* This order and judgment is not binding precedent, e xcept under the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

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

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

### AUG 11 1998 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT LEE GLOVER,

Defendant-Appellant. No. 97-5206 (D.C. No. 94-CV-995-E

& 89-CR-56-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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. This appeal arises from defendant’s second motion t o vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Defendant pled guilty to a two-count indictment charging conspiracy to distrib ute, and aiding and abetting the distribution of methamphetamine. He did not take a direct appeal. In 1991, defendant filed his first § 2255 motion. That moti on was denied, and this court affirmed the denial in United States v. Glover , No. 91-5186, 1992 WL 95455 (10th Cir. Apr. 30, 1992). Defendant filed his sec ond § 2255 motion on October 25, 1994, and the district court denied the motion. This court reversed the denial, holding that defendant received ineffec tive assistance of counsel because his defense attorney failed to challenge hi s sentence on the government’s lack of proof regarding whether the methamphetamine was D-methamphetamine or L-methamphetamine. United Stated v. Glover , 97 F.3d 1345, 1349-50 (10th Cir. 1996). We remanded the case to the district c ourt, recognizing that, on remand, the district court might want to explore a possible procedural obstacle to defendant’s motion in his failure to raise the inef fective assistance of counsel claim in his first § 2255 motion. Upon remand, the district court ordered the parties to brief the procedural issue and found that defendant’s second § 2255 moti on was an abuse of the writ.-3-

Defendant appeals from that order. Finding no caus e for defendant’s failure to raise the issue in his first § 2255 motion, and fin ding that no fundamental miscarriage of justice would occur if defendant were not permitted to ra ise the issue in his second motion, the district court dism issed the § 2255 motion for abuse of the writ. In this context, “[w]e review t he district court’s factual findings for clear error and its legal conclusions de novo.” Green v. Reynolds , 57 F.3d 956, 957 (10th Cir. 1995). We affirm. To excuse his procedural error in neglecting to inc lude his ineffective assistance of counsel argument in his first § 2255 motion, defendant must show either cause for failing to raise the issue and pre judice resulting therefrom or “that a fundamental miscarriage of justice would re sult from a failure to entertain the claim.” United States v. Richards , 5 F.3d 1369, 1370 (10th Cir. 1993) (quotation omitted). Defendant concedes that he di d not raise the issue in his first motion, but he argues that the line of judicial aut hority finding defense counsel ineffective for failing to object to the government ’s lack of proof at sentencing of whether the methamphetamine is of the D or L isomerdid not come out until after he filed his first § 2255 motion. “The mere fact t hat others had not raised this issue first is not sufficient cause. ‘[T]he questi on is not whether subsequent legal developments have made counsel’s task easier, but w hether at the time of the default the claim was ‘available’ at all.’” Id. at 1371 (quoting Smith v. Murray ,-4-

477 U.S. 527, 537 (1986)). As the district court f ound, defendant cannot argue that the claim was unavailable to him at the time o f his sentencing; this court held that his defense counsel was ineffective for failing to raise the claim. See Glover , 97 F.3d at 1349-50. Neither can defendant show that a fundamental miscarriage of justice would occur if he is not permitted to bring the cla im in his successive motion. Defendant’s fundamental miscarriage of justice clai m boils down to a question of whether defendant is actually innocent of the offense. See Murray v. Carrier , 477 U.S. 478, 495-96 (1986) . Defendant is claiming only that, because of his counsel’s failure to raise the D versus L issue, he was illegally sentenced based on the stricter guidelines for D-methamphetamine wi thout the government meeting its burden of proof on the issue. A claim that a defendant in a noncapital case should have received a lesser sentence, howeve r, does not constitute a claim that he is actually innocent of the offense or that he did not commit the crime. See Richards , 5 F.3d at 1371. Defendant has shown neither cause for failing to ra ise the ineffective assistance of counsel in his first § 2255 motion, n or that a fundamental1 Defendant applied for a certificate of appealability in this case. Because

the § 2255 motion was filed before the effective date of the Antiterrorism and Effective Death Penalty Act, the provisions of thatact requiring a certificate of appealability do not apply. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). -5- miscarriage of justice will occur if he is not perm itted to present his claim at this juncture. Therefore, we AFFIRM the district court’ s dismissal of defendant’s § 2255 motion as an abuse of the writ. 1

Entered for the Court

Wesley E. Brown Senior District Judge