                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-1468
                                     ___________

Steven W. Brown,                          *
                                          *
      Petitioner - Appellant,             *
                                          *
v.                                        * Appeal from the United States
                                          * District Court for the
United States of America,                 * Western District of Missouri
                                          *
      Respondent - Appellee.              *
                                          *
                                     ___________

                                Submitted: September 12, 2002

                                    Filed: December 2, 2002
                                     ___________

Before MORRIS SHEPPARD ARNOLD and SMITH, Circuit Judges, and BOGUE,1
      District Judge.
                         ___________

SMITH, Circuit Judge.

       Steven W. Brown ("Brown") appeals a decision of the District Court,2 denying
his federal habeas corpus petition. See 28 U.S.C. §2255. The issue we address is


      1
       The Hon. Andrew W. Bogue, United States District Judge for the District of
South Dakota, sitting by designation.
      2
        The Hon. Nanette K. Laughrey, United States District Judge for the Western
District of Missouri.
whether a federal prisoner may claim ineffective assistance of counsel under § 2255
if his sentencing counsel failed to make an argument like the one that was successful
in Apprendi v. United States, 530 U.S. 466 (2000). We affirm.

                                          I.

       On April 3, 1997, federal authorities charged Brown with conspiracy to
distribute crack cocaine (violating 21 U.S.C. §846) and possession with intent to
distribute crack cocaine (violating 21 U.S.C. §841(a)(1)). The indictment did not
specify a particular amount of crack cocaine. A jury convicted Brown, but made no
findings as to the quantity of drugs involved. The District Court sentenced Brown to
concurrent 360 month sentences on January 30, 1998, for his offenses.

       This Court affirmed the conviction on September 9, 1998. United States v.
Brown, 156 F.3d 813 (8th Cir. 1998). However, we reversed and remanded for re-
sentencing, holding that the trial court erred in finding a greater quantity of cocaine
than demonstrated by the evidence and in not specifying its reasons for doing so. On
remand, the District Court made specific findings justifying its sentence and its
reasons for rejecting the Government's concession as to the amount of narcotics. The
District Court again sentenced Brown to concurrent 360 month sentences in March
of 1999. This Court then affirmed the re-sentencing on January 26, 2000. United
States v. Brown, 205 F.3d 1348 (8th Cir. 2000) (table).

      On January 23, 2001, Brown filed a pro se habeas petition based upon 28
U.S.C. §2255. The District Court denied relief on December 20, 2001, without a
hearing. Brown then filed a pro se notice of appeal, which the District Court
construed as a petition for a certificate of appealability ("certificate"). The District
Court granted a certificate on the question of whether Brown’s counsel was
ineffective for failing to object to a sentence in excess of the maximum penalty range.



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                                          II.

       Both sides agree–at no time in Brown's two sentencing hearings and sentencing
appeals did his counsel argue either: (1) that the jury had not considered the amount
of cocaine base involved, or (2) that he was being sentenced beyond the statutory
maximum without jury consideration. A few months after Brown's main criminal
proceedings had concluded, the United States Supreme Court decided United States
v. Apprendi, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that any
factor, other than a prior conviction, which increased a sentence beyond the statutory
maximum must be submitted to the jury and proved beyond a reasonable doubt.
Petitioner, citing United States v. Moss, 252 F.3d 993 (8th Cir. 2001), argues that the
failure of his counsel to raise these issues during his criminal proceedings presents
a deficient performance of counsel in violation of the Sixth Amendment. In Moss,
we held that an Apprendi-type argument not raised on direct appeal could not be
raised in a petition for habeas corpus relief because it had been reasonably available
in the first appeal.

       In response, the Government puts forth two reasons for rejecting Brown's
argument. First, the Government urges that the argument is precluded because the
Apprendi rule does not apply retroactively to attack collaterally the validity of an
existing conviction. While this is a correct statement of the law, it does not apply to
this case. Moss, 252 F.3d at 997. In Moss, this Court held that the Apprendi rule was
not a “watershed rule”3 allowing retroactive application. Id. Brown is not raising
Apprendi to seek its retroactive application for collateral relief. Rather, Brown is
arguing that his counsel performed ineffectively because he failed to make an
"Apprendi-like" argument during Brown's proceedings. In that Brown seeks no relief



      3
       A watershed rule implicates both the accuracy and fundamental fairness of
criminal proceedings. Teague v. Lane, 489 U.S. 288 (1989).

                                         -3-
based upon Apprendi, the Government's first basis for denying Brown's relief is
inappropriate.

       Second, the Government argues that Brown's claim should be denied because
he fails to show his counsel's performance was ineffective under the Strickland
standard. Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test,
in order to demonstrate ineffective assistance of counsel, Brown must show: (1) that
counsel's performance was lacking––so lacking in fact that counsel was not
functioning as the "counsel" guaranteed defendant by the Sixth Amendment––and (2)
that the deficient performance prejudiced the defense. Id. at 687.

       Brown's argument fails the Strickland test. Brown's counsel was not
constitutionally deficient. Under the Constitution, a defendant is only guaranteed
adequate, not exceptional counsel. See Strickland, 466 U.S. at 688 ("[T]he proper
standard for attorney performance is that of reasonably effective assistance.") So,
"[w]hen a convicted defendant complains of the ineffectiveness of counsel's
assistance, the defendant must show that counsel's representation fell below an
objective standard of reasonableness."4 Id. at 688–89.

     Brown insists that his attorney's performance fell below that objective standard.
Brown's argument is based upon this Court's opinion in Moss,5 which held that an


      4
       As this Court has noted previously, this is a heavy burden. See United States
v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). "With respect to attorney performance,
[this Court] must determine whether, in light of all the circumstances, the lawyer's
performance was outside the range of professionally competent assistance." Cox v.
Norris, 133 F.3d 565, 573 (8th Cir. 1997) (citations omitted).
      5
          The Court in Moss held:

          [A]lthough the argument was not rekindled by defense counsel until
          after Jones [v. United States, 526 U.S. 227 (1999)], the fact that it was

                                            -4-
Apprendi-type claim was reasonably available prior to the Supreme Court's decision.
Brown attempts to apply the language from Moss to the facts of his case and now
argues that his counsel's failure to have made an Apprendi-type argument prior to the
Apprendi decision constituted ineffective assistance of counsel. We reject Brown's
argument. Instead, we hold that his counsel's decision not to raise an issue
unsupported by then-existing precedent did not constitute ineffective assistance. See
Wajda v. United States, 64 F.3d 385, 388 (8th Cir. 1995) ("[C]ounsel's performance
is not deficient by failing to predict future developments in the law."); see also United
States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (noting that an ineffective
assistance of counsel argument premised on counsel's failure to anticipate
Apprendi would be untenable); United States v. Ardley, 273 F.3d 991, 993 (11th Cir.
2001) (Carnes, J., concurring) (on petition for rehearing en banc) (stating that "our
circuit law completely forecloses the contention that an attorney's failure to anticipate
the Apprendi decision is ineffective assistance"). Thus, counsel's representation in
this matter cannot be said to fall below an objective standard of reasonableness
simply because the court in Moss found that an Apprendi-type challenge was
reasonably available. Having found his counsel's performance adequate, we need not
address the issue of prejudice under the second prong of the Strickland test.

         Accordingly, for the foregoing reasons, we affirm the judgment of the District
Court.




          raised extensively in the past, and explicitly addressed by this court
          previously, precludes a conclusion that the argument was "novel" and
          therefore unavailable because it was intellectually unascertainable.

Moss, 252 F.3d at 1002.


                                           -5-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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