U.S. v. Acklen, 96-30019
| Decision Date | 09 August 1996 |
| Docket Number | No. 96-30019,96-30019 |
| Citation | 97 F.3d 750 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffery R. ACKLEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Josette Louise Cassiere, Assistant U.S. Attorney, Robert Watts Gillespie, Jr., Office of the United States Attorney, Shreveport, LA, for United States of America, plaintiff-appellee.
Marcia Gail Shein, Atlanta, GA, for Jeffrey R. Acklen, defendant-appellant.
Appeal from the United States District Court for the Western District of Louisiana.
Before SMITH, DUHE and BARKSDALE, Circuit Judges.
Acklen pleaded guilty to distribution of methamphetamine and conspiring to manufacture methamphetamine and was sentenced on the basis of d-methamphetamine. His motion under 28 U.S.C. § 2255 was denied by the district court; and we vacated that judgment and remanded. 1 On remand, the district court again denied relief. We affirm.
Originally Acklen claimed trial counsel was ineffective for failure to contend at sentencing that the drug involved was l-methamphetamine and not d-methamphetamine. He made only conclusory allegations however. We remanded stating:
On remand, Acklen should tender some specific, verified basis or evidence, beyond his mere naked assertion or belief, that the drug was in fact l-methamphetamine. If Acklen makes such a showing, he may be entitled to limited discovery and an evidentiary hearing.
On remand, Appellant made no such showing. He simply argued that since the isomer of the drug could not be identified the rule of lenity required that the drug be regarded as l-methamphetamine. The district court recognized that the motion could be denied on that basis alone and so held. However, it allowed Appellant an evidentiary hearing at which the evidence established that the drug involved was made with a precursor chemical that would have produced a 50-50 mixture of d-methamphetamine and l-methamphetamine. Accordingly, the district court correctly found that Acklen had failed to show that he had been prejudiced by his attorney's failure to raise the issue.
Going even further, the district court held that Acklen also failed to demonstrate prejudice because even had trial counsel raised the issue, there was no reasonable probability that the court would have been persuaded to adopt what would have been a novel argument at that time, citing United States v. Seyfert, 67 F.3d 544, 549 (5th Cir.1995). We see no error in this holding.
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Reece v. U.S.
...been different if his counsel had required the government to prove that the offense involved d-methamphetamine"); United States v. Acklen, 97 F.3d 750, 751 (5th Cir.1996) (holding that defendant failed to establish prejudice from counsel's failure to argue at sentencing that drug involved w......
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Parker v. United States, Case No. 11-5016-CV-SW-RED-P
...not demonstrate a reasonable probability that the Eighth Circuit would decide this issue in Parker's favor. See United States v. Acklen, 97 F.3d 750, 751 (5th Cir. 1996) (affirming the district court's determination that Strickland prejudice cannot be established because there was not a rea......
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