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
* This order and judgment is not binding precedent, except under the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. 

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, 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.
-2-

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. 
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). 

-3-

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. 
-4-

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. 
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). 

-5-

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
-6-

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