Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JAN 8 2002
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ANTHONY CARLOS TORRES,
No. 01-1178
(D.C. Nos. 92-CR-335, 97-N-881)
(D. Colo.)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-1187
(D.C. Nos. 97-N-881, 92-CR-335)
(D. Colo.)
v.
EDWARD GRAVES,
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This order and judgment is not binding precedent, except under the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 courts 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 judges
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.
Although appellants filed separate 2255 motions, their arguments on
appeal raise, in part, substantially related issues. As the appellants were codefendants, 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).
1
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agreements. See United States v. Robertson, 45 F.3d 1423, 143334 (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 Governments 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, 152526
(10th Cir. 1990) (unconditional guilty plea waives all non-jurisdictional
defenses). As to Mr. Torress second contention, the district court assumed for
arguments 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 counsels 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 counsels 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. Torress 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, 69192 (1984).
Before this court, Mr. Torres raises a number of argumentssome 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. Torress 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 courts failure to comply with Fed. R. Crim. P. 32 at the
sentencing hearing; and (2) the governments 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. Torress
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 45, 10, 1213. 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, 50305 (10th Cir.
2000). Petitioners 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 75758.
Finally, Mr. Torress 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. Torress request for a COA, his appellate brief, the
district courts order, and the appellate record, we conclude that he has failed to
make the required showing for a COA.
Accordingly, we DENY Mr. Torress 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. Gravess 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 counsels conduct fell within the wide range of reasonable,
professional assistance. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
Turning to whether counsels 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. Gravess 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 counsels 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 oneyear 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, 50405 (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
counsels 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 petitioners request for a COA, his appellate brief, the
district courts 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, 48384 (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. Gravess request for a COA and IFP status and
DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
- 10 -

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Appeal No. 01-1178 1

Appeal No. 01-1187

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

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