* This order and judgment is not binding precedent, e xcept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 4/19/96 FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, ) ) Respondent-Appellee, ) ) v. ) No. 95-6427 ) (D.C. No. CIV-95-1184-R) BARBARA AFLLEJE-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 ordered1 At the time Aflleje-Torres was sentenced, the

guidelines distinguished between “methamphetamine,” which commonly refers to d-methamphetamine, and “l-methamphetamine.” For purposes of calculating the base offense level, 1 gram of methamphetamine was equivalent to 1 kilogram of mar ijuana and 1 gram of l-methamphetamine was equivalent to 40 gram s of marijuana. U.S.S.G. § 2D1.1, Drug Equivalency Tabl es. - 2 - submitted without oral argument. Barbara Aflleje-Torres (Aflleje-Torres), appearing prose and having been granted leave to proceed informapauperis , appeals the district court’s denial of her Motion to Vacate, Se t Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255
. In 1994, Aflleje-Torres was convicted of multiple d rug-related offenses in connection with a conspiracy to distrib ute methamphetamine. On direct appeal, we affirmed Afl leje-Torres’ convictions and sentences for conspiracy to possess with intent to distribute methamphetamine (Count I), distribution of methamphetamine (Counts III and IV), and use of a c ommunication facility to facilitate the distribution of methamph etamine (Count VI). See United States v. Torres , 53 F.3d 1129 (10th Cir.), cert
. denied , ___ U.S. ___ (1995). Thereafter, Aflleje-Torres filed a § 2255 petition alleging that: (1) the district court erred in basing her se ntence on the quantity of drugs involved in the entire conspiracy ; (2) the district court erred in sentencing her based on d- rather than lmethamphetamine; 1and (3) her trial counsel was constitutionally ineffective in a variety of ways.- 3 -

On November 8, 1995, the district court denied her § 2255 motion finding/concluding that: her challenge to th e quantity of drugs attributable to her was raised and rejected o n direct appeal and, therefore, cannot be raised again; she procedu rally defaulted on the issue of whether the district court erred insentencing her based on d- rather than l-methamphetamine and she d id not show cause for the default; and she failed to show any p rejudice as a result of any of her ineffective assistance of coun sel claims. On November 16, 1995, the district court amended its N ovember 8, 1995 Order in light of evidence presented by Aflleje-Tor res that the methamphetamine involved in the conspiracy was comp osed of 35% dmethamphetamine and to clarify that an evidentiary hearing was not required on her ineffective assistance of counsel c laims because she failed to show that she was prejudiced by her t rial counsel’s alleged deficiencies. On appeal, Aflleje-Torres contends that the distric t court erred in denying her § 2255 petition and in failingto conduct an evidentiary hearing. She asserts that: (1) the dis trict court erred in not making specific findings as to the amo unt of methamphetamine attributable to her rather than the entire conspiracy; (2) the district court erred in sentenc ing her based on d- rather than l-methamphetamine; and (3) her trial counsel was ineffective for failing to challenge the presentenc e report’s calculation of her sentence based on d- rather thanl-- 4 -

methamphetamine, advise her of the comparative sent ences she could expect by proceeding to trial rather than acceptinga plea, and investigate the case. In a § 2255 motion, 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). 1. On direct appeal, Aflleje-Torres challenged the qua ntity of methamphetamine attributed to her. On her direct a ppeal, we affirmed the district court’s finding that 1,332.45 grams of methamphetamine were attributable to Aflleje-Torres . Absent an intervening change in the law of the circuit, not p resent here, issues disposed of on direct appeal will not be con sidered on a collateral attack pursuant to a § 2255 motion. Uni ted States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989) (citations omi tted). 2. & 3. Aflleje-Torres did not raise her challenge to the d istrict court’s sentence on the basis of d- rather than l-m ethamphetamine at sentencing or on direct appeal. Therefore, she may pursue this issue in a § 2255 proceeding only if she can show c ause and prejudice resulting from that failure. See United States v. Kissick , 69 F.3d 1048, 1054 (10th Cir. 1995). Aflleje-Tor res may- 5 -

establish cause for failing to raise a claim by dem onstrating that she was denied effective assistance of counsel. Id . (citations omitted). In order to prevail on a claim of ineffective assis tance of counsel, a defendant must show that (1) his counsel ’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.” Kissick , 69 F.3d at 1055 (citing Lockhart v. Fretwell , 506 U.S. 364, 369-70 (1993)). “Instead, in orderto establish the required prejudice, a defendant must demonstrate that counsel’s deficient performance rendered the procee ding ‘fundamentally unfair or unreliable.’” Kissick , 69 F.3d at 1055 (citing Lockhart , 506 U.S. 369). Assuming that Aflleje-Torres’ counsel’s performance was constitutionally deficient, her claim must neverthe less fail because she has failed to show prejudice. At sente ncing, it was2 It is unclear from the record if this evidence was

presented at trial. However, new evidence may be p resented in a § 2255 proceeding. - 6 - established that Aflleje-Torres was accountable for1,332.45 grams of methamphetamine. There was no discussion or anyevidence introduced regarding whether the methamphetamine in volved was d- or l-methamphetamine. See ROA, Vol. VI. However, attached to Aflleje-Torres’ Objection to Government’s Response filed November 2, 1995, is a July 13, 1992, Report of Drug Propert y Collected, Purchased or Seized. 2The report analyzes methamphetamine that was seized from coconspirators on July 9, 1992, as 35% dmethamphetamine. 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 was obligatedto raise the issue, the evidence presented demonstrates that Afl leje-Torres’ sentence would have been the same and, thus, is nei ther “fundamentally unfair” nor “unreliable.” Finally, Aflleje-Torres’ other claims for ineffecti ve assistance of counsel fail because she has not demo nstrated any prejudice. Although Aflleje-Torres’ urges that she would have pled guilty if she had been offered a plea, there is no evidence that- 7 -

the government was willing to enter into plea negot iations with her or that a plea would have been accepted by the dist rict court. She has also failed to demonstrate what additional inve stigation was necessary or how she was harmed by counsel’s allege d failures to investigate.
We AFFIRM

substantially for the reasons set forth in the district court’s Order of November 8, 1995, and the district court’s amendment thereto of November 16, 1995. Th e mandate shall issue forthwith. Entered for the Court:

James E. Barrett, Senior United States Circuit Judge