1

The Honorable Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa.

___________

No. 96-1248

___________

Leon R. Fuller, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * Northern District of Iowa.

United States of America, * [UNPUBLISHED]

 *

Appellee. *

___________

 Submitted: August 7, 1996

 Filed: August 15, 1996 ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Leon R. Fuller appeals the district court's1 order denying his

28 U.S.C. § 2255 motion. We affirm.

Following Fuller's conviction on drug-related charges stemming

from his methamphetamine distribution activities, he was sentenced

to 135 months' imprisonment and five years' supervised release. On

direct appeal, we affirmed. United States v. Fuller, 942 F.2d 454,

457 (8th Cir.), cert. denied, 502 U.S. 914 (1991), and 502 U.S.

1039 (1992). Fuller then filed this motion, asserting that his due

process right to be sentenced based on accurate and reliable

information was violated because he was sentenced under the

Guidelines for D-methamphetamine (instead of L-methamphetamine)

without any evidence of the type of methamphetamine, and that his

counsel was ineffective for not challenging the D-methamphetamine

presumption.
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In response to a district court order, the government

presented evidence that the methamphetamine admitted at trial had

been tested for type, and contained D-methamphetamine. Noting that

this appeared to resolve the motion to Fuller's detriment, the

district court gave him an opportunity to rebut the government's

evidence. Fuller responded that the government was attempting to

introduce inadmissible evidence into the record and urged the court

not to consider the government's evidence without first holding a

hearing at which he could challenge the foundation and

admissibility of the evidence. Without conducting a hearing, the

court denied Fuller section 2255 relief.

We conclude that Fuller's challenge to the district court's

reliance on the evidence submitted by the government must fail, as

the court was expressly permitted to direct the parties to expand

the record by submitting additional materials--including documents

and exhibits--relevant to the merits of Fuller's motion. See Rules

Governing Section 2255 Proceedings 7(a),(b). Further, Fuller had

an opportunity to respond to the supplemental lab reports, the

authentication of which was not required. See id. 7(c), (d).

In any event, we conclude that the district court properly

denied Fuller section 2255 relief, because the motion, files, and

records conclusively show he is not entitled to relief. See Arnold

v. United States, 63 F.3d 708, 709 (8th Cir. 1995). Even if

counsel's failure to object to the classification of the

methamphetamine as D-methamphetamine was unreasonable, Fuller did

not show he was prejudiced as a result of this omission, as he

neither alleged nor provided evidence that the methamphetamine was

in fact L-methamphetamine, despite having more than three months to

do so before the court ruled on his motion. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); United States v. Acklen, 47

F.3d 739, 744 (5th Cir. 1995) (movant must tender specific,

verified basis or evidence, beyond mere naked assertion or belief,

that drug was in fact L-methamphetamine); cf. United States v.
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Ward, 55 F.3d 412, 414 (8th Cir. 1995) (noting contention that

substance was L-methamphetamine, not D-methamphetamine, was based

on "evidence readily available" to defendant).

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.