### 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 th e 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 aga inst his trailer was unconstitutional” following the number “1)” have be en changed to read “search warrants executed against his property were unconst itutional.” Please make the appropriate correction. Very truly yours, Patrick Fisher, Clerk

Beth Morris Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. VERNON EUGENE BAKER,

Defendant-Appellant. No. 96-8092 (D.C. No. 96-CV-91) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Vernon Eugene Baker appeals from the district court ’s denial of his motion to vacate his conviction and sentence pursuant to 2 8 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 d rug 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 v arious arguments, including a claim that his conviction for use of a firearm duri ng a drug trafficking offense should be vacated in light of the Supreme Court’s d ecision 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 reject ing 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 enhanc ed 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 resenten ced based on a joint stipulation with the government. Pursuant to that stipulation, Baker’s guideline range was recalculated, and the district court sent enced him to the lowest sentence in that range.1 In order to appeal the district court rulings, Bake r 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 th e 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 h abeas appellants to obtain a certificate of appealability apply in this case. S ee United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *1 & n.2 (10th Cir. Oct. 1, 1997). -3- In this appeal, Baker challenges the district court ’s ruling on his remaining issues, all of which are premised upon Baker’s clai ms of ineffective assistance of counsel. On appeal, Baker contends that the distri ct 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 th e procedural bar rule. Pursuant to United States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc), Baker ca n 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 con cluded that most of Baker’s claims were procedurally barre d, it also addressed and rejected his claims on the merits. Therefore, we c an 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 ap pealability. 1 Baker filed a pleading essentially reurging his request for a certificate of appealability.-4-

Accordingly, we must first decide whether a certifi cate 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 incorrect ly sentenced on the basis of d-methamphetamine where the government presented no evidence at sentencing on the type of methamphetamine involved, 3) the dis trict 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 th e applicable sentencing guideline range. Based on our review of these issu es, the parties’ arguments, the record on appeal and the applicable law, we conclud e that only one of the issues meets the applicable standard. AEDPA states that acertificate of appealability may issue only if the appellant has “made a substan tial 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 standardif 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 th at Baker’s second issue, regarding his sentencing based on d-methamph etamine, meets this standard and will be considered on appeal.2 The distinction between the types of methamphetamin e in the United States

Sentencing Guidelines was eliminated as of November1, 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 S tates v. Apfel , 97 F.3d 1074, 1075 n.2 (8th Cir. 1996). -5- Baker argues that the district court erred in sente ncing him on the basis of d-methamphetamine. Under the version of the senten cing guidelines applicable to Baker’s conduct, 2 “[t]he sentencing difference between D-methampheta mine and L-methamphetamine is significant.” United States v . Deninno , 29 F.3d 572, 579 (10th Cir. 1994) (noting an equivalency ratio of ap proximately 25 to 1 between l- and d- types). Baker correctly notes that the g overnment presented no evidence on this issue at trial and that the confiscated dru gs were never tested. Further, he notes that his counsel failed to both object at tri al and raise the issue on direct appeal. Although the district court concluded thatcounsel’s representation was not ineffective on this point, we have since decide d 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 me rits of Baker’s claim, finding that the methamphetamine involved was more than likely d-methamphetamine. In making this finding, the cou rt 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-6-

girlfriend, and on affidavits by DEA forensic chemi sts 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 f or clear error.” Id. at 330. Based on our review of the record, we conclude thatthe 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 rai se the issue. We conclude that the disclosure duty announced in Bradydoes 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 Wy oming is AFFIRMED. The mandate shall issue forthwith. Entered for the Court David M. Ebel Circuit Judge