* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. 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 parti es’ request for a decision on the briefs without oral argument. Se e Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefo re ordered submitted without oral argument. Raymond Torres (Torres), appearing prose and having been1 At the time Torres was sentenced, the guidelines

distinguished between “methamphetamine,” which comm only refers to d-methamphetamine, and “l-methamphetamine.” For pu rposes 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 mar ijuana. U.S.S.G. § 2D1.1, Drug Equivalency Tables. - 2 - granted leave to proceed informapauperis , 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 dr ug-related offenses in connection with conspiracy to distribut e methamphetamine. On direct appeal, we affirmed Tor res’ 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 t hat: (1) his sentence was based on the wrong guideline range ; (2) his trial counsel was ineffective in several ways relating towhich isomer of methamphetamine was involved in the case; (3) the d istrict court erred in sentencing him based on d- rather than l-m ethamphetamine; 1 and (4) the district court erred by not “clearing a way the jury’s confusion, as to use of particular evidence” in res ponse to a note from the jury during deliberations. On October 2, 1995, the district court denied Torre s’ § 2255 motion and found/concluded that: Torres’ first, thi rd, and fourth- 3 -

claims were procedurally defaulted for failure to r aise them on direct appeal; Torres failed to show cause for his failure to raise claims one, three, and four on direct appeal; and t he record was clear that Torres was not and could not have been p rejudiced 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 d istrict court erred (1) in denying his ineffective assistance of counsel claim when counsel admitted that he did not raise the iss ue of d- versus l-methamphetamine at sentencing; and (2) when it he ld that his first and third claims were procedurally barred whe n in fact he did show a miscarriage of justice and that he had recei ved 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 mi xed questions of law and fact are accorded the presumption of correc tness. Manlove v. Tansy , 981 F.2d 473, 476 (10th Cir. 1992). Torres’ claims all relate to his trial counsel’s fa ilure to object to the presentence report’s calculation of h is base offense level on the basis of d-methamphetamine rather thanlmethamphetamine. Therefore, his claims may be cons olidated with and addressed through his ineffective assistance ofcounsel claim. In order to prevail on a claim of ineffective assis tance of- 4 -

counsel, a defendant must show that: (1) his counse l’s performance was constitutionally deficient, and (2) this defici ent performance was prejudicial. Strickland v. Washington , 466 U.S. 668, 687 (1984); Cook , 49 F.3d at 665. Counsel’s performance is deficie nt if the representation “falls below an objective sta ndard of reasonableness.” Strickland , 466 U.S. at 688. Prejudice is established when a defendant demonstrates “a reason able 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 counse l’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 requi red prejudice, a defendant must demonstrate that counsel’s deficie nt performance rendered the proceeding ‘fundamentally unfair or un reliable.’” Kissick , 69 F.3d at 1055 (citing Lockhart , 506 U.S. at 369). Assuming that Torres’ counsel’s performance in fail ing to object to sentencing based on d- rather than l-meth amphetamine 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 acco untable for 1,275.75 grams of methamphetamine. There was no di scussion nor any evidence introduced regarding whether the methamphe tamine involved2 It is unclear from the record if this evidence was

presented at trial. However, new evidence may be p resented in a § 2255 proceeding. was d- or l-methamphetamine. See ROA, Vol. VI. However, our record reveals a July 13, 1992, Report of Drug Prop erty Collected, Purchased or Seized which analyzes methamphetamine seized from coconspirators on July 9, 1992, as 35% d-methamphet amine. 2 Under the guidelines, “[i]f a mixture or substance contains more than one controlled substance, the weight of t he 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 obliga tion to raise the issue, the evidence demonstrates that Torres se ntence would have been the same and his sentence is neither “fun damentally unfair” nor “unreliable.”
We AFFIRM

substantially for the reasons set forth in the district court’s Order of October 2, 1995. The man date shall issue forthwith. Entered for the Court:

James E. Barrett, Senior United States Circuit Judge