No. 96-1333

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Monte Allen Apfel, * * Appellant. *

Submitted: September 10, 1996 Filed: October 7, 1996
Before FAGG, HEANEY, and MURPHY, Circuit Judges.
HEANEY, Circuit Judge.

Appellant, Monte Allen Apfel, appeal s the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We affirm.

I.
On April 20, 1990, pursuant to a plea agreement, Apfel pleaded guilty to a single count of conspiracy to distribute and possess with intent to distribu te methamphetamine in violation of 21 U.S.C. § 846. Afte r conducting an extensive evidentiary hearing to r esolve disputed sentencing issues, the district court sentenced Apfel to 17 5 months imprisonment. We affirmed Apfel's sentence on direct appeal. United States v. Apfel , 945 F.2d 236 (8th Cir. 1991).

### Apfel also contends that his appellate counsel wa s 1 

### ineffective for failing to raise the issue on direct appeal.

As of November 1, 1995, the distinction betwee n 2 

### methamphetamine types has beeneliminated and l-methamphetamine is treated the same as d-methamphetamine under the sentencin g gu idelines. Guidelines amendment number 518 explains that th e cha nge was made because "l-methamphetamine is rarely seen and i s not made intentionally, but rather results from a botched attempt to produce d-methamphetamine." U.S.S.G. App. C. at 423. The rule applicable to Apfel, however, is the one in effect at the time thecrime was committed; application of the amended guideline to preamendment conduct involving l- methamphetamine would violate the Ex Post Facto Clause of the Constitution because the amendmen t increased the penalty for crim es involving l-methamphetamine. See United S tates v. McMullen , 86 F.3d 135, 138 (8th Cir. 1996); se e also U.S.S.G. § 1B1.11(b)(1).
2 On Jun e 22, 1995, Apfel filed the instant motion under 28 U.S.C. § 2255 to set aside, vacate, or correct his senten ce. He contends that his trial counsel was ineffective for failing to object to the implici t assumption at sentencing that Apfel's offense involved d-methamphetamine (De xtro-methamphetamine) rather than l-methamphetamine (Levo

methamphetamine), a s ubstance that carried far less severe exposure under the sentencing guidelines as of the time of Apfel's crime. Th e difference 1 betwee n d- and l-methamphetamine was expressed in the Drug Equivalenc y Tables by a factor of 250 to 1 to reflect that l-methamphetamine i s "grossly different" because it "produces little or no physiological effect when inge sted." See United States v. Bogusz , 43 F.3d 82, 89 (3d Cir

. 1994), cert. denied , 115 S. Ct. 1812 (1995). 2

On November 22, 1995, the district court directed Apfel to supp lement his motion with additional materials to support his allegation that th e type of methamphetamine involved in his case was l-methamphetamine. Apfel responded by filing his sworn affidavit asserting his opinion that th e drugs involved in his case

### The entire factual basis for Apfel's assertion is contained 3 

### in the following three paragraphs of his affidavit:

2. I have studied, read, and researched a t length the characteristics and[e]ffects of both LType and D-Type methamphetamin e, including studying rese arch from the Journal of Forensic Sciences , Federal Criminal Law Publication , and other la w publications.

. . . 4. Fr om my experience in being around, using , and researching methamphetamine, it is my opinio n that the drug involved in my case was in fact th e L-type or very low grade methamphetamine. 5. The methamphetamine that I used had more of a c affeine [e]ffect on me and exhibited othe r characteristics of being the L-Type, as [o]ppose d to the long term [e]ffects, su ch as hallucinations, paranoia, etc., that D-Type would cause. (Appellant's Add. at 8-9 (Affidavit of Defendant)).
3 were l-t ype methamphetamine. The district court then denied Apfel' s 3 motion, finding that his affidavit contained only "bare, unsupported and self-serving statements" and concluding that Apfel had "failed to show tha t if his attorney at sentencing had raised the issue of the type o f methamphe tamine . . . it would have made any difference in the sentenc e imposed." (Appellant's Add. at 20-22 (Order dat ed Jan. 12, 1996)). Apfel appeals.

II.

Relie f under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could no t have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. See Poor Thunder v. United States , 810 F.2 d 817, 821 (8th Cir. 1987). A movant may not raise constitutiona l issues for the first time on collateral review without establishing both

### 4

cause for the procedural default and actual prejudice resulting from the
error.

### 5

Unit ed States v. Frady , 456 U.S. 152, 167-68 (1982); Auman v. Unite d States , 67 F.3d 157, 161 (8th Cir. 1995). Absent unusual circumstances,
a s howing of ineffective assistance of counsel satisfies both cause an d prejud ice. To establish ineffective assistance of counsel within th e context of section 2255, however, a movant faces a heavy burden:

A cla im of ineffective assistance of counsel [under § 2255] must be scrutinized under the two-part test o f Strick land v. Washington , 466 U.S. 668 (1984). Unde r Strickland , in order to prevail on a cl aim of ineffective assistance of counsel, a convicted defendant must prov e both that hi s counsel's representation was deficient and that the deficient performance prejudic ed the defendant's case. The first part of the test is met when th e defen dant shows that counsel "failed to exercise th e customaryskills and diligence that a reasonabl y competent attorney would [have] exhibit [ed] under similar circ umstances." The second part is met when th e defendant shows that "there is a reasonable probabilit y that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Cheek v. United States , 858 F.2d 1330, 1336 (8th Cir. 1988) (citation s omitted). Because the failure to establish prejudice can be dispositive of a cas e, Sanders v. Trickey , 875 F.2d 205, 211 n.8 (8th Cir.), cert
. denied , 493 U.S. 898 (1989), we need not address the reasonableness of the attorney's behavior if the movant cannot prove prejudice. Montanye v
. United States , 77 F.3 d 226, 230 (8th Cir. 1996), petition for cert. filed (U.S. Sept. 3, 1996) (No. 96-5795); see Strickla nd v. Washington , 466 U.S. 668, 697 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lackof sufficient prejudice . . . that course should be followed.")

Apfel has not established a reasonable probability that the resul t of his sentencing would have been different had his counsel objected to th e government's failure to prove the type of

### Although our resolution of this case does not require us to 4 

### decide whether the performance of Apfel's counsel was defici ent, we note that counsel should have been alerted by the guidelines to the potentiallysignificant impact that the different types o f me thamphetamine can have on sentencing. Moreover, well befor e Apfel's sentencing, this court held that the court must make a factua l determination as to the type of methamphetamine involve d prior to imposing a sentence. United States v. Koonce , 884 F.2 d 349, 352 (8th Cir. 1989).
6 metha mphetamine involved in his offense. Put another way, he has no t 4 shown a reasonable probability that the government would not have been abl e to p rove by a preponderance of evidence that the offense involved d

methamphetamine. The sole basis for Apfel's claim that his case involved l-methamphetamine is his own sworn statement that the drugs he used had a caffeine-like effect on him with no long-term effects. We agree with the district court that Apfel's statements are unsupported and self-serving an d do not establish a basis for relief. Accord United States v. Acklen , 47 F.3d 739, 744 (5th Cir. 1995) (remanding on similar facts to give defendan t opportunityto tender "specific verified basis or evidence, beyon d [defendant's] mere naked assertion or belief, th at the drug was in fact lmethamphetamine"). I n contrast, the extensive record from Apfel's guilty plea a nd two-day sentencing hearing eliminate doubt that the governmen t would have been able to demonstrate that the drugs involved in Apfel' s offense were d-methamphetamine. The evidence sh owed that Apfel was a drug deale r who obtained drugs from Charles Murphy, one of the larges t
me thamphetamine dealers in Waterloo, Iowa. The government witnesse s included several long-time methamphetamine users who testified that they had purchased drugs from Apfel. Murphy's confidante and former bookkeeper , who wa s intimately familiar with Murphy's drug supply operation, als o testified about a large drug debt Apfel owed her former employer. The onl y arguable support in t he record for the claim that the drugs involved were low grade l-methamphetamine is the testimony of one of Apfel's customers that on one occasion he purchased methamphetamine from Apfel that was

### 7

"garb age" and impossible to resell. (Sentencing Tr. at 134-35.) Thi s testimony, however, does more to demonstrate that Apfel's customary drug supply was normal-grade d-methamphetamine than t o support Apfel's contrary assertion.

Apfe l has not met his heavy burden of showing a reasonabl e probability that his sentence would have been di fferent if his counsel had requir ed the government to prove that the offense involved d

methamphetamine. The refore, he cannot demonstrate ineffective assistance of counsel for not raising the issue at sentencing. We affirm the distric t court's denial of relief under 28 U.S.C. § 2255.

A true copy.

Attest:

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