Jones v. United States ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 29, 2000
No. 97-8958
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00041-3-CV-RLV
CHARLES LARRY JONES,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 29, 2000)
Before TJOFLAT, WILSON and FLETCHER*,Circuit Judges.
WILSON, Circuit Judge:
Charles Larry Jones, a federal prisoner convicted on drug charges, appeals
______________
*Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. As a threshold matter, we rule that we will expand Jones’s certificate of
appealability (COA) to include issues beyond those certified by the district court,
especially when, as here, we have received a specific request directing us to the
particular issue the petitioner wishes to appeal. Because Jones has shown that his
counsel rendered ineffective assistance by failing to move for suppression of
evidence and failing to object to a general sentence, we remand for further
proceedings to determine whether his counsel’s ineffectiveness deprived Jones of a
fair trial, and for resentencing if necessary.
BACKGROUND
The Underlying Criminal Case
On July 14, 1988, the government obtained an investigative warrant to tap
Jones’s phone. Thereafter, the government intercepted and taped conversations
between Jones and others until August 18, 1988.1 Acting on information from the
intercepted conversations, the government arrested Jones and several other alleged
conspirators on August 18, 1988. Nothing in the trial court record shows that the
tapes from the tapped phone conversations were sealed pursuant to a written
sealing order. However, it appears that on September 19, 1988, a judge orally
1
The warrant’s expiration date, after being extended, was August 23, 1988.
2
granted a request to seal the tapes.2 This thirty-one-day delay became significant
in light of a development in Supreme Court precedent occurring while Jones’s case
was pending.3
This development pertained to 18 U.S.C. § 2518(8)(a)’s requirement that
wiretap tapes be sealed “immediately” upon expiration of the order authorizing the
wiretap. When Jones was arrested, the law of this circuit was that a court would
not grant a motion to suppress based on a delay in sealing wiretap evidence, unless
the defendant could show prejudice or that the integrity of the recordings was
disturbed.4 On October 10, 1989, the Supreme Court granted certiorari to resolve
an inter-circuit conflict regarding whether this “prejudice” requirement was
appropriate.5 Over one month after the grant of certiorari, Jones’s counsel moved
to suppress the wiretap evidence. The motion mentioned neither the delay in
2
A transcript of proceedings in the Superior Court for Cobb County, Georgia shows that
Judge P. Harris Hines received the tapes and signed a receipt on the back of the investigative
warrant stating “Receipt of black, rectangular, metal box, containing 21 cassettee (sic) tapes
hereby acknowledged. This the 19th day of Sept., 1988.”
3
See 18 U.S.C. § 2518(8)(a) (requiring sealing of evidence tapes “immediately” upon
expiration of order authorizing wiretap).
4
See United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977); Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding precedent all
cases decided in the 5th Circuit prior to the close of business on September 30, 1981).
5
See United States v. Ojeda Rios, 493 U.S. 889 (Oct. 10, 1989) (granting certiorari to
review United States v. Ojeda Rios, 875 F.2d 17 (2d Cir. 1989)).
3
sealing the tapes nor the grant of certiorari.6 The magistrate judge recommended
denying the motion to suppress.
The tapes were entered into evidence and played to the jury at trial. The jury
convicted Jones on four counts: conspiring to make and distribute
methamphetamine, manufacturing a precursor of methamphetamine called phenyl-
2-propanone, and two counts of attempting to make methamphetamine. The
district court imposed a general sentence of 360 months’ imprisonment on all four
counts. Jones’s counsel did not object to the general nature of the sentence.
Jones’s counsel filed a notice of appeal on April 30, 1990 – the same day the
Supreme Court issued its opinion in United States v. Ojeda Rios.7 The record does
not reflect that Jones’s counsel raised on appeal the change in law regarding
suppression of wiretap evidence. This court affirmed Jones’s conviction without
mentioning the delay in sealing the wiretap evidence. See United States v. Jones,
940 F.2d 673 (1991), cert. denied, sub nom. Newsome v. United States, 502 U.S.
1076 (1992).
The § 2255 Proceedings
6
A memorandum in support of the suppression motion, filed two months after the grant
of certiorari, likewise made no mention of the sealing delay.
7
See United States v. Ojeda Rios, 495 U.S. 257 (1990) (ruling that defendant need not
show prejudice to obtain suppression; government could not use wiretap evidence unless it could
show either prompt sealing of tapes or a reasonable excuse for not doing so).
4
Jones moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. Among the grounds for Jones’s motion were that his attorney
ineffectively failed to (1) move to suppress wiretap evidence; (2) object to an
unlawful general sentence; and (3) object to Jones’s sentence being enhanced
based on a type of methamphetamine for which there was no proof Jones had
made, had attempted to make, or had conspired to manufacture. The district court
denied Jones’s § 2255 motion. Jones appealed. The district court certified only
two issues for appeal:
Whether the defendant was deprived of the effective assistance of
counsel by (1) his attorney’s failure to require proof as to the kind of
methamphetamine for which the defendant was to be sentenced and
(2) his attorney’s failure to object to the general sentence imposed by
the court.
Jones then asked this court to expand the COA to cover the wiretap issue.
DISCUSSION
Certificate of Appealability (COA)
As a threshold matter, we must resolve whether we will expand our review
beyond the two issues certified for appeal by the district court. Jones appealed
from the denial of his § 2255 motion on August 27, 1997. His appeal is therefore
governed by the COA requirements of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See Slack v. McDaniel, __ U.S. __, 120 S. Ct.
5
1595, 1600 (2000) (when appeal is initiated after April 24, 1996, AEDPA’s
appellate provisions apply).
Under the AEDPA, a petitioner must obtain a COA before he can appeal the
denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). The COA must
indicate specific issues for which the appellant “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see 28 U.S.C. §
2253(c)(3). Our review is limited to the issues specified in the COA. See Murray
v. United States, 145 F.3d 1249, 1250 (11th Cir. 1998). Therefore, unless Jones
succeeds in expanding the district court’s COA, we will not consider Jones’s
uncertified appellate claim that he was deprived of the effective assistance of
counsel with respect to the suppression of wiretap evidence.
The COA process begins in the district court when the prisoner files either a
notice of appeal or a request for a COA. See Fed. R. App. P. 22(b); 11th Cir. R.
22-1; Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). If the
district court declines to issue a COA, this court can issue one pursuant to Fed. R.
App. P. 22(b)(2). Thus, “[u]nder the plain language of the rule, an applicant for the
writ gets two bites at the appeal certificate apple: one before the district judge, and
if that one is unsuccessful, he gets a second one before a circuit judge.” Hunter v.
United States, 101 F.3d 1565, 1575 (11th Cir. 1996) (en banc), partially overruled
6
on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997). An appellant can seek
this “second bite” by expressly requesting this court to issue a COA, or by filing a
notice of appeal. See Fed. R. App. P. 22(b)(2).
Therefore, the rules provide that a bare notice of appeal can serve as a
request for us to revisit a district court’s complete refusal to issue a COA. But the
rules do not expressly cover the situation where the district court issues not a total
denial, but a partial denial, by granting a COA on less than all the issues the
petitioner wishes to appeal. Does a bare notice of appeal suffice as a request to
broaden the scope of the certificate?
The circuits are divided on whether an appellant seeking to expand a COA
may do so simply by filing a notice of appeal,8 or whether he or she must request a
broader COA by presenting the uncertified issue to the circuit court’s attention
explicitly.9 The government argues that the Eleventh Circuit falls in the latter
8
See Ross v. Ward, 165 F.3d 793, 797, 802 (10th Cir.) cert. denied sub nom. Ross v.
Gibson, ___ U.S. ___, 120 S. Ct. 208 (1999) (considering request to broaden certificate when
petitioner requested in his brief that COA be expanded, but ultimately ruling that petitioner had
not made “substantial showing” of denial of constitutional right on uncertified issues); Kincade
v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997) (“ By filing a notice of appeal, Kincade filed an
informal request with this Court to review the district court’s denial as to his remaining claims.);
Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997) (when district court granted limited
certificate, notice of appeal “in effect” asked circuit court to expand COA).
9
See Bui v. Dipaolo, 170 F.3d 232, 237 (1st Cir. 1999) (“[W]e will not treat an
inexplicit notice of appeal, without more, as an invitation to review the district court’s denial of
certification with regard to the petitioner’s remaining claims.”); United States v. Kimler, 150
F.3d 429, 430 (5th Cir. 1998) (requiring express request to expand COA and ruling that notice of
7
category, citing Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999), petition for
cert. filed, __U.S.L.W. __ (U.S. June 12, 2000) (No. 99-10113). There we
suggested that AEDPA petitioners could expand a COA only by filing a request
with this court before briefing:
An application to expand the certificate must be filed promptly, well
before the opening brief is done. Arguments in a brief addressing
issues not covered in the certificate, including any expansion granted
by the court of appeals, will not be considered as a timely application
for expansion of the certificate; those issues simply will not be
reviewed.
Id. at 1332. But because Tomkins involved pre-AEDPA law, its statements
regarding AEDPA procedure are dicta.
The “explicit request” requirement for expanding a COA has its pros and
cons. It furthers the usefulness of the COA by directing the parties’ attention at an
early stage of the proceedings to the vital issues. On the other hand, an appellant
who receives a partial COA can be actually worse off than one whose application
for a COA is denied in full by the district court; when a COA application is totally
appeal was not a constructive request to expand certificate to cover uncertified issues) ; cf.
Hunter v. Bowersox, 172 F.3d 1016, 1019 (8th Cir. 1999) (appellant applied for expanded
certificate; circuit court expanded certificate without discussion), cert. denied, __U.S.__, 120 S.
Ct. 987 (2000). In the Ninth Circuit, a petitioner seeking to broaden the scope of appealable
issues must file a “motion for broader certification” within 35 days after the district court issues
a partial COA. See 9th Cir. R. 22-1(d); United States v. Zuno-Arce, 209 F.3d 1095, 1099-100
(9th Cir. 2000) (citing local rule and quoting Advisory Committee Note that “‘if a party wishes
to ask the merits panel to broaden the scope of the appeal beyond what was allowed by a motions
panel of this court, such a motion . . . may be filed in the court of appeals promptly after the
completion of briefing.’”).
8
denied, we treat the notice of appeal as an application for this court to issue a COA
and consider de novo whether to grant one. Cf. Fed. R. App. P. 22(b)(2); Hunter,
101 F.3d at 1575.
At any rate, we need not decide the issue today, for Jones has satisfied the
more stringent standard by presenting this court with an explicit request to broaden
his COA. He did so by moving in this court for an enlargement of time to file an
application for a COA covering all the issues raised in his § 2255 motion. A judge
of this court denied the motion and directed Jones to limit his brief to the two
issues certified for appeal. Jones moved for panel reconsideration of the single-
judge denial. Attached to his motion was an application to amend the COA,
specifically presenting the additional claim Jones wishes to present before this
court today: that he was denied effective assistance of counsel with respect to the
suppression of wiretap evidence.
The government moved to dismiss the portions of Jones’s appeal that
addressed uncertified issues. A two-judge panel of this court ordered the
government’s motion and Jones’s motion for reconsideration to be carried with the
case. Later, a three-judge panel ordered that Jones’s motion for reconsideration be
denied and that the government’s motion to dismiss be carried with the case.
At oral argument, the government suggested that Jones should be limited to
9
arguing the two certified claims, as indicated by the denial of reconsideration of the
order limiting Jones to two issues. However, the motion panel’s denial does not
bind the panel hearing the case on the merits. See 11th Cir. R. 27-1(g) (“A ruling
on a motion or other interlocutory matter . . . is not binding upon the panel to
which the appeal is assigned on the merits, and the merits panel may alter, amend,
or vacate it.”); Vann v. Citicorp Savings, 891 F.2d 1507, 1509 n.2 (11th Cir. 1990)
(citing rule). In other words, the “law of the case” doctrine10 does not apply to an
administrative ruling issued pending oral argument. Cf. Henry v. Department of
Corrections, 197 F.3d 1361, 1366 n.2 (11th Cir. 1999) (motions judge’s ruling on
COA was not law of the case on future appeal).
Because Jones explicitly requested that his COA be expanded to cover the
wiretap suppression issue, and because we find that he has made a substantial
showing that he was denied his constitutional right to effective assistance of
counsel, we grant Jones’s request to expand the scope of his certificate. We certify
this additional issue: whether the defendant was deprived of the effective
assistance of counsel by his attorney’s failure to argue for the suppression of
wiretap evidence due to the sealing requirements of 18 U.S.C. § 2518(8)(a).
10
Cf. In re Justice Oaks II, Ltd. (Wallis v. Justice Oaks II, Ltd.), 898 F.2d 1544, 1549
n.3 (11th Cir. 1990) (explaining doctrine); 18 Wright, Miller, et al., Federal Practice &
Procedure § 4478 (1981 and 2000 Supp.).
10
Ineffective Assistance of Counsel
In reviewing the denial of a § 2255 motion, we examine legal issues de novo
and underlying factual findings for clear error. See, e.g., Castillo v. United States,
200 F.3d 735, 736 (11th Cir. 2000) (per curiam). Ineffectiveness of counsel is a
mixed question of law and fact reviewed de novo. See Meeks v. Moore, 11th Cir.,
216 F.3d 951, 959 (11th Cir. 2000).
To establish that he was denied his Sixth Amendment right to effective
counsel, Jones must show two things. First, Jones must show that his counsel was
deficient; that is, that his representation “‘fell below an objective standard of
reasonableness.’” Williams v. Taylor, __ U.S. __, 120 S. Ct. 1495, 1511 (2000)
(quoting Strickland v. Washington, 466 U.S. 668, 688). Second, Jones must show
that the deficient performance prejudiced his right to a fair trial. See id. Prejudice
is found when “‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Id.
at 1512 (quoting Strickland, 466 U.S. at 694). We address Jones’s contentions in
turn.
Suppression of Wiretap Evidence
Jones states that his counsel was deficient in failing to argue for the
suppression of wiretap evidence based on the sealing requirements of 18 U.S.C. §
112518(8)(a). We agree.
18 U.S.C. § 2518(8)(a) requires that immediately upon expiration of an
order authorizing interception and recording of certain communications, the
recordings must be sealed under the direction of the judge who issued the order.
The statute contains “an explicit exclusionary remedy for noncompliance,”
providing that “‘the presence of the seal . . . or a satisfactory explanation for the
absence thereof, shall be a prerequisite for the use or disclosure of the contents’” of
the recordings, or evidence derived therefrom, in a proceeding. United States v.
Ojeda Rios, 495 U.S. 257, 260 (1990) (quoting 18 U.S.C. § 2518(8)(a)). In Jones’s
case, the record indicates the tapes of the wiretap surveillance of his telephone
were sealed, at best, no earlier than thirty-one days after the surveillance
terminated.11 The government has proffered no explanation for the delay in sealing
the tapes.
When the case against Jones began, the law of this circuit was that a delay in
the sealing of wiretap recordings did not require suppression if the government
“accounted for the delay” and there was no showing of prejudice or that the
integrity of the recordings was disturbed. United States v. Diadone, 558 F.2d 775,
11
Jones has provided this court with a transcript of state court proceedings in which a
Cobb County judge agreed to receive the tapes and seal them, but there is currently no evidence
in the district court record that the tapes were ever judicially sealed at all.
12
780 (5th Cir. 1977); see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc) (adopting as binding precedent all cases decided in the Fifth
Circuit prior to the close of business on September 30, 1981).
On October 10, 1989, the Supreme Court granted certiorari to review United
States v. Ojeda Rios, a Second Circuit case that reached a result contrary to that
which would have been reached under this court’s precedent.12 From that date,
Jones’s counsel was on notice that the Court would be considering the
circumstances under which wiretap evidence must be suppressed. Over a month
after the grant of certiorari, Jones’s counsel moved to suppress the wiretap
evidence. Jones’s motion did not raise the delay in sealing the tapes as a basis for
their suppression. Nor did it mention the grant of certiorari. Even two months
after the grant of certiorari, when filing a memorandum in support of the
suppression motion, counsel did not raise the issue.
Since the district court would be required to follow the law of this circuit
until it was overruled by the Supreme Court or an en banc panel of this court, it
was not completely unreasonable for counsel to make a strategic decision to forego
12
See United States v. Ojeda Rios, 493 U.S. 889 (Oct. 10, 1989) (granting certiorari to
review United States v. Ojeda Rios, 875 F.2d 17 (2d Cir. 1989)).
13
a claim that was a loser under the then-current state of the law.13 The highest
standards of practice would suggest that Jones’s counsel should have acted to
preserve Jones’s rights in light of the Supreme Court’s unequivocal signal that a
ruling would be forthcoming.14 But we are not prepared to say categorically that
counsel’s failure to do so constituted prejudicial, ineffective nonfeasance while the
law was still unsettled. See Strickland, 466 U.S. at 689 (reviewing court should
not second-guess or apply hindsight); Sullivan v. Wainwright, 695 F.2d 1306, 1309
(11th Cir. 1983) (counsel’s “failure to divine” change in unsettled law did not
constitute ineffective assistance); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir.
Unit A Apr. 1981) (“counsel is normally not expected to foresee future new
developments in the law”).
Once the Supreme Court ruled in Ojeda Rios, however, the situation became
completely different. There was no need for speculation or clairvoyance. The
13
Under Diadone, Jones would not be entitled to suppression unless he could have shown that
he was prejudiced by the delay or that the integrity of the tapes was compromised. See Diadone,
558 F.2d at 780. Nothing in the record indicates that Jones could have made such a showing.
14
For example, see United States v. Carson, 969 F.2d 1480, 1483 (3d Cir. 1992). There,
although pre-Ojeda Third Circuit precedent was similar to ours, counsel moved to suppress tapes
due to delays in sealing. The tapes were not suppressed. Counsel preserved their clients’ rights
by moving for new trials, appealing, and filing petitions for certiorari with the Supreme Court.
See id. Thus, when the Supreme Court issued its opinion in Ojeda Rios, the Third Circuit
recalled its mandate and remanded the cases to the district court for reevaluation of the wiretap
suppression issues. See id. Ideally, Jones’s counsel would have taken similar steps, preserving
the issue for direct review.
14
Supreme Court had rejected the Eleventh Circuit’s requirement that a defendant
had to show prejudice, or that the evidence had become compromised, as a
prerequisite to suppression. See Ojeda Rios, 495 U.S. at 264-65 (statute requires
“satisfactory explanation” for delay, not just “proof of nontampering”). The law
was then clear that unless the government could come up with a satisfactory
explanation for the thirty-one day delay in sealing Jones’s tapes, the tapes and all
evidence derived from them should have been suppressed. See Ojeda Rios, 495
U.S. at 265 and n.5 (overruling our precedent in Diadone); cf. United States v.
Feiste, 961 F.2d 1349, 1350 (8th Cir. 1992) (affirming suppression when 31-day
delay not excused).
Coincidentally, the Court issued its opinion in Ojeda Rios the same day
Jones’s counsel filed his notice of appeal. The “satisfactory explanation”
requirement of Ojeda Rios applied retroactively to Jones’s case, which had not
even been briefed on appeal, much less become final. See Harper v. Virginia
Dep’t of Taxation, 509 U.S. 86, 97 (1993) (when Supreme Court applies rule of
federal law, that rule “must be given full retroactive effect in all cases still open on
direct review”); Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases . . .
pending on direct review or not yet final”). Once Ojeda Rios was decided, it was
15
clear that its holding applied to Jones’s case. Therefore, failing to argue for
suppression in light of the thirty-one day delay in sealing the tapes fell below an
“objective standard of reasonableness.” Strickland, 466 U.S. at 688.
This failure alone, however, will not entitle Jones to relief unless he can
show he was prejudiced by it. See id. at 687. Jones must show a reasonable
probability that the outcome of his case would have been different if his counsel
had argued for suppression based on the delay in sealing the tapes. The district
court did not resolve this issue because it erroneously considered Jones’s counsel
to have acted effectively merely by filing the original suppression motion.
Accordingly, we remand to the district court for consideration of whether
Jones’s conviction could stand without the use of the wiretap evidence or its fruits.
Cf. Kimmelman v. Morrison, 477 U.S. 365, 389 (1986) (test is “whether a
reasonable probability exists that the trial judge would have had a reasonable doubt
concerning respondent’s guilt if the [excludible evidence] and related testimony
had been excluded”). If the wiretap evidence was crucial to Jones’s conviction, the
district court must then determine whether the government had a “satisfactory
explanation” for the thirty-one day delay in sealing the tapes, if indeed they were
ever sealed. See Ojeda Rios, 495 U.S. at 265 (government must explain “not only
why a delay occurred but also why it is excusable”); United States v. Carson, 969
16
F.2d 1480, 1483, 1491-98 (3d Cir. 1992) (noting that circuit court had remanded
suppression issues for district court’s consideration in light of Ojeda Rios, and
discussing factors excusing delay).15 If the government cannot establish a
satisfactory reason for the delay, and it is reasonably certain the outcome of Jones’s
case would have been different if the wiretap evidence were suppressed, Jones was
deprived of his Sixth Amendment right to a fair trial and deserves relief under 28
U.S.C. § 2255.
Sentencing
If the district court determines that Jones’s conviction and sentence should
not be vacated due to the use of the wiretap evidence, a second issue must be
reached. Jones argues that the district court erred in failing to vacate or amend his
sentence due to his attorney’s failure to object to the general sentence imposed by
the court. “A defendant has a constitutional right to effective assistance of counsel
at sentencing.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). This
court applies the Strickland test for effective assistance of counsel to noncapital as
15
For cases discussing what constitutes excusable delay, see, e.g., United States v. Quintero,
38 F.3d 1317, 1325-31 (3d Cir. 1994); Feiste, 961 F.2d at 1351; United States v. Pedroni, 958
F.2d 262, 266-267 (9th Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 950 (2d
Cir. 1990).
17
well as capital sentencing cases.16
Jones was convicted of four counts relating to the manufacture and
distribution of methamphetamine. The district court imposed a general sentence of
360 months’ imprisonment for all four counts. “A general sentence is an undivided
sentence for more than one count that does not exceed the maximum possible
aggregate sentence for all the counts but does exceed the maximum allowable
sentence on one of the counts.” United States v. Woodard, 938 F.2d 1255, 1256
(11th Cir. 1991).
As the district court noted, since “general sentences have been held to be per
se illegal in our circuit,”17 if Jones had challenged his sentence on appeal, this court
would have vacated the sentence and remanded for resentencing. Under this
scenario, the district court concluded, it would have resentenced Jones to the same
360-month term of imprisonment. Because Jones would not have received a lesser
sentence, the court reasoned, he suffered no prejudice and was not entitled to relief
under § 2255.
The test, however, is not what the court might have done; the test is whether
16
See Strickland, 466 U.S. at 686 (leaving open the issue of how to define “constitutionally
effective assistance” in noncapital sentencing cases); Reece v. United States, 119 F.3d 1462,
1464 (11th Cir. 1997) (using Strickland test to determine whether counsel effectively represented
defendant during sentencing phase of noncapital methamphetamine case).
17
Woodard, 938 F.2d at 1256.
18
the original sentence comported with the law. See Strickland, 466 U.S. at 695(“[E]vidence about, for example, a particular judge’s sentencing practices[] should
not be considered in the prejudice determination.”). Accordingly, we vacate
Jones’s sentence and remand for resentencing.
Failing to Object to Holding Jones Accountable for D-methamphetamine
Jones argues that his counsel was ineffective in failing to object to his
sentence because he was not proven to have attempted or conspired to produce a
particular type of methamphetamine, D-methamphetamine, that draws a harsher
sentence than the more benign L-methamphetamine. D-methamphetamine
produces the physiological effects desired by the drug’s users; L-
methamphetamine has little or no physiological effect, is not made intentionally
but results from a botched attempt to produce D-methamphetamine, and is utterly
worthless. See Reece v. United States, 119 F.3d 1462, 1469 (11th Cir. 1997). To
establish prejudice based upon counsel’s failure to object to the use of D-
methamphetamine at sentencing, a petitioner must represent that he can establish
that the methamphetamine involved was the L-type. See id. at 1468. Where the
record and common sense indicate no dispute as to which form of the drug was
involved in the offense, no prejudice can be shown. See id. at 1470-71.
Trial evidence revealed that Jones wanted to manufacture “some real strong
19
methamphetamine, strong enough so that it could be cut.” Only D-
methamphetamine produces a strong physiological effect. See id. at 1469. Jones
has not pointed to any record evidence that establishes his intent to manufacture L-
methamphetamine. Thus, he cannot show prejudice from his counsel’s failure to
object, and we affirm the district court’s denial of relief.
CONCLUSION
We grant Jones’s request to expand the certificate of appealability. Because
Jones’s counsel failed to argue a change in controlling precedent that warranted
moving for suppression of wiretap evidence, we remand for consideration of
whether that failure deprived Jones of a fair trial under Strickland v. Washington.
Further, we vacate Jones’s general sentence and remand for resentencing if
necessary. In all other respects, we affirm the judgment of the district court.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
20