Joseph Francis DAVENPORT, a.k.a. Little Joe, Petitioner-Appellant,

                                                       v.

                            UNITED STATES of America, Respondent-Appellee.

                                                 No. 99-2099.

                                        United States Court of Appeals,

                                               Eleventh Circuit.

                                                 July 13, 2000.

Appeal from the United States District Court for the Northern District of Florida. (No. 97-00164-3-CV-RV-
M), Roger Vinson, Judge.

Before COX and HULL, Circuit Judges, and GEORGE*, District Judge.

           HULL, Circuit Judge:

           Appellant Joseph F. Davenport timely filed a § 2255 motion to vacate his conviction and sentence

raising four claims. After the AEDPA's one-year deadline, Davenport filed an amended § 2255 motion

raising three new claims. The district court found that the three new claims did not relate back under Rule

15(c) to the date of Davenport's original § 2255 motion and thus were barred by the AEDPA's one-year statute

of limitations. We affirm.

                                              I. BACKGROUND

           In 1991, Davenport received a 234 month prison sentence after a jury convicted him of two drug

offenses.1 In 1992, this Court affirmed his conviction and sentence. In 1996, Congress enacted a one-year

statute of limitations for post-conviction § 2255 motions under the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"). Thus, Davenport had until April 23, 1997 to file a § 2255 motion. See Goodman

v. United States, 

, 1337 (11th Cir.1998).




   *
       Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by designation.
   1
    Davenport was found guilty of conspiracy to possess with intent to distribute cocaine base, in violation
of 21 U.S.C. § 846, for activity from January 1988 to February 1991, and possession with intent to distribute
cocaine base on August 9, 1990, in violation of 21 U.S.C. § 841(a)(1).
         On April 21, 1997, Davenport, proceeding pro se, timely filed his "Motion Under § 2255 to Vacate,

Set Aside, or Correct Sentence" ("original § 2255 motion"). Davenport's original § 2255 motion raised four

claims: (1) The substance involved did not meet the definition of "crack cocaine" because it did not contain

sodium bicarbonate, (2) his sentence was based on an erroneous amount of drugs because the calculated

weight included the moisture in the cocaine-based substance, (3) the government knowingly allowed a key

government witness to perjure himself by falsely claiming that he did not expect to receive any benefits for

testifying against Davenport, and (4) his counsel was ineffective for failing to raise the preceding three issues.

         On May 29, 1997, the government filed its response to Davenport's original § 2255 motion. On June

23, 1997, Davenport filed a motion to dismiss his original § 2255 motion without prejudice. Davenport's

motion to dismiss also requested that, in the event his motion to dismiss without prejudice was denied, he be

granted leave to amend his original § 2255 motion "with several other issues." In an order dated October 1,

1997, the magistrate judge declined to dismiss Davenport's original § 2255 motion,2 but stated that Davenport

"shall be given the opportunity to amend his petition, which was originally filed on April 21, 1997." The

magistrate judge, however, cautioned Davenport, stating: "[Davenport] is advised that no court has yet

conclusively determined that amendments to § 2255 petitions, and in particular those which add new or

additional grounds for relief as [Davenport] seeks to file, relate back to the time of filing the original petition."

         Davenport filed an amended § 2255 motion on November 6, 1997, which was more than six months

after the AEDPA deadline. Davenport's amended § 2255 motion raised three new ineffective assistance of

counsel claims. Davenport's three new claims were that his counsel was ineffective for: (1) allowing

Davenport to be sentenced based on three grams of cocaine that were not part of the same course of conduct

as the other forty-nine grams of cocaine, (2) relying on a summary lab report instead of requesting the




    2
      The magistrate noted that dismissal "would in all likelihood bar [Davenport] from seeking further
collateral relief because of the recently enacted one-year statute of limitations for filing of § 2255 motions."


                                                         2
complete lab report analyzing the three grams of cocaine, and (3) failing to advise him that a plea agreement

might be possible.

         In a report and recommendation, the magistrate judge determined that the three new claims in

Davenport's amended § 2255 motion did not relate back to the date of the filing of his original § 2255 motion

and were time-barred under the AEDPA. The magistrate judge also recommended denying Davenport's

timely filed claims, finding that they were either procedurally barred or lacked merit.3 Adopting the

magistrate judge's report and recommendation, the district court denied Davenport's § 2255 motion.

Davenport timely appealed. The district court issued a certificate of appealability limited to "whether an

otherwise untimely amendment to a timely filed motion pursuant to Section 2255 relates back to the date of

the original motion."4

                                             II. DISCUSSION

         When it passed the AEDPA, Congress prescribed a one-year statute of limitations on § 2255

motions. See 28 U.S.C. § 2255.5 This limitation retroactively applied to defendants whose convictions and

sentences became final prior to April 24, 1996, the effective date of the AEDPA, and those defendants had

until April 23, 1997 to file their § 2255 motions. See Goodman v. United States, 

, 1337 (11th

Cir.1998). Thus, Davenport's claims in his original § 2255 motion were timely filed, but the new claims in

his amended § 2255 motion were not filed until November 6, 1997, and were untimely. Therefore,




  3
    The magistrate judge found that (a) Davenport's claims—that the substance was not "crack cocaine" and
a witness testified falsely—were not raised on direct appeal and were procedurally defaulted; (b) his claim
about the moisture content of the drugs lacked merit; and (c) he had not demonstrated prejudice as a result
of his counsel's failure to raise these claims.
  4
   Rule 15 of the Federal Rules of Civil Procedure applies to civil actions brought under 28 U.S.C. § 2255.
"Application of Rule 15(c) is reviewed for abuse of discretion" Powers v. Graff, 

, 1226 (11th
Cir.1998).
   5
   Section 2255 has three provisions that provide for later dates from which the statute runs, but none is
implicated here. See 28 U.S.C. § 2255.

                                                     3
Davenport's new claims are barred unless they "relate back" under Rule 15(c) of the Federal Rules of Civil

Procedure.6

           Specifically, Rule 15(c) provides that "[a]n amendment of a pleading relates back to the date of the

original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P.

15(c)(2).7 "Relation back" causes an otherwise untimely claim to be considered timely by treating it as if it

had been filed when the timely claims were filed. Therefore, the new claims in Davenport's amended § 2255

motion will relate back and be considered timely if they "arose out of the conduct, transaction, or occurrence"

set forth in his original § 2255 motion.

           This Court has not addressed Rule 15(c) in the context of a § 2255 motion. However, three circuits

have addressed this precise issue. All three circuits held that for an untimely § 2255 claim to "relate back"

under Rule 15(c), the untimely claim must have more in common with the timely filed claim than the mere

fact that they arose out of the same trial and sentencing proceedings. See United States v. Pittman, 

(4th Cir.2000); United States v. Duffus, 

(3d Cir.), cert. denied, --- U.S. ----, 

,

(1999); United States v. Craycraft, 

(8th Cir.1999). Instead, in order to relate

back, the untimely claim must have arisen from the "same set of facts" as the timely filed claim, not from

separate conduct or a separate occurrence in "both time and type." 

("both time and




       6
     On appeal, Davenport asserts for the first time that the government waived the AEDPA statute of
limitations defense. That waiver issue, however, was not covered by the certificate of appealability ("COA"),
and our "review is limited to the issues specified in the COA." Murray v. United States, 

, 1251
(11th Cir.1998).
   7
    On appeal, counsel for Davenport suggests that Rule 15(c)(1) may be the better analysis. Rule 15(c)(1)
provides that an amendment relates back when "relation back is permitted by the law that provides the statute
of limitations applicable to the action." This theory is misguided because the Advisory Committee Note is
clear that (c)(1) was added to ensure that if the controlling body of limitations law afforded a more forgiving
principle of relation back than the one provided in Rule 15, then the more forgiving principle should be
available to save the claim. Fed R. Civ. P. 15 advisory committee's note. The AEDPA, which is the
applicable controlling law, does not evince a more forgiving principle.

                                                       4
type"); 

("same set of facts"); 

("same set of facts" and

"both time and type").

        For example, in United States v. Craycraft, the Eighth Circuit held that an untimely claim of

ineffective counsel for not filing an appeal did not relate back to timely claims of ineffective counsel for not

pursuing a downward departure, not objecting to the characterization of the drugs, and not raising challenges

to his prior state conviction. 

. The court observed that amendments to a

pleading under Rule 15(c) "relate back" "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." 

The

court determined that "[i]f the ineffective conduct alleged by Craycraft in his first petition cannot be said to

have arisen out of the same set of facts as his amended claim, his amendment cannot relate back and his claim

must be time-barred since it was filed after the statutory period of limitation." 

concluded that

counsel's "[f]ailing 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." 

by the Eighth Circuit, "[t]he rationale of Rule 15(c) is that a party who has been

notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitation

were intended to provide." 

noted that "Craycraft's original complaint alleged deficiencies of

representation distinctly separate from the deficiency alleged in his amendments." Thus the Eighth Circuit

concluded that "[w]e cannot say that his original petition would provide notice of such a different sort of

theory" and "[t]herefore, the amendment cannot relate back under Rule 15(c) and it must be time barred."

Id.8




   8
    Similarly this Circuit has observed that "[t]he critical issue in Rule 15(c) determinations is whether the
original complaint gave notice to the defendant of the claim now being asserted." Moore v. Baker, 

, 1131 (11th Cir.1993) (medical malpractice claim) (citing Woods Exploration & Producing Co., Inc.
v. Aluminum Co. of Am., 

, 1299-1300 (5th Cir.1971)).

                                                        5
        The Third Circuit found "Craycraft to be compelling precedent" and reached the same result in

United States v. Duffus, 

, 337 (3d Cir.), cert. denied, --- U.S. ----, 

, 

(1999). Duffus filed a timely § 2255 motion asserting that the district court incorrectly attributed fifty

kilograms of cocaine to him and that his attorney was ineffective for failing to assert on appeal insufficiency

of evidence to convict him of money laundering and failing to object at sentencing to the use of a recently

amended guideline. 

Duffus's proposed untimely amendment alleged another ineffective assistance

of counsel claim, but this time for counsel's failing to move to suppress certain evidence. The Third Circuit

held that "while Duffus asserted in his initial motion that his attorney had been ineffective, the particular

claim with respect to failing to move to suppress evidence was completely new." 

Finding the

untimely amendment did not relate back under Rule 15(c), the Third Circuit concluded that "[a] prisoner

should not be able to assert a claim otherwise barred by the statute of limitations merely because he asserted

a separate claim within the limitations period." 

        The Fourth Circuit reached a similar result in United States v. Pittman, 

(4th Cir.2000).

Pittman's timely § 2255 motion alleged that (1) the district court lacked jurisdiction to enhance his sentence,

(2) the enhancement for a prior conviction was improper, and (3) the government failed to establish that the

drugs were "crack cocaine." See 

After the AEDPA deadline passed, Pittman filed a motion to

amend raising two new claims: (1) the enhancement for obstruction of justice was improper and (2) his

counsel was ineffective for not filing an appeal. Citing Craycraft, the Fourth Circuit concluded that "[t]hese

new claims do not relate to his original claims because they arise from separate occurrences of both time and

type." 

(quotation omitted). Regarding the new enhancement for obstruction of justice, the Fourth

Circuit noted that "[w]hile this claim has the same form as the original claims for improper enhancement, it

arises out of wholly different conduct." 

of justice enhancement arose from failure to

appear at sentencing, whereas the other enhancements arose from a prior conviction and a finding that the

drugs at issue were crack cocaine. The Fourth Circuit expressly rejected Pittman's argument that "both



                                                      6
petitions allege constitutional defects surrounding the same 'occurrence'—[Pittman's] trial and penalty

phases," reasoning as follows:

        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 underlying
        conviction and sentence. Such a broad view of "relation back" would undermine the limitations
        period set by Congress in the AEDPA. See 

(granting an untimely and
        unrelated 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").

.

         Guided by these decisions, we turn to Davenport's claims and conclude that his three new claims in

his amended § 2255 motion did not arise from the same set of facts as his original claims, but arose from

separate conduct and occurrences in both time and type. In his original § 2255 motion, Davenport claimed

his counsel was ineffective for not objecting that the drugs Davenport had were not "crack cocaine," because

they lacked sodium bicarbonate, for not objecting to the drug weight as improperly including certain moisture

content, and for not asserting that the government allowed its witness to perjure himself by claiming he

expected no benefit. In contrast, Davenport's three new claims were that his counsel was ineffective for (1)

allowing Davenport to be sentenced based on three grams of cocaine that were not part of the same course

of conduct as the other forty-nine grams of cocaine, (2) relying on a summary lab report instead of requesting

the complete lab report, and (3) failing to advise him that a plea agreement might be possible.

        Although Davenport's original § 2255 motion challenged the moisture content and the lack of sodium

bicarbonate in the drugs and counsel's failure to raise those issues, his original motion gives no indication that

three grams in one drug transaction were not part of the same course of conduct or a common scheme of the

other larger drug transaction and does not allege that his counsel was ineffective for not exploring this issue.

The original claims thus dealt with the chemical makeup of the drugs, whereas the amended claims addressed

the relationship between the drug transactions and his counsel's having improperly relied on a one-page lab



                                                        7
summary instead of obtaining the full eleven-page lab report. Regarding the new claim asserting counsel's

failure to advise Davenport of a possible plea agreement, Davenport's original § 2255 motion contains no

mention of any such pre-trial activity or inactivity. Thus, Davenport's three new claims do not arise out of

the same set of facts as his original claims, but arose from separate conduct and occurrences in both time and

type.

        As a result, the three new claims in Davenport's amended § 2255 motion do not relate back to the date

of his timely filed § 2255 motion. The district court correctly determined that the three new claims were

time-barred under the AEDPA.

        AFFIRMED.




                                                      8