Lamont Ashley v. James A. Gammon

____________ No. 95-1806 ____________

Lamont Ashley, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri James A. Gammon, * * [UNPUBLISHED] Appellee. * ____________ Submitted: November 17, 1995 Filed: April 1, 1996 ____________ Before McMILLIAN, WOLLMAN and LOKEN, Circuit Judges. ____________

PER CURIAM.

Lamont Ashley, a Missouri state prisoner, appeals from a final order entered in the United States District Court1 for the District of Missouri, adopting the report and recommendation of the magistrate judge2 and denying Ashley's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Ashley v. Gammon, No. 4:91 CV 2332 (E.D. Mo. Feb. 24, 1995) (order adopting report and recommendation). For reversal, Ashley argues that the district court erred in (1) failing to find that his procedural default was excused by cause and prejudice and (2) denying his request for an evidentiary hearing. Ashley maintains that, but for these errors, he would have prevailed on the merits of his constitutional claim. For the reasons discussed below, we affirm.

Ashley was convicted in Missouri state court on eight counts of burglary in the second degree upon a plea of guilty entered on February 2, 1990. He was sentenced to seven concurrent terms of fifteen years imprisonment and one consecutive term of five years, for an aggregate sentence of twenty years. In determining his sentence, the trial court sentenced Ashley as a class X offender based upon Ashley's admission at his plea hearing that he had at least three prior felonies. Following his conviction, Ashley filed a motion for postconviction relief in state court claiming that he received ineffective assistance of trial counsel and that he was improperly sentenced as a class X offender. He was appointed counsel. The state court denied Ashley's motion, and his appointed counsel filed an appeal, asserting only the ineffective assistance claim. The Missouri Court of Appeals affirmed the denial of Ashley's motion for postconviction relief.3

Ashley filed this petition pro se in federal district court, seeking a writ of habeas corpus on grounds that the state trial court improperly sentenced him as a class X offender, in violation of his due process rights. Upon review, the magistrate judge recommended denial of the petition on grounds of procedural default which was not excused by cause and prejudice and which did not result in a fundamental miscarriage of justice. Ashley v. Gammon, No. 4:91 CV 2332 (Oct. 14, 1994) (magistrate judge's report and recommendation). By order dated February 24, 1995, the district court adopted the magistrate judge's report and recommendation and denied Ashley's request for an evidentiary hearing. Id. (Feb. 24, 1995).

Ashley argues that his appointed counsel, on appeal from the denial of postconviction relief in state court, was ineffective in failing either to assert the class X offender sentencing issue as an independent ground for appeal or to incorporate this issue into his ineffective assistance claim. He also maintains that it was clearly his personal intention to appeal the sentencing issue, as evidenced by his contemporaneous filings of pro se petitions for a writ of habeas corpus in the Missouri Court of Appeals and the Missouri Supreme Court, in which he did specifically raise the sentencing issue. Thus, he argues, he has demonstrated both cause and prejudice to excuse his appointed counsel's procedural default in failing to appeal the class X offender issue to the Missouri Court of Appeals in the postconviction relief proceedings. Upon review, we note that there is no constitutional right to effective assistance of postconviction relief counsel and, accordingly, ineffective assistance of postconviction relief counsel is not a basis for showing cause to overcome a procedural default in a federal habeas action. Coleman v. Thompson, 501 U.S. 722, 752-54 (1991).

Ashley separately argues that the district court erred in denying him an evidentiary hearing pursuant to 28 U.S.C. § 2254(d).

Ashley contends that he never received a full and fair hearing in state court and that the factual dispute regarding his actual criminal record had never been fully developed and properly decided in state court. Even if we were to assume that Ashley has alleged facts which, if proven, would entitle him to relief, we hold that the record before the district court was adequate and that Ashley has not shown, nor does it appear, that any of the grounds for requiring such an evidentiary hearing, as set forth in § 2254(d), has been established. We therefore hold that the district court did not err in declining to hold an evidentiary hearing in the present case. Accordingly, the order of the district court is affirmed. See 8th Cir. R. 47B.

A true copy.

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