*This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of Tenth Cir. 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 parties’ request for

a decision on the briefs without oral argument. See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
1 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 marijuana and 1

gram of l-methamphetamine was equivalent to 40 grams of

marijuana. U.S.S.G. § 2D1.1, Drug Equivalency Tables. 

- 2 -

submitted without oral argument.

Barbara Aflleje-Torres (Aflleje-Torres), appearing pro se and

having been granted leave to proceed in forma pauperis, appeals the

district court’s denial of her Motion to Vacate, Set Aside, or

Correct Sentence filed pursuant to 28 U.S.C. § 2255.

In 1994, Aflleje-Torres was convicted of multiple drug-related

offenses in connection with a conspiracy to distribute

methamphetamine. On direct appeal, we affirmed Aflleje-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 communication

facility to facilitate the distribution of methamphetamine (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 sentence on the

quantity of drugs involved in the entire conspiracy; (2) the

district court erred in sentencing her based on d- rather than lmethamphetamine;1 and (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 the quantity of

drugs attributable to her was raised and rejected on direct appeal

and, therefore, cannot be raised again; she procedurally defaulted

on the issue of whether the district court erred in sentencing her

based on d- rather than l-methamphetamine and she did not show

cause for the default; and she failed to show any prejudice as a

result of any of her ineffective assistance of counsel claims. On

November 16, 1995, the district court amended its November 8, 1995

Order in light of evidence presented by Aflleje-Torres that the

methamphetamine involved in the conspiracy was composed of 35% dmethamphetamine and to clarify that an evidentiary hearing was not

required on her ineffective assistance of counsel claims because

she failed to show that she was prejudiced by her trial counsel’s

alleged deficiencies.

On appeal, Aflleje-Torres contends that the district court

erred in denying her § 2255 petition and in failing to conduct an

evidentiary hearing. She asserts that: (1) the district court

erred in not making specific findings as to the amount of

methamphetamine attributable to her rather than the entire

conspiracy; (2) the district court erred in sentencing her based on

d- rather than l-methamphetamine; and (3) her trial counsel was

ineffective for failing to challenge the presentence report’s

calculation of her sentence based on d- rather than l-
- 4 -

methamphetamine, advise her of the comparative sentences she could

expect by proceeding to trial rather than accepting a 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 mixed questions of

law and fact are accorded the presumption of correctness. Manlove

v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992).

1.

On direct appeal, Aflleje-Torres challenged the quantity of

methamphetamine attributed to her. On her direct appeal, 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 present here,

issues disposed of on direct appeal will not be considered on a

collateral attack pursuant to a § 2255 motion. United States v.

Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (citations omitted).

2. & 3.

Aflleje-Torres did not raise her challenge to the district

court’s sentence on the basis of d- rather than l-methamphetamine

at sentencing or on direct appeal. Therefore, she may pursue this

issue in a § 2255 proceeding only if she can show cause and

prejudice resulting from that failure. See United States v.

Kissick, 69 F.3d 1048, 1054 (10th Cir. 1995). Aflleje-Torres may
- 5 -

establish cause for failing to raise a claim by demonstrating that

she was denied effective assistance of counsel. Id. (citations

omitted). 

In order to prevail on a claim of ineffective assistance of

counsel, a defendant must show that (1) his counsel’s performance

was constitutionally deficient, and (2) this deficient performance

was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); Cook, 49 F.3d at 665. Counsel’s performance is deficient

if the representation “falls below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. Prejudice is

established when a defendant demonstrates “a reasonable 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 counsel’s deficient

performance.” Kissick, 69 F.3d at 1055 (citing Lockhart v.

Fretwell, 506 U.S. 364, 369-70 (1993)). “Instead, in order to

establish the required prejudice, a defendant must demonstrate that

counsel’s deficient performance rendered the proceeding

‘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 nevertheless fail

because she has failed to show prejudice. At sentencing, it was
2 It is unclear from the record if this evidence was

presented at trial. However, new evidence may be presented in a

§ 2255 proceeding.

- 6 -

established that Aflleje-Torres was accountable for 1,332.45 grams

of methamphetamine. There was no discussion or any evidence

introduced regarding whether the methamphetamine involved 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 Property Collected,

Purchased or Seized.2 The 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 the 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 obligated to raise the

issue, the evidence presented demonstrates that Aflleje-Torres’

sentence would have been the same and, thus, is neither

“fundamentally unfair” nor “unreliable.”

Finally, Aflleje-Torres’ other claims for ineffective

assistance of counsel fail because she has not demonstrated 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 negotiations with her

or that a plea would have been accepted by the district court. She

has also failed to demonstrate what additional investigation was

necessary or how she was harmed by counsel’s alleged 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. The mandate shall

issue forthwith.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge