F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-4024
v.
(D.C. No. 96-CV-335-S)
(D. Utah)
LARRY M. JENSEN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
Defendant-appellant Larry M. Jensen (“Jensen”) pled guilty to conspiracy
to manufacture methamphetamine and received a sentence of 168 months’
imprisonment followed by five years of supervised release. That sentence was
upheld on appeal. See United States v. Jensen, 940 F.2d 1539 (10th Cir. 1991).
A subsequent motion by Jensen for reduction of his sentence pursuant to 18
*
After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
U.S.C. § 3582(c)(2), seeking retroactive application of U.S.S.G. Amendment
468, 1 was denied by the district court. That decision was affirmed on appeal. See
United States v. Jensen, 166 F.3d 1222 (10th Cir. 1999). Jensen filed a pro se
petition with the district court pursuant to 28 U.S.C. § 2255 on April 12, 1996.
The district court dismissed that petition in its entirety and Jensen now appeals
that dismissal.
Although Jensen filed his § 2255 petition in the district court before the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) took effect on
April 24, 1996, his appeal postdates AEDPA. In Slack v. McDaniel, 120 S.Ct.
1595 (2000), the Supreme Court held that a petitioner in a state habeas proceeding
under 28 U.S.C. § 2254 must now obtain a certificate of appealability (COA) if
his appeal is filed after AEDPA’s effective date, despite the fact that the petition
was filed in district court prior to AEDPA. See Slack, 120 S.Ct. at 1600.
Although Slack concerned a § 2254 petition, not a § 2255 petition, the rule it
announced is equally applicable to § 2255 petitions. See United States v. Glover,
2000 WL 743675, at **3 (June 9, 2000) (unpublished disposition) (stating that in
Slack, the Court construed AEDPA’s § 2253 COA requirement, which applies to
both §§ 2255 and 2254 proceedings, in general terms, and thus applying the rule
Amendment 468 adds an application note to U.S.S.G. §2D1.1 authorizing
1
downward departures in cases involving reverse sting operations. See U.S.S.G.
§2D1.1 cmt. n. 15.
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from Slack to a § 2255 petition). Therefore, Jensen must obtain a COA.
Although the district court did not act on the issue of a COA, the COA is deemed
denied pursuant to the General Order of October 1, 1996. See Tenth Circuit
Emergency General Order issued October 1, 1996. Pursuant to Rule 22(b) of the
Federal Rules of Appellate Procedure, Jensen’s notice of appeal is deemed an
application to this court for a COA.
On appeal, Jensen maintains that he was denied effective assistance of
counsel at trial because his attorney failed to require the government to prove that
L-ephedrine, which produces D-methamphetamine, 2 was the precursor chemical
being purchased and used by Jensen. 3 On this issue, the magistrate judge issued a
report and recommendation that an evidentiary hearing be held to determine the
type of methamphetamine involved in Jensen’s offense. (See Magistrate Report
and Recommendation of March 2, 1998, at 11.) The district court, however,
determined that no evidentiary hearing was necessary because sufficient evidence
2
The drug methamphetamine exists in two forms, L-methamphetamine and
D-methamphetamine. L-methamphetamine, which is produced from D-ephedrine,
has little or no physiological effect when ingested. D-methamphetamine, which,
as noted above, is produced from L-ephedrine, produces the high sought by the
drug’s users. See United States v. Gillis, 114 F.3d 1198, at **1, 3 (10th Cir.
1997) (unpublished disposition).
3
At the time of Jensen’s sentence, the Sentencing Guidelines treated
manufacture of L-methamphetamine much less severely than manufacture of D-
methamphetamine. See e.g., United States v. Dudden, 65 F.3d 1461, 1470 (9th
Cir. 1995).
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existed in the record showing that L-ephedrine was the precursor chemical
purchased and used by Jensen in manufacturing the methamphetamine. See
Jensen v. United States, No. 2:96-CV-0335-S, slip op. (D. Utah Dec. 22, 1999).
Because L-ephedrine produces D-methamphetamine, no hearing was necessary to
determine that the methamphetamine Jensen intend to produce was D-
methamphetamine.
Our review of the record shows no error in the district court’s conclusion.
There was sufficient evidence to show that L-ephedrine was the chemical being
purchased and used. (See Jensen Affidavit, Aple. Br., Attachment B (referring to
“elephedrine”); Objection to Pre-Sentence Report, at 3 n.1. (“The continued
reference to ephedrine is incorrect, and should be elephedrine.”); Report of
William Epstein, Aple. Br., Attachment F (stating that L-ephedrine is discussed
on the audiotapes obtained from the DEA).) Therefore, even if Jensen could
show that his counsel was constitutionally deficient in not challenging the
sentence calculation based on D-methamphetamine, he cannot show that he
suffered the requisite prejudice under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the record contains sufficient
evidence to address Jensen’s claim, there was no error in not holding an
evidentiary hearing on the issue.
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Jensen also argues on appeal that the district court judge’s ruling was
biased and prejudicial towards him. We find the argument of judicial bias to be
without merit. Contrary to Jensen’s arguments, the district court ruling was
consistent with Tenth Circuit law.
Other arguments concerning failure to appoint counsel and a departure
under U.S.S.G. §5K2.12 also lack merit. There is no constitutional or statutory
right to appointment of counsel in a § 2255 proceeding when relief is denied
without an evidentiary hearing. See Swazo v. Wyoming, 23 F.3d 332, 333 (10th
Cir. 1994). As the magistrate judge found, the downward departure claim is
procedurally barred, and Jensen has not shown cause and prejudice to overcome
that bar. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct.1584, 1594,
71 L.Ed.2d 816 (1982).
Jensen’s application for a COA is DENIED, and the appeal is DISMISSED.
His motion to proceed in forma pauperis is GRANTED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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