UNITED STATES COURT OF APPEALS
Filed 4/19/96
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA, )
)
Respondent-Appellee, )
)
v. ) No. 95-6427
) (D.C. No. CIV-95-1184-R)
BARBARA AFLLEJE-TORRES, ) (W. Dist. of Okla.)
)
Petitioner-Appellant. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the appellate record, this
panel has determined unanimously to honor the parties’ request for
a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
submitted without oral argument.
Barbara Aflleje-Torres (Aflleje-Torres), appearing pro se and
having been granted leave to proceed in forma pauperis, appeals the
district court’s denial of her Motion to Vacate, Set Aside, or
Correct Sentence filed pursuant to 28 U.S.C. § 2255.
In 1994, Aflleje-Torres was convicted of multiple drug-related
offenses in connection with a conspiracy to distribute
methamphetamine. On direct appeal, we affirmed Aflleje-Torres’
convictions and sentences for conspiracy to possess with intent to
distribute methamphetamine (Count I), distribution of
methamphetamine (Counts III and IV), and use of a communication
facility to facilitate the distribution of methamphetamine (Count
VI). See United States v. Torres, 53 F.3d 1129 (10th Cir.), cert.
denied, ___ U.S. ___ (1995).
Thereafter, Aflleje-Torres filed a § 2255 petition alleging
that: (1) the district court erred in basing her sentence on the
quantity of drugs involved in the entire conspiracy; (2) the
district court erred in sentencing her based on d- rather than l-
methamphetamine;1 and (3) her trial counsel was constitutionally
ineffective in a variety of ways.
1
At the time Aflleje-Torres was sentenced, the
guidelines distinguished between “methamphetamine,” which
commonly refers to d-methamphetamine, and “l-methamphetamine.”
For purposes of calculating the base offense level, 1 gram of
methamphetamine was equivalent to 1 kilogram of marijuana and 1
gram of l-methamphetamine was equivalent to 40 grams of
marijuana. U.S.S.G. § 2D1.1, Drug Equivalency Tables.
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On November 8, 1995, the district court denied her § 2255
motion finding/concluding that: her challenge to the quantity of
drugs attributable to her was raised and rejected on direct appeal
and, therefore, cannot be raised again; she procedurally defaulted
on the issue of whether the district court erred in sentencing her
based on d- rather than l-methamphetamine and she did not show
cause for the default; and she failed to show any prejudice as a
result of any of her ineffective assistance of counsel claims. On
November 16, 1995, the district court amended its November 8, 1995
Order in light of evidence presented by Aflleje-Torres that the
methamphetamine involved in the conspiracy was composed of 35% d-
methamphetamine and to clarify that an evidentiary hearing was not
required on her ineffective assistance of counsel claims because
she failed to show that she was prejudiced by her trial counsel’s
alleged deficiencies.
On appeal, Aflleje-Torres contends that the district court
erred in denying her § 2255 petition and in failing to conduct an
evidentiary hearing. She asserts that: (1) the district court
erred in not making specific findings as to the amount of
methamphetamine attributable to her rather than the entire
conspiracy; (2) the district court erred in sentencing her based on
d- rather than l-methamphetamine; and (3) her trial counsel was
ineffective for failing to challenge the presentence report’s
calculation of her sentence based on d- rather than l-
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methamphetamine, advise her of the comparative sentences she could
expect by proceeding to trial rather than accepting a plea, and
investigate the case.
In a § 2255 motion, we review the district court’s legal
conclusions de novo, United States v. Cook, 49 F.3d 663, 665 (10th
Cir. 1995), although findings of fact underlying mixed questions of
law and fact are accorded the presumption of correctness. Manlove
v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992).
1.
On direct appeal, Aflleje-Torres challenged the quantity of
methamphetamine attributed to her. On her direct appeal, we
affirmed the district court’s finding that 1,332.45 grams of
methamphetamine were attributable to Aflleje-Torres. Absent an
intervening change in the law of the circuit, not present here,
issues disposed of on direct appeal will not be considered on a
collateral attack pursuant to a § 2255 motion. United States v.
Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (citations omitted).
2. & 3.
Aflleje-Torres did not raise her challenge to the district
court’s sentence on the basis of d- rather than l-methamphetamine
at sentencing or on direct appeal. Therefore, she may pursue this
issue in a § 2255 proceeding only if she can show cause and
prejudice resulting from that failure. See United States v.
Kissick, 69 F.3d 1048, 1054 (10th Cir. 1995). Aflleje-Torres may
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establish cause for failing to raise a claim by demonstrating that
she was denied effective assistance of counsel. Id. (citations
omitted).
In order to prevail on a claim of ineffective assistance of
counsel, a defendant must show that (1) his counsel’s performance
was constitutionally deficient, and (2) this deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); Cook, 49 F.3d at 665. Counsel’s performance is deficient
if the representation “falls below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Prejudice is
established when a defendant demonstrates “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “However, a
court may not set aside a conviction or a sentence solely because
the outcome would have been different absent counsel’s deficient
performance.” Kissick, 69 F.3d at 1055 (citing Lockhart v.
Fretwell, 506 U.S. 364, 369-70 (1993)). “Instead, in order to
establish the required prejudice, a defendant must demonstrate that
counsel’s deficient performance rendered the proceeding
‘fundamentally unfair or unreliable.’” Kissick, 69 F.3d at 1055
(citing Lockhart, 506 U.S. 369).
Assuming that Aflleje-Torres’ counsel’s performance was
constitutionally deficient, her claim must nevertheless fail
because she has failed to show prejudice. At sentencing, it was
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established that Aflleje-Torres was accountable for 1,332.45 grams
of methamphetamine. There was no discussion or any evidence
introduced regarding whether the methamphetamine involved was d- or
l-methamphetamine. See ROA, Vol. VI. However, attached to
Aflleje-Torres’ Objection to Government’s Response filed November
2, 1995, is a July 13, 1992, Report of Drug Property Collected,
Purchased or Seized.2 The report analyzes methamphetamine that was
seized from coconspirators on July 9, 1992, as 35% d-
methamphetamine.
Under the guidelines, “[i]f a mixture or substance contains
more than one controlled substance, the weight of the entire
mixture or substance is assigned to the controlled substance that
results in the greater offense level.” U.S.S.G. § 2D1.1.(c) note*.
See United States v. Decker, 55 F.3d 1509, 1513 (10th Cir. 1995).
Therefore, even assuming that counsel was obligated to raise the
issue, the evidence presented demonstrates that Aflleje-Torres’
sentence would have been the same and, thus, is neither
“fundamentally unfair” nor “unreliable.”
Finally, Aflleje-Torres’ other claims for ineffective
assistance of counsel fail because she has not demonstrated any
prejudice. Although Aflleje-Torres’ urges that she would have pled
guilty if she had been offered a plea, there is no evidence that
2
It is unclear from the record if this evidence was
presented at trial. However, new evidence may be presented in a
§ 2255 proceeding.
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the government was willing to enter into plea negotiations with her
or that a plea would have been accepted by the district court. She
has also failed to demonstrate what additional investigation was
necessary or how she was harmed by counsel’s alleged failures to
investigate.
We AFFIRM substantially for the reasons set forth in the
district court’s Order of November 8, 1995, and the district
court’s amendment thereto of November 16, 1995. The mandate shall
issue forthwith.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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