed his third § 2255 motion, the one currently before us,

on July 17, 1995. The only issue contained in the original motion was a double

jeopardy claim based on the fact that some of his personal property had been

civilly forfeited as a result of the criminal activity for which he was convicted. In

January 1996, the district court allowed him to amend his motion to add a

challenge to his § 924(c) conviction based on    Bailey v. United States , 516 U.S.

137 (1995). In June 1996, Gottschalk filed what he called a “Motion for

Determination of Jurisdiction,” which essentially was another motion to amend

that the court implicitly granted, challenging his convictions under 21 U.S.C.

§§ 841 and 846 and 26 U.S.C. § 5861(d) on commerce clause grounds in light of

United States v. Lopez , 514 U.S. 549 (1995). In May 1997, Gottschalk sent the

court a letter, which is not part of the record, apparently contending that his

counsel had been ineffective at sentencing for not requiring the government to

prove that the type of methamphetamine involved was the d-isomer, the type on

which his sentence was based.

      On June 4, 1997, the magistrate judge issued his report and

recommendation addressing Gottschalk’s amended motion and subsequent filings.

The magistrate judge recommended that his double jeopardy claim be denied in


                                           -3-
light of United States v. Ursery , 116 S. Ct. 2135, 2147 (1996), which held that

civil forfeitures do not constitute punishment for double jeopardy purposes. The

magistrate judge also recommended that Gottschalk’s commerce clause challenge

to his §§ 841 and 846 convictions be denied because similar challenges had been

rejected in United States v. Wacker , 72 F.3d 1453, 1475 (10th Cir. 1995), and that

his challenge to his § 5861 conviction be denied because Congress passed that

statute under its taxing power rather than its commerce clause power. Turning to

Gottschalk’s Bailey challenge to his § 924(c) conviction, the magistrate judge

noted that the government conceded that his conviction could not be sustained for

“using” a firearm and that the government did not argue that it alternatively could

be sustained for “carrying” a firearm. The magistrate judge thus recommended

that the § 924(c) conviction be vacated, but that a hearing be held to determine

whether his sentence should be enhanced under U.S.S.G. § 2D1.1(b)(1) for

possession of a firearm in connection with his drug crime. Finally, the magistrate

judge concluded that Gottschalk had failed to properly raise his ineffective

counsel claim, but recommended that he be granted leave to file a supplemental

motion to properly raise this issue.

      Both parties filed objections to the magistrate judge’s report and

recommendation. Additionally, Gottschalk submitted a proposed amended motion

raising his ineffective counsel claim. The government objected to the filing and


                                         -4-
consideration of this motion on the basis that the original motion had been

pending for nearly two years and any attempt to amend at this point would be an

abuse of the writ under AEDPA.   2



      The district court adopted the magistrate judge’s recommendation regarding

Gottschalk’s double jeopardy claim and his commerce clause challenge to his

§§ 841 and 846 convictions. The court rejected the magistrate judge’s

recommendation, and the government’s concession, that the § 924(c) conviction

be vacated. The court concluded that because Gottschalk had pled guilty to both

using and carrying a firearm, and there was a factual basis in the record to support

his plea to carrying, the conviction could be sustained under the carry prong of §

924(c). The court declined to address Gottschalk’s challenge to his § 5861

conviction because in his objections to the magistrate judge’s report and

recommendation, Gottschalk had changed his argument, and the court found that

argument not properly before it. Similarly, the court declined to address his

ineffective counsel claim on the basis that it was not properly before the court.


2
      In his report and recommendation, the magistrate judge had concluded that
the provisions of AEDPA regarding successive motions did not apply to
Gottschalk’s third motion because he filed it before AEDPA’s effective date. The
magistrate judge did note that under the law effective at the time Gottschalk filed
his motion, a § 2255 motion was not available to correct errors that could have
been raised in a prior § 2255 motion absent a showing of cause and prejudice or a
fundamental miscarriage of justice. The magistrate judge therefore stated that in
Gottschalk’s amended motion, he should explain why he failed to raise his
ineffective counsel claim in his two previous § 2255 motions.

                                         -5-
The court therefore dismissed these claims without prejudice and suggested that

should Gottschalk wish to raise them in a subsequent proceeding, he would need

to comply with the requirements of 28 U.S.C. § 2244(a) and (b)(3) regarding

successive § 2255 motions.


                                        II

      On appeal, Gottschalk raises the following issues:

            [1] Whether the Court completely failed to pierce the
      pleadings and record and disregarded the fact that the sentencing
      court misapplied the guidelines by failing to convert the amount of
      ephedrine in this case to marijuana before going to the 2D1.1 tables.

             [2] Whether Mr. Gottschalk was denied the effective
      assistance of counsel, and whether this issue was properly before the
      Court, after the magistrate properly allowed an amended petition to
      be filed.

            [3] Whether the Court had jurisdiction over acts of
      manufacturing made criminal under the Commerce Clause, where
      such right was reserved to the states violative of the Tenth
      Amendment, and government does not show a nexus to interstate
      commerce under the facts of this case.

            [4] Whether the district court could rely on pre-guilty plea
      proceedings to find a factual basis [to support his § 924(c) conviction
      under the carry prong].

Appellant’s Br. at 15, 16, 21.




                                        -6-
                                            A

       Gottschalk raised his first issue only as part of his ineffective counsel

claim, so we address his first and second issues together. The district court

declined to address the merits of the ineffective counsel claim, apparently on the

basis that since Gottschalk did not attempt to raise this issue until over a year

after AEDPA’s effective date, Gottschalk needed to comply with AEDPA’s

requirement that he obtain leave from this court pursuant to 28 U.S.C. §

2244(b)(3) to file a successive § 2255 motion and raise this claim.   3
                                                                          Gottschalk

contends that because he filed his original (third) motion prior to AEDPA’s

effective date, applying the AEDPA requirement of leave to file a successive

motion to his attempt to amend his motion would violate the prohibition against

ex post facto laws. He also contends that the magistrate judge had authority to

allow him to amend his motion under Fed. R. Civ. P. 15(b).        4




3
        The district court’s order is not entirely clear on the reason it concluded
this claim was not properly before it. Both Gottschalk and the government read
the court’s order as indicating that AEDPA precluded it from addressing the
claim, and that appears to be the best reading of the order. However, the court
earlier stated that “[t]he Government    may also be correct in expressing doubt
whether Petitioner may now raise his Sixth Amendment claim in light of [AEDPA
and § 2244(b)(3)].” R. Vol. III, Doc. 44, at 31 n.24 (emphasis added).
Additionally, the court had earlier addressed Gottschalk’s commerce clause claim
on the merits, though that claim also was not raised until after AEDPA’s effective
date.
4
      Gottschalk raised these arguments in his application for a certificate of
appealability but not in his opening brief. Because he is proceeding pro se, we
                                                                      (continued...)

                                            -7-
       Subsequent to the district court’s ruling in this case, the Supreme Court

held that the amendments to Chapter 153 of United States Code Title 28 enacted

through AEDPA, which include § 2244(b)(3)’s requirement that a court of appeals

grant leave to file successive § 2255 motions, did not apply to cases filed before

AEDPA’s effective date, April 24, 1996.       See Lindh v. Murphy , 117 S. Ct. 2059,

2068 (1997); see also Kunzman , 125 F.3d at 1364 n.2. Section 2244(b)(3)

therefore did not apply to the proposed amended motion, and the district court had

the discretion to allow him to amend his motion.      See Stafford v. Saffle , 34 F.3d

1557, 1560 (10th Cir. 1994). Ordinarily, we would remand this issue to the

district court for it to exercise its discretion.

       We need not do that in this case, however, because Gottschalk has

procedurally defaulted his ineffective counsel claim. “The abuse of the writ

doctrine prohibits [a petitioner’s] second [or subsequent] § 2255 motion unless he



4
 (...continued)
will liberally construe his filings as adequately raising these arguments.
However, we will not consider issues he raised in his objections to the magistrate
judge’s report and recommendation and “objections” to the district court’s final
order that he apparently incorporates by reference into his brief on appeal. Fed.
R. App. P. 28(a)(6) requires that an appellant’s “argument must contain the
contentions of the appellant on the issues presented, and the reasons therefor,
with citations to the authorities, statutes, and parts of the record relied on.” The
rule does not allow the incorporation by reference of arguments made in the
district court. See Graphic Controls Corp. v. Utah Med. Prods., Inc.     , 149 F.3d
1382, 1385 (Fed. Cir. 1998); Pitsonbarger v. Gramley , 141 F.3d 728, 740 (7th Cir.
1998), petition for cert. filed , (U.S. July 8, 1998) (No. 98-5153).

                                            -8-
excuses his failure to raise the issue earlier by showing cause for failing to raise it

and prejudice therefrom or by showing that a fundamental miscarriage of justice

would result from a failure to entertain the claim.”     United States v. Richards , 5

F.3d 1369, 1370 (10th Cir. 1993) (quotation omitted). In recommending that

Gottschalk be allowed to amend his motion to assert an ineffective counsel claim,

the magistrate judge informed Gottschalk that he had to satisfy the cause

requirement for failing to raise the claim in his previous motions. The closest

Gottschalk came to arguing cause in his subsequent proposed motion to amend

was to cite United States v. Galloway , 56 F.3d 1239, 1240-41 (10th Cir. 1995),

and state that “[t]here are no procedural bars to this court examining the

ineffective assistance of counsel claims.” R. Vol. III, Doc. 40, at 3.     Galloway ,

however, held only that a claim of ineffective counsel was generally better raised

in a § 2255 proceeding than on direct appeal; it did not hold that the prohibition

against successive § 2255 motions did not apply to ineffective counsel claims.

Thus, as the district court noted,   see R. Vol. III, Doc. 44, at 30-31, Gottschalk did

not establish cause for failing to raise his ineffective counsel claim in his earlier §

2255 motions, and has procedurally defaulted this claim. Because it would be an

abuse of the district court’s discretion to allow Gottschalk to amend his motion to

assert a defaulted claim, we reverse the district court’s dismissal of Gottschalk’s




                                             -9-
ineffective counsel claim without prejudice and remand with directions to dismiss

the claim with prejudice.

                                                 B

       Gottschalk’s third issue reasserts his commerce clause challenge to the

constitutionality of 21 U.S.C. §§ 841 and 846. We reject this argument for

substantially the same reasons as stated in the district court’s order.

                                                 C

       As his fourth issue, Gottschalk contends that the district court improperly

relied on admissions he made during a suppression hearing that preceded his

guilty plea to find that there was an adequate factual basis to support his plea to

the 18 U.S.C. § 924(c) charge under the carry prong. He argues that the factual

basis for a plea can be established only at his Fed R. Crim. P. 11 hearing, and that

hearing does not support his plea.

       As part of the procedures for ensuring that a guilty plea is knowingly and

voluntarily made, Rule 11(f) requires the district court to satisfy itself that there

is a factual basis for a guilty plea before entering judgment on that plea.        See

United States v. Gallardo-Mendez      , 150 F.3d 1240, 1245 (10th Cir. 1998). The

factual basis must be reflected in the record,       see United States v. Keiswetter   , 860

F.2d 992, 996 (10th Cir. 1988),     modified on reh’g en banc , 866 F.2d 1301 (10th

Cir. 1989), and at least for purposes of review on direct appeal, the factual basis


                                             -10-
generally must be reflected in the transcript of the plea proceeding itself,   see, e.g. ,

United States v. Graibe , 946 F.2d 1428, 1434 (9th Cir. 1991) (“[C]laims of

noncompliance with rule 11 must be resolved solely on the basis of the rule 11

transcript. That transcript provides all that is needed and all that is allowed for

the resolution of such claims.”) (quotations omitted). However, a violation of

Rule 11 that may warrant reversal on direct appeal may not necessarily have the

same result in a § 2255 proceeding. “[C]ollateral relief is not available when all

that is shown is a failure to comply with the formal requirements of the Rule.”

United States v. Timmreck , 441 U.S. 780, 785 (1979) (quotation omitted). To be

cognizable, the error must result in a “complete miscarriage of justice or in a

proceeding inconsistent with the rudimentary demands of fair procedure.”         Id. at

784 (quotation omitted);    see also United States v. Talk , ___ F.3d ___, No.

97-2088, 1998 WL 601092, at *5 (10th Cir. Sept. 11, 1998).

       The question here is what portions of the record may be considered in

determining whether there was a factual basis supporting Gottschalk’s guilty plea

under the carry prong of § 924(c). The plea hearing itself focused on the use

prong, as that was the government’s approach to the § 924(c) charge, and the

hearing does not contain a factual basis to support the “immediate availability and

physical transportation” elements necessary to support a carry conviction.       See

United States v. Spring , 80 F.3d 1450, 1465 (10th Cir. 1996). To find a factual


                                             -11-
basis for his plea, the district court therefore relied on statements Gottschalk

made to a magistrate judge at a suppression hearing nearly eighteen months prior

to his plea hearing.

       Even under the standard applicable to collateral review, we conclude that

the district court erred in relying on the suppression hearing to find a factual basis

for Gottschalk’s plea. A valid guilty plea must be knowing and voluntary, and the

procedures required by Rule 11, including Rule 11(f), are designed to ensure that

result. See Gallardo-Mendez , 150 F.3d at 1245; United States v. Gigot , 147 F.3d

1193, 1197 (10th Cir. 1998). The Rule 11 proceeding here focused on the use

prong of § 924(c); by itself, it did not produce a knowing and voluntary plea to

the carry prong. Indeed, “[o]ur pre-Bailey definition of ‘use’ was so broad that

neither party had a reason to focus on the factual issues relevant to the ‘carry’

prong . . . .” Spring , 80 F.3d at 1465. Moreover, the suppression hearing did not

contain the Rule 11 safeguards designed to ensure a knowing and voluntary plea.

Relying on statements made in a different context from and long prior to a guilty

plea is more than a mere technical violation of Rule 11. Thus, without a valid

factual basis for the plea, we cannot confidently say that Gottschalk knowingly

and voluntarily pled guilty to carrying a firearm.   5




5
       We note that despite the general rule that an appellee may defend a district
court’s decision on any ground supported by the record,   see Tinkler v. United
                                                                       (continued...)

                                            -12-
      We therefore conclude that the district court erred in upholding the

§ 924(c) conviction under the carry prong, and that we must remand the matter to

the district court for further proceedings. We do not, however, vacate the

§ 924(c) conviction. Before returning to the validity of the § 924(c) conviction

on remand, the district court should first address whether Gottschalk has

procedurally defaulted this claim by failing to raise it on direct appeal or in his

two previous § 2255 motions. The district court apparently determined that

Gottschalk could show cause for not raising his    Bailey claim earlier because

Bailey was not decided until after he filed his second § 2255 motion.    6
                                                                             However,

the Supreme Court subsequently rejected this means of showing cause in         Bousley

v. United States , 118 S. Ct. 1604, 1611 (1998);    see also United States v. Powell ,

___ F.3d ___, No. 97-1449, 1998 WL 730159, at *2 (10th Cir. Oct. 20, 1998).

Moreover, it also appears unlikely that Gottschalk would be able to demonstrate

“actual innocence” of the carrying conviction, which is the other way around the

5
 (...continued)
States ex rel. F.A.A. , 982 F.2d 1456, 1461 n.4 (10th Cir. 1992), the government
declined to argue on appeal that the district court correctly decided this issue, on
the basis that the government had failed to raise the issue below.
6
       The district court raised the possibility of the defense of procedural bar sua
sponte, which is permissible. To reject Gottschalk’s claim on this basis, it would
have to have given him an opportunity to respond to this defense.     See Hines v.
United States , 971 F.2d 506, 509 (10th Cir. 1992). Because it concluded
Gottschalk had adequate cause for not raising his claim earlier, it never afforded
him an opportunity to respond to the defense, and therefore, we cannot dismiss his
claim on this basis.

                                          -13-
procedural default rule.   See Bousley , 118 S. Ct. at 1611. In rebutting any claim

of actual innocence, the government can present any admissible evidence even if

not offered at the plea colloquy,   see id. at 1611-12; Powell , 1998 WL 730159, at

*3, which would include Gottschalk’s statements at the suppression hearing.

       Finally, we reject Gottschalk’s argument that should the district court

conclude on remand that the § 924(c) conviction cannot be sustained, his sentence

for manufacturing methamphetamine cannot be enhanced based on his possession

of a firearm under U.S.S.G. § 2D1.1(b)(1). The district court correctly

determined that such an enhancement is permissible.        See United States v.

Mendoza , 118 F.3d 707, 709-10 (10th Cir.),       cert. denied, 118 S. Ct. 393 (1997).


                                           III

       The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED to the district court for proceedings

consistent with this order and judgment.

                                                         Entered for the Court

                                                         Robert H. Henry
                                                         Circuit Judge




                                           -14-
