U.S. v. Apfel, No. 96-1333

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before FAGG, HEANEY, and MURPHY; HEANEY
• Citation: 97 F.3d 1074
• Parties: UNITED STATES of America, Appellee, v. Monte Allen APFEL, Appellant.
• Docket Number: No. 96-1333
• Decision Date: 07 October 1996

Page 1074

97 F.3d 1074 UNITED STATES of America, Appellee,
v.
Monte Allen APFEL, Appellant. No. 96-1333. United States Court of Appeals,
Eighth Circuit. Submitted Sept. 10, 1996.
Decided Oct. 7, 1996.

Page 1075

Dean Stowers, argued, Des Moines, IA, for appellant.

Janet L. Papenthien, Assistant U.S. Attorney, argued, Sioux City, IA, for appellee.

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).

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 (Levo-methamphetamine), a substance that carried far less severe exposure under the sentencing guidelines as of the time of Apfel's crime. ¹ The difference 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, --- U.S. ----, 115 S.Ct. 1812, 131 L.Ed.2d 736 (1995). ²

Page 1076

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 were l-type methamphetamine. ³ The district court then denied Apfel's 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 cause for the procedural default and actual prejudice resulting from the error. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, in order to prevail on a claim of ineffective...