F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 11 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5206
(D.C. No. 94-CV-995-E
ROBERT LEE GLOVER, &
89-CR-56-E)
Defendant-Appellant. (N.D. Okla.)
ORDER AND JUDGMENT *
Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the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.
**
Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
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 appeal arises from defendant’s second motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255. Defendant pled guilty to a
two-count indictment charging conspiracy to distribute, and aiding and abetting
the distribution of methamphetamine. He did not take a direct appeal. In 1991,
defendant filed his first § 2255 motion. That motion was denied, and this court
affirmed the denial in United States v. Glover , No. 91-5186, 1992 WL 95455
(10th Cir. Apr. 30, 1992). Defendant filed his second § 2255 motion on
October 25, 1994, and the district court denied the motion. This court reversed
the denial, holding that defendant received ineffective assistance of counsel
because his defense attorney failed to challenge his sentence on the government’s
lack of proof regarding whether the methamphetamine was D-methamphetamine
or L-methamphetamine. United Stated v. Glover , 97 F.3d 1345, 1349-50 (10th
Cir. 1996). We remanded the case to the district court, recognizing that, on
remand, the district court might want to explore a possible procedural obstacle to
defendant’s motion in his failure to raise the ineffective assistance of counsel
claim in his first § 2255 motion.
Upon remand, the district court ordered the parties to brief the procedural
issue and found that defendant’s second § 2255 motion was an abuse of the writ.
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Defendant appeals from that order. Finding no cause for defendant’s failure to
raise the issue in his first § 2255 motion, and finding that no fundamental
miscarriage of justice would occur if defendant were not permitted to raise the
issue in his second motion, the district court dismissed the § 2255 motion for
abuse of the writ. In this context, “[w]e review the district court’s factual
findings for clear error and its legal conclusions de novo.” Green v. Reynolds , 57
F.3d 956, 957 (10th Cir. 1995). We affirm.
To excuse his procedural error in neglecting to include his ineffective
assistance of counsel argument in his first § 2255 motion, defendant must show
either cause for failing to raise the issue and prejudice resulting therefrom or
“that a fundamental miscarriage of justice would result from a failure to entertain
the claim.” United States v. Richards , 5 F.3d 1369, 1370 (10th Cir. 1993)
(quotation omitted). Defendant concedes that he did not raise the issue in his first
motion, but he argues that the line of judicial authority finding defense counsel
ineffective for failing to object to the government’s lack of proof at sentencing of
whether the methamphetamine is of the D or L isomer did not come out until after
he filed his first § 2255 motion. “The mere fact that others had not raised this
issue first is not sufficient cause. ‘[T]he question is not whether subsequent legal
developments have made counsel’s task easier, but whether at the time of the
default the claim was ‘available’ at all.’” Id. at 1371 (quoting Smith v. Murray ,
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477 U.S. 527, 537 (1986)). As the district court found, defendant cannot argue
that the claim was unavailable to him at the time of his sentencing; this court held
that his defense counsel was ineffective for failing to raise the claim. See Glover ,
97 F.3d at 1349-50.
Neither can defendant show that a fundamental miscarriage of justice
would occur if he is not permitted to bring the claim in his successive motion.
Defendant’s fundamental miscarriage of justice claim boils down to a question of
whether defendant is actually innocent of the offense. See Murray v. Carrier , 477
U.S. 478, 495-96 (1986) . Defendant is claiming only that, because of his
counsel’s failure to raise the D versus L issue, he was illegally sentenced based
on the stricter guidelines for D-methamphetamine without the government
meeting its burden of proof on the issue. A claim that a defendant in a noncapital
case should have received a lesser sentence, however, does not constitute a claim
that he is actually innocent of the offense or that he did not commit the crime. See
Richards , 5 F.3d at 1371.
Defendant has shown neither cause for failing to raise the ineffective
assistance of counsel in his first § 2255 motion, nor that a fundamental
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miscarriage of justice will occur if he is not permitted to present his claim at this
juncture. Therefore, we AFFIRM the district court’s dismissal of defendant’s
§ 2255 motion as an abuse of the writ. 1
Entered for the Court
Wesley E. Brown
Senior District Judge
1
Defendant applied for a certificate of appealability in this case. Because
the § 2255 motion was filed before the effective date of the Antiterrorism and
Effective Death Penalty Act, the provisions of that act requiring a certificate of
appealability do not apply. See United States v. Kunzman , 125 F.3d 1363, 1364
n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998).
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