*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/18/96

FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, )

)

Respondent-Appellee, )

)

v. ) No. 95-6372

) (D.C. No. CIV-95-1168-R)

RAYMOND TORRES, ) (W. Dist. of Okla.)

)

Petitioner-Appellant. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the appellate record, this

panel has determined unanimously to honor the parties’ request for

a decision on the briefs without oral argument. See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Raymond Torres (Torres), appearing pro se and having been
1 At the time Torres was sentenced, the guidelines

distinguished between “methamphetamine,” which commonly refers to

d-methamphetamine, and “l-methamphetamine.” For purposes of

calculating the base offense level, 1 gram of methamphetamine was

equivalent to 1 kilogram of marijuana and 1 gram of

l-methamphetamine was equivalent to 40 grams of marijuana. 

U.S.S.G. § 2D1.1, Drug Equivalency Tables. 

- 2 -

granted leave to proceed in forma pauperis, appeals the district

court’s denial of his Motion to Vacate, Set Aside, or Correct

Illegal Sentence filed pursuant to 28 U.S.C. § 2255.

In March, 1994, Torres was convicted of multiple drug-related

offenses in connection with conspiracy to distribute

methamphetamine. On direct appeal, we affirmed Torres’ convictions

and sentences for conspiracy to possess with intent to distribute

methamphetamine (Count I) and distribution of methamphetamine

(Count IV). See United States v. Torres, 53 F.3d 1129 (10th Cir.),

cert. denied, ___ U.S. ___ (1995).

Thereafter, Torres filed a § 2255 motion alleging that: (1)

his sentence was based on the wrong guideline range; (2) his trial

counsel was ineffective in several ways relating to which isomer of

methamphetamine was involved in the case; (3) the district court

erred in sentencing him based on d- rather than l-methamphetamine;1

and (4) the district court erred by not “clearing away the jury’s

confusion, as to use of particular evidence” in response to a note

from the jury during deliberations. 

On October 2, 1995, the district court denied Torres’ § 2255

motion and found/concluded that: Torres’ first, third, and fourth
- 3 -

claims were procedurally defaulted for failure to raise them on

direct appeal; Torres failed to show cause for his failure to raise

claims one, three, and four on direct appeal; and the record was

clear that Torres was not and could not have been prejudiced by his

trial counsel’s allegedly unprofessional errors.

On appeal, Torres contends that the district court erred in

denying his § 2255 petition. He asserts that the district court

erred (1) in denying his ineffective assistance of counsel claim

when counsel admitted that he did not raise the issue of d- versus

l-methamphetamine at sentencing; and (2) when it held that his

first and third claims were procedurally barred when in fact he did

show a miscarriage of justice and that he had received ineffective

assistance of counsel.

In a § 2255 action, we review the district court’s legal

conclusions de novo, United States v. Cook, 49 F.3d 663, 665 (10th

Cir. 1995), although findings of fact underlying mixed questions of

law and fact are accorded the presumption of correctness. Manlove

v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992).

Torres’ claims all relate to his trial counsel’s failure to

object to the presentence report’s calculation of his base offense

level on the basis of d-methamphetamine rather than lmethamphetamine. Therefore, his claims may be consolidated with

and addressed through his ineffective assistance of counsel claim.

In order to prevail on a claim of ineffective assistance of
- 4 -

counsel, a defendant must show that: (1) his counsel’s performance

was constitutionally deficient, and (2) this deficient performance

was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); Cook, 49 F.3d at 665. Counsel’s performance is deficient

if the representation “falls below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. Prejudice is

established when a defendant demonstrates “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “However, a

court may not set aside a conviction or a sentence solely because

the outcome would have been different absent counsel’s deficient

performance.” United States v. Kissick, 69 F.3d 1048, 1055 (10th

Cir. 1995) (citing Lockhart v. Fretwell, 506 U.S. 364, 369-70

(1993)). “Instead, in order to establish the required prejudice,

a defendant must demonstrate that counsel’s deficient performance

rendered the proceeding ‘fundamentally unfair or unreliable.’”

Kissick, 69 F.3d at 1055 (citing Lockhart, 506 U.S. at 369).

Assuming that Torres’ counsel’s performance in failing to

object to sentencing based on d- rather than l-methamphetamine was

constitutionally deficient, his claims nevertheless must fail

because he did not and cannot show actual prejudice. At

sentencing, it was established that Torres was accountable for

1,275.75 grams of methamphetamine. There was no discussion nor any

evidence introduced regarding whether the methamphetamine involved
2 It is unclear from the record if this evidence was

presented at trial. However, new evidence may be presented in a

§ 2255 proceeding. 

was d- or l-methamphetamine. See ROA, Vol. VI. However, our

record reveals a July 13, 1992, Report of Drug Property Collected,

Purchased or Seized which analyzes methamphetamine seized from

coconspirators on July 9, 1992, as 35% d-methamphetamine.2 

Under the guidelines, “[i]f a mixture or substance contains

more than one controlled substance, the weight of the entire

mixture or substance is assigned to the controlled substance that

results in the greater offense level.” U.S.S.G. § 2D1.1.(c) note*.

See United States v. Decker, 55 F.3d 1509, 1513 (10th Cir. 1995).

Therefore, even assuming that counsel had an obligation to raise

the issue, the evidence demonstrates that Torres sentence would

have been the same and his sentence is neither “fundamentally

unfair” nor “unreliable.”

We AFFIRM substantially for the reasons set forth in the

district court’s Order of October 2, 1995. The mandate shall issue

forthwith.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge