NOTE: Attachment not available electronically
*This order and judgment is not binding precedent, except under the doctrines of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.

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UNITED STATES COURT OF APPEALS

Filed 4/2/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 95-3362

v. D. Kansas

GERALD L. CARLOS,

Defendant - Appellant.

(D.C. No. 95-CV-3063) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and LOGAN, 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.
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Gerald L. Carlos appeals the district court’s denial of his in forma pauperis pro se

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He

contends that: 1) his conviction, which followed an administrative forfeiture of his

property, was barred by the double jeopardy clause of the Fifth Amendment; 2) the

evidence was insufficient to prove that the controlled substance he possessed was crack

cocaine; 3) his counsel was ineffective in failing to move for an independent evaluation

of the evidence; and 4 ) the district court erred in finding that he was procedurally barred

from bringing the sufficiency of the evidence claim and in failing to provide an

evidentiary hearing. We affirm.

Following a jury trial, Carlos was convicted on seven counts of drug related crimes

and one count of carrying a firearm during a drug trafficking offense. On appeal, the only

issue he raised related to his conviction on the firearm count, which we affirmed in an

unpublished order and judgment. See United States v. Carlos, No. 92-3341, 1993 WL

265149 (10th Cir. July 14, 1993). 

In this § 2255 appeal, we review de novo the district court’s rulings on legal

questions, United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir. 1995), and we review

its findings of fact for clear error. Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir.

1994), cert. denied, 115 S. Ct. 2564 (1995). The district court thoroughly considered

Carlos’ claims, taking into account the interplay between the ineffectiveness claim and

the underlying grounds upon which Carlos attacks his sentence. Having fully reviewed
1Carlos’ claim of ineffectiveness of counsel requires the court to examine the

merits of the disputed issues to determine whether a procedural bar applies. See United

States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc); United States v. Cook,

45 F.3d 388, 392 (10th Cir. 1995). If the issue lacks merit, “counsel’s failure to raise it

‘does not constitute constitutionally ineffective assistance of counsel.’” Cook, 45 F.3d at

393 (quoting United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993)). 

The district court noted that the record clearly establishes the sufficiency of the

evidence regarding the drug’s identification, and it also noted that Carlos has alleged no

facts to dispute the charge that he distributed crack cocaine. In the absence of any good

faith belief that the distributed drug was other than charged, counsel could not reasonably

have been expected to seek outside analysis. Thus, Carlos failed to demonstrate

ineffectiveness or any other ground that would constitute cause. 

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the matter, we affirm for substantially the reasons stated in the court’s memorandum and

order, a copy of which is attached hereto. 

Additionally, we note that this court has recently joined the circuits cited by the

district court in concluding that jeopardy does not attach in an uncontested administrative

forfeiture. United States v. German, 76 F.3d 315 (10th Cir. 1996). Moreover, although

the district court determined that Carlos’ sufficiency of the evidence claim was

procedurally barred, it nonetheless reached the merits of the claim.1 We find no error in

its conclusions. Accordingly, Carlos has alleged no facts which would entitle him to

relief, and the district court did not abuse its discretion in denying him an evidentiary

hearing. See United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995); United States

v. Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985). 

AFFIRMED.
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ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge