UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30019
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
JEFFERY R. ACKLEN
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(93-CV-1043)
August 9, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Acklen pleaded guilty to distribution of methamphetamine and
conspiring to manufacture methamphetamine and was sentenced on the
basis of d-methamphetamine. His motion under 28 U.S.C. § 2255 was
denied by the district court; and we vacated that judgment and
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
remanded.2 On remand, the district court again denied relief. We
affirm.
Originally Acklen claimed trial counsel was ineffective for
failure to contend at sentencing that the drug involved was l-
methamphetamine and not d-methamphetamine. He made only conclusory
allegations however. We remanded stating:
On remand, Acklen should tender some specific, verified
basis or evidence, beyond his mere naked assertion or
belief, that the drug was in fact l-methamphetamine. If
Acklen makes such a showing, he may be entitled to
limited discovery and an evidentiary hearing.
On remand, Appellant made no such showing. He simply argued
that since the isomer of the drug could not be identified the rule
of lenity required that the drug be regarded as l-methamphetamine.
The district court recognized that the motion could be denied on
that basis alone and so held. However, it allowed Appellant an
evidentiary hearing at which the evidence established that the drug
involved was made with a precursor chemical that would have
produced a 50-50 mixture of d-methamphetamine and l-
methamphetamine. Accordingly, the district court correctly found
that Acklen had failed to show that he had been prejudiced by his
attorney’s failure to raise the issue.
Going even further, the district court held that Acklen also
2
United states v. Acklen, 47 F.3d 739 (5th Cir. 1995).
2
failed to demonstrate prejudice because even had trial counsel
raised the issue, there was no reasonable probability that the
court would have been persuaded to adopt what would have been a
novel argument at that time, citing United States v. Seyfert, 67
F.3d 544, 549 (5th Cir. 1995). We see no error in this holding.
AFFIRMED.
3