* Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-50139

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID KINDER,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(W-94-CA-332(W-90-CR-28-2))

_________________________________________________________________

(October 12, 1995)

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner David Kinder (Kinder) appeals the district

court’s denial of his petition for habeas corpus relief pursuant to

28 U.S.C. § 2255. Kinder contends that his sentence is excessive

since the offense of conspiracy cannot trigger a career offender

enhancement under the Sentencing Guidelines (Guidelines) and that

his trial counsel was constitutionally ineffective. Because the
 

1 Kinder has a history of criminal behavior including six prior

convictions for various offenses.

2

district court did not err when it denied Kinder habeas relief,

this court affirms.

I. FACTUAL BACKGROUND 

The facts relevant to Kinder’s conviction are recounted

fully in published opinions from his direct appeal, United States

v. Kinder, 946 F.2d 362, 365 (5th Cir. 1991), cert. denied, 503

U.S. 987, 112 S. Ct. 1677 (1992) (Kinder I) and United States v.

Kinder, 980 F.2d 961, 962 (5th Cir. 1992), cert. denied, ___ U.S.

___, 113 S. Ct. 2376 (1993) (Kinder II). Briefly, Kinder and his

brother were arrested when they negotiated and purchased 269 ounces

of methamphetamine for $5,800 from an undercover agent in Waco,

Texas. 

Kinder pleaded guilty to conspiracy to possess more than

100 grams of methamphetamine with intent to distribute, punishable

under 21 U.S.C. §§ 846 and 841(a)(1). Sentenced as a career

offender under the Guidelines,1 Kinder was ordered by the district

court to be imprisoned for 400 months, serve a five-year term of

supervised release, and to pay a mandatory assessment of $50. 

II. DISCUSSION 

Kinder seeks habeas corpus relief, contending that his

sentence is excessive since the offense of conspiracy cannot

trigger a career offender enhancement under the Guidelines. To

support this claim, Kinder relies on United States v. Bellazerius,

24 F.3d 698, 700-02 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.
 

2 Although Kinder currently points to five instances of allegedly

inadequate representation, only two were raised in his petition for habeas relief

with the district court. This court need not address the three claims not

considered by the district court. After all, “issues raised for the first time on

appeal are not reviewable by this court unless they involve purely legal questions

and failure to consider them would result in manifest injustice.” Varnado v.

3

Ct. 375 (1994), which held that the Sentencing Commission exceeded

its authority under 28 U.S.C. § 994(h) when it applied career

offender enhancements to defendants convicted only of conspiracy.

As a result, Kinder concludes that he is entitled to relief because

his conspiracy sentence cannot be enhanced under the career

offender provisions of the Guidelines.

However, habeas corpus relief is extraordinary and “is

reserved for transgressions of constitutional rights and for a

narrow range of injuries that could not have been raised on direct

appeal and would, if condoned, result in a complete miscarriage of

justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.

1992). Viewed in this light, Bellazarius does not support Kinder’s

claim for habeas relief since technical misapplications of the

Guidelines are not cognizable under 28 U.S.C. § 2255. See United

States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994); Vaughn, 955

F.2d at 368; United States v. Williams, No. 94-50329 (5th Cir. Mar.

27, 1995) (unpublished). In different terms, a technical

misapplication of the Guidelines is not a constitutional

transgression for which the writ of habeas corpus affords any

relief. 

Kinder also asserts that his trial counsel was

constitutionally ineffective both during plea bargaining and at

sentencing.2 Specifically, Kinder suggests that he was deprived of
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citations omitted). By contrast,

Kinder’s other claims of ineffective assistance of counsel involve primarily factual

questions that risk no manifest injustice if left unanswered by this court.

 

3 At least two chemical compositions, or isomers, of the illicit drug

exist: D and L-methamphetamine. Of the two compositions, D-methamphetamine carries

a stiffer penalty under the Guidelines. See § 2D1.1 (Drug Equivalency Table).

Kinder argues that the government did not prove which composition he purchased, yet

the district court’s sentence allegedly assumes that it was D-methamphetamine. 

4

effective counsel when his lawyer failed to object both to the

district court’s interpretation of the Guideline’s career offender

provision and to the type of methamphetamine on which his sentence

was allegedly based.3 Kinder’s assertions are meritless. 

To establish that he suffered from constitutionally

ineffective counsel, Kinder must prove the two central elements of

his claim: (1) that his counsel made errors so grievous that they

deprived him of his Sixth Amendment guarantees; and (2) that this

deficient performance actually prejudiced his defense and rendered

the trial’s result unreliable. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1984). This court has interpreted

the second prong of Strickland to require that, in non-capital

sentences, the defendant demonstrate “a reasonable probability that

but for trial counsel’s errors the defendant’s non-capital sentence

would have been significantly less harsh.” Spriggs v. Collins, 993

F.2d 85, 88 (5th Cir. 1993) (emphasis added). Further, Kinder must

overcome the deferential judicial scrutiny paid to counsel’s

performance; “counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 446

U.S. at 690, 104 S. Ct. at 2066.
5

Kinder has not established that he suffered

constitutionally inadequate representation when his counsel failed

to object to the application of the Guideline’s career offender

enhancement to his conspiracy conviction. After all, Bellazerius

was not decided until the completion of Kinder’s sentencing and

direct appellate review. Furthermore, the principle in Bellazerius

is “technically sophisticated and nonobvious,” and the court’s

opinion recognized a circuit split on the application of career

offender enhancements to conspiracy convictions. Williams, at 10

n.9. See also, Bellazerius, 24 F.3d at 701. The mere failure of

Kinder’s counsel to anticipate a change in the law does not deprive

Kinder of his constitutional right to effective assistance of

counsel. See Morse v. State of Texas, 691 F.2d 770, 772 n.2 (5th

Cir. 1982). 

But Kinder also contends that he received ineffective

assistance of counsel when his lawyer did not object to the type of

methamphetamine on which the district court allegedly based his

sentence. However, because Kinder was sentenced under the career

offender provision of the Guidelines, rather than other provisions

based on drug quantity, he was not prejudiced by his counsel’s

failure to object to the specific isomer of methamphetamine

involved in the offense; the type of methamphetamine was not

relevant to Kinder’s sentence.

III. CONCLUSION

For the foregoing reasons, the district court’s denial of

§ 2255 habeas relief is AFFIRMED.