UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
December 11, 1997
TO: All recipients of the captioned order and judgment
RE: 96-8092 USA v. Baker
November 14, 1997
Please be advised of the following correction to the captioned decision:
On page four of the court’s order and judgment, on the first line of the first
paragraph, the words “a search warrant executed against his trailer was
unconstitutional” following the number “1)” have been changed to read “search
warrants executed against his property were unconstitutional.”
Please make the appropriate correction.
Very truly yours,
Patrick Fisher, Clerk
Beth Morris
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 14 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-8092
(D.C. No. 96-CV-91)
VERNON EUGENE BAKER, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
Vernon Eugene Baker appeals from the district court’s denial of his motion
to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Baker was
originally convicted on two counts: possession of a controlled substance with
intent to distribute and using a firearm during a drug trafficking offense. After
we affirmed his conviction, see United States v. Baker, 30 F.3d 1278 (10th Cir.
1994), Baker filed a § 2255 motion. He presented various arguments, including a
claim that his conviction for use of a firearm during a drug trafficking offense
should be vacated in light of the Supreme Court’s decision in Bailey v. United
States, 116 S. Ct. 501 (1995). The district court agreed and vacated Baker’s
conviction and sentence on that count, while rejecting the remaining issues. The
court ruled that Baker should be resentenced on the remaining count of conviction
for possession of a controlled substance with intent to distribute, after
consideration whether his sentence should be enhanced for possession of a
weapon in connection with the commission of a drug offense. Baker’s motion for
reconsideration on the remaining issues was denied. After the filing of a
supplemental presentence report, Baker was resentenced based on a joint
stipulation with the government. Pursuant to that stipulation, Baker’s guideline
range was recalculated, and the district court sentenced him to the lowest sentence
in that range.
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In this appeal, Baker challenges the district court’s ruling on his remaining
issues, all of which are premised upon Baker’s claims of ineffective assistance of
counsel. On appeal, Baker contends that the district court erroneously concluded
that most of his § 2255 issues were procedurally barred because he had failed to
bring them on direct appeal. Baker is correct. As this court noted in United
States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996), issues based on ineffective
assistance of counsel claims are an exception to the procedural bar rule. Pursuant
to United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (en banc), Baker can
bring his habeas claims for the first time in his § 2255 motion, based on his
allegations of ineffective assistance of counsel as cause for his failure to raise the
issues earlier. See Lopez, 100 F.3d at 117. Although the district court concluded
that most of Baker’s claims were procedurally barred, it also addressed and
rejected his claims on the merits. Therefore, we can consider Baker’s arguments
on appeal in light of the district court’s rulings on the merits of his claims.
The district court denied Baker a certificate of appealability. 1 Baker filed a
pleading essentially reurging his request for a certificate of appealability.
1
In order to appeal the district court rulings, Baker must obtain a certificate
of appealability pursuant to 28 U.S.C. § 2253(c). Because his § 2255 motion was
filed with the district court after enactment of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996)
(AEDPA), provisions of that act requiring federal habeas appellants to obtain a
certificate of appealability apply in this case. See United States v. Kunzman,
No. 96-1310, 1997 WL 602507, at *1 & n.2 (10th Cir. Oct. 1, 1997).
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Accordingly, we must first decide whether a certificate of appealability should
issue. See United States v. Simmonds, 111 F.3d 737, 740 (10th Cir. 1997).
On appeal, Baker contends that: 1) search warrants executed against his
property were unconstitutional, 2) he was incorrectly sentenced on the basis of
d-methamphetamine where the government presented no evidence at sentencing
on the type of methamphetamine involved, 3) the district court communicated ex
parte with the jurors during deliberations, and 4) the court did not state its reasons
for originally sentencing Baker in the middle of the applicable sentencing
guideline range. Based on our review of these issues, the parties’ arguments, the
record on appeal and the applicable law, we conclude that only one of the issues
meets the applicable standard. AEDPA states that a certificate of appealability
may issue only if the appellant has “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c); see Lennox v. Evans, 87 F.3d 431, 433
(10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part by
Kunzman, 1997 WL 602507. A petitioner meets this standard if he shows that his
issues “are debatable among jurists, or that a court could resolve the issues
differently, or that the questions deserve further proceedings.” United States v.
Sistrunk, 111 F.3d 91, 91 (10th Cir. 1997). We conclude that Baker’s second
issue, regarding his sentencing based on d-methamphetamine, meets this standard
and will be considered on appeal.
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Baker argues that the district court erred in sentencing him on the basis of
d-methamphetamine. Under the version of the sentencing guidelines applicable to
Baker’s conduct, 2 “[t]he sentencing difference between D-methamphetamine and
L-methamphetamine is significant.” United States v. Deninno, 29 F.3d 572, 579
(10th Cir. 1994) (noting an equivalency ratio of approximately 25 to 1 between
l- and d- types). Baker correctly notes that the government presented no evidence
on this issue at trial and that the confiscated drugs were never tested. Further, he
notes that his counsel failed to both object at trial and raise the issue on direct
appeal. Although the district court concluded that counsel’s representation was
not ineffective on this point, we have since decided that failure to raise this issue
at sentencing amounts to ineffective assistance of counsel. See United States v.
Glover, 97 F.3d 1345, 1349-50 (10th Cir. 1996).
Here, however, the district court dealt with the merits of Baker’s claim,
finding that the methamphetamine involved was more than likely
d-methamphetamine. In making this finding, the court relied on evidence
presented at trial regarding Baker’s ongoing sales of methamphetamine, on an
informant’s statements about the excessive use of the drug by him and his
2
The distinction between the types of methamphetamine in the United States
Sentencing Guidelines was eliminated as of November 1, 1995, and the
amendment applies to conduct occurring on or after that date. See United States
v. Glover, 97 F.3d 1345, 1347 n.2 (10th Cir. 1996); United States v. Apfel,
97 F.3d 1074, 1075 n.2 (8th Cir. 1996).
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girlfriend, and on affidavits by DEA forensic chemists Skinner and Ely, cf. United
States v. Lande, 40 F.3d 329, 330-31 (10th Cir. 1994) (discussing identical
affidavits). “We review a district court’s factual finding that a specific isomer of
methamphetamine was involved in criminal activity for clear error.” Id. at 330.
Based on our review of the record, we conclude that the district court’s finding in
this case was not clearly erroneous.
Baker also argues that the government’s failure to test the drugs and its
failure to disclose to him that no testing had been done violated its duty to reveal
material exculpatory evidence, as set out in Brady v. Maryland, 373 U.S. 83, 87
(1963). He claims that his sentence based on d-methamphetamine is evidence of
the resulting prejudice of counsel’s failure to raise the issue. We conclude that
the disclosure duty announced in Brady does not apply here. The government’s
failure to test the methamphetamine involved is not, by itself, evidence favorable
to Baker, and therefore not exculpatory under Brady.
A certificate of appealability is granted as to the arguments presented
regarding Baker’s sentencing based on d-methamphetamine. The judgment of the
United States District Court for the District of Wyoming is AFFIRMED. The
mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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