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, appeals 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

distribute methamphetamine in violation of 21 U.S.C. § 846. After

conducting an extensive evidentiary hearing to resolve disputed sentencing

issues, the district court sentenced Apfel to 175 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 was

1

ineffective for failing to raise the issue on direct appeal.

 As of November 1, 1995, the distinction between

2

methamphetamine types has been eliminated and l-methamphetamine is

treated the same as d-methamphetamine under the sentencing

guidelines. Guidelines amendment number 518 explains that the

change was made because "l-methamphetamine is rarely seen and is

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 the

crime 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 amendment

increased the penalty for crimes involving l-methamphetamine. See

United States v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996); see

also U.S.S.G. § 1B1.11(b)(1).

2

On June 22, 1995, Apfel filed the instant motion under 28 U.S.C. §

2255 to set aside, vacate, or correct his sentence. He contends that his

trial counsel was ineffective for failing to object to the implicit

assumption at sentencing that Apfel's offense involved d-methamphetamine

(Dextro-methamphetamine) rather than l-methamphetamine (Levomethamphetamine), a substance that carried far less severe exposure under

the sentencing guidelines as of the time of Apfel's crime. The difference 1

between d- and l-methamphetamine was expressed in the Drug Equivalency

Tables by a factor of 250 to 1 to reflect that l-methamphetamine is

"grossly different" because it "produces little or no physiological effect

when ingested." 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 supplement

his motion with additional materials to support his allegation that the

type of methamphetamine involved in his case was l-methamphetamine. Apfel

responded by filing his sworn affidavit asserting his opinion that the

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 at

length the characteristics and [e]ffects of both LType and D-Type methamphetamine, including studying

research from the Journal of Forensic Sciences,

Federal Criminal Law Publication, and other law

publications.

. . .

4. From my experience in being around, using,

and researching methamphetamine, it is my opinion

that the drug involved in my case was in fact the

L-type or very low grade methamphetamine.

5. The methamphetamine that I used had more of

a caffeine [e]ffect on me and exhibited other

characteristics of being the L-Type, as [o]pposed

to the long term [e]ffects, such as hallucinations,

paranoia, etc., that D-Type would cause.

(Appellant's Add. at 8-9 (Affidavit of Defendant)).

3

were l-type 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 that

if his attorney at sentencing had raised the issue of the type of

methamphetamine . . . it would have made any difference in the sentence

imposed." (Appellant's Add. at 20-22 (Order dated Jan. 12, 1996)). Apfel

appeals.

II.

 Relief under 28 U.S.C. § 2255 is reserved for transgressions of

constitutional rights and for a narrow range of injuries that could not

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.2d 817, 821 (8th Cir. 1987). A movant may not raise constitutional

issues for the first time on collateral review without establishing both
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cause for the procedural default and actual prejudice resulting from the

error. 
5

United States v. Frady, 456 U.S. 152, 167-68 (1982); Auman v. United

States, 67 F.3d 157, 161 (8th Cir. 1995). Absent unusual circumstances,

a showing of ineffective assistance of counsel satisfies both cause and

prejudice. To establish ineffective assistance of counsel within the

context of section 2255, however, a movant faces a heavy burden:

A claim of ineffective assistance of counsel [under §

2255] must be scrutinized under the two-part test of

Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, in order to prevail on a claim of ineffective

assistance of counsel, a convicted defendant must prove

both that his counsel's representation was deficient and

that the deficient performance prejudiced the defendant's

case. The first part of the test is met when the

defendant shows that counsel "failed to exercise the

customary skills and diligence that a reasonably

competent attorney would [have] exhibit[ed] under similar

circumstances." The second part is met when the

defendant shows that "there is a reasonable probability

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) (citations

omitted). Because the failure to establish prejudice can be dispositive

of a case, 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.3d 226, 230 (8th Cir. 1996), petition for cert. filed

(U.S. Sept. 3, 1996) (No. 96-5795); see Strickland v. Washington, 466 U.S.

668, 697 (1984) ("If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice . . . that course should be

followed.") 

Apfel has not established a reasonable probability that the result

of his sentencing would have been different had his counsel objected to the

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 deficient, we

note that counsel should have been alerted by the guidelines to the

potentially significant impact that the different types of

methamphetamine can have on sentencing. Moreover, well before

Apfel's sentencing, this court held that the court must make a

factual determination as to the type of methamphetamine involved

prior to imposing a sentence. United States v. Koonce, 884 F.2d

349, 352 (8th Cir. 1989). 

6

methamphetamine involved in his offense. Put another way, he has not

4

shown a reasonable probability that the government would not have been able

to prove by a preponderance of evidence that the offense involved dmethamphetamine. 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 and

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 defendant

opportunity to tender "specific verified basis or evidence, beyond

[defendant's] mere naked assertion or belief, that the drug was in fact lmethamphetamine"). In contrast, the extensive record from Apfel's guilty

plea and two-day sentencing hearing eliminate doubt that the government

would have been able to demonstrate that the drugs involved in Apfel's

offense were d-methamphetamine. The evidence showed that Apfel was a drug

dealer who obtained drugs from Charles Murphy, one of the largest

methamphetamine dealers in Waterloo, Iowa. The government witnesses

included several long-time methamphetamine users who testified that they

had purchased drugs from Apfel. Murphy's confidante and former bookkeeper,

who was intimately familiar with Murphy's drug supply operation, also

testified about a large drug debt Apfel owed her former employer. The only

arguable support in the 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

"garbage" and impossible to resell. (Sentencing Tr. at 134-35.) This

testimony, however, does more to demonstrate that Apfel's customary drug

supply was normal-grade d-methamphetamine than to support Apfel's contrary

assertion.

Apfel has not met his heavy burden of showing a reasonable

probability that his sentence would have been different if his counsel had

required the government to prove that the offense involved dmethamphetamine. Therefore, he cannot demonstrate ineffective assistance

of counsel for not raising the issue at sentencing. We affirm the district

court's denial of relief under 28 U.S.C. § 2255. 

A true copy.

Attest:

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