UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-50139
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID KINDER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-94-CA-332(W-90-CR-28-2))
_________________________________________________________________
(October 12, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner David Kinder (Kinder) appeals the district
court’s denial of his petition for habeas corpus relief pursuant to
28 U.S.C. § 2255. Kinder contends that his sentence is excessive
since the offense of conspiracy cannot trigger a career offender
enhancement under the Sentencing Guidelines (Guidelines) and that
his trial counsel was constitutionally ineffective. Because the
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
district court did not err when it denied Kinder habeas relief,
this court affirms.
I. FACTUAL BACKGROUND
The facts relevant to Kinder’s conviction are recounted
fully in published opinions from his direct appeal, United States
v. Kinder, 946 F.2d 362, 365 (5th Cir. 1991), cert. denied, 503
U.S. 987, 112 S. Ct. 1677 (1992) (Kinder I) and United States v.
Kinder, 980 F.2d 961, 962 (5th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 2376 (1993) (Kinder II). Briefly, Kinder and his
brother were arrested when they negotiated and purchased 269 ounces
of methamphetamine for $5,800 from an undercover agent in Waco,
Texas.
Kinder pleaded guilty to conspiracy to possess more than
100 grams of methamphetamine with intent to distribute, punishable
under 21 U.S.C. §§ 846 and 841(a)(1). Sentenced as a career
offender under the Guidelines,1 Kinder was ordered by the district
court to be imprisoned for 400 months, serve a five-year term of
supervised release, and to pay a mandatory assessment of $50.
II. DISCUSSION
Kinder seeks habeas corpus relief, contending that his
sentence is excessive since the offense of conspiracy cannot
trigger a career offender enhancement under the Guidelines. To
support this claim, Kinder relies on United States v. Bellazerius,
24 F.3d 698, 700-02 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.
1
Kinder has a history of criminal behavior including six prior
convictions for various offenses.
2
Ct. 375 (1994), which held that the Sentencing Commission exceeded
its authority under 28 U.S.C. § 994(h) when it applied career
offender enhancements to defendants convicted only of conspiracy.
As a result, Kinder concludes that he is entitled to relief because
his conspiracy sentence cannot be enhanced under the career
offender provisions of the Guidelines.
However, habeas corpus relief is extraordinary and “is
reserved for transgressions of constitutional rights and for a
narrow range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete miscarriage of
justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992). Viewed in this light, Bellazarius does not support Kinder’s
claim for habeas relief since technical misapplications of the
Guidelines are not cognizable under 28 U.S.C. § 2255. See United
States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994); Vaughn, 955
F.2d at 368; United States v. Williams, No. 94-50329 (5th Cir. Mar.
27, 1995) (unpublished). In different terms, a technical
misapplication of the Guidelines is not a constitutional
transgression for which the writ of habeas corpus affords any
relief.
Kinder also asserts that his trial counsel was
constitutionally ineffective both during plea bargaining and at
sentencing.2 Specifically, Kinder suggests that he was deprived of
2
Although Kinder currently points to five instances of allegedly
inadequate representation, only two were raised in his petition for habeas relief
with the district court. This court need not address the three claims not
considered by the district court. After all, “issues raised for the first time on
appeal are not reviewable by this court unless they involve purely legal questions
and failure to consider them would result in manifest injustice.” Varnado v.
3
effective counsel when his lawyer failed to object both to the
district court’s interpretation of the Guideline’s career offender
provision and to the type of methamphetamine on which his sentence
was allegedly based.3 Kinder’s assertions are meritless.
To establish that he suffered from constitutionally
ineffective counsel, Kinder must prove the two central elements of
his claim: (1) that his counsel made errors so grievous that they
deprived him of his Sixth Amendment guarantees; and (2) that this
deficient performance actually prejudiced his defense and rendered
the trial’s result unreliable. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). This court has interpreted
the second prong of Strickland to require that, in non-capital
sentences, the defendant demonstrate “a reasonable probability that
but for trial counsel’s errors the defendant’s non-capital sentence
would have been significantly less harsh.” Spriggs v. Collins, 993
F.2d 85, 88 (5th Cir. 1993) (emphasis added). Further, Kinder must
overcome the deferential judicial scrutiny paid to counsel’s
performance; “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 446
U.S. at 690, 104 S. Ct. at 2066.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citations omitted). By contrast,
Kinder’s other claims of ineffective assistance of counsel involve primarily factual
questions that risk no manifest injustice if left unanswered by this court.
3
At least two chemical compositions, or isomers, of the illicit drug
exist: D and L-methamphetamine. Of the two compositions, D-methamphetamine carries
a stiffer penalty under the Guidelines. See § 2D1.1 (Drug Equivalency Table).
Kinder argues that the government did not prove which composition he purchased, yet
the district court’s sentence allegedly assumes that it was D-methamphetamine.
4
Kinder has not established that he suffered
constitutionally inadequate representation when his counsel failed
to object to the application of the Guideline’s career offender
enhancement to his conspiracy conviction. After all, Bellazerius
was not decided until the completion of Kinder’s sentencing and
direct appellate review. Furthermore, the principle in Bellazerius
is “technically sophisticated and nonobvious,” and the court’s
opinion recognized a circuit split on the application of career
offender enhancements to conspiracy convictions. Williams, at 10
n.9. See also, Bellazerius, 24 F.3d at 701. The mere failure of
Kinder’s counsel to anticipate a change in the law does not deprive
Kinder of his constitutional right to effective assistance of
counsel. See Morse v. State of Texas, 691 F.2d 770, 772 n.2 (5th
Cir. 1982).
But Kinder also contends that he received ineffective
assistance of counsel when his lawyer did not object to the type of
methamphetamine on which the district court allegedly based his
sentence. However, because Kinder was sentenced under the career
offender provision of the Guidelines, rather than other provisions
based on drug quantity, he was not prejudiced by his counsel’s
failure to object to the specific isomer of methamphetamine
involved in the offense; the type of methamphetamine was not
relevant to Kinder’s sentence.
III. CONCLUSION
For the foregoing reasons, the district court’s denial of
§ 2255 habeas relief is AFFIRMED.
5