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UNITED STATES v. JAMES

January 23, 1996

UNITED STATES OF AMERICA, Respondent-Plaintiff,
v.
ALLEN J. JAMES, Petitioner-Defendant.



The opinion of the court was delivered by: RHOADES

ORDER DENYING MOTION FOR RECONSIDERATION

 This matter is before the Court on Petitioner Allen J. James' motion for reconsideration. Petitioner moves for reconsideration on the basis of newly discovered information from the DEA and Petitioner's newly discovered double jeopardy claim. For the reasons stated below, Petitioner's motion for reconsideration is denied.

 I. Motion For Reconsideration

 The Ninth Circuit recently articulated the appropriate standard for reconsideration under Fed.R.Civ.P. 59(e) and 60(b): absent "highly unusual circumstances," reconsideration is appropriate only where the court is presented with newly discovered evidence; the court committed "clear error or the initial decision was manifestly unjust;" or there is an intervening change in controlling law. School Dist. No. 1J, Multnomah County v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also William W. Schwarzer, et al., California Practice Guide: Federal Civil procedure Before Trial P 12:160 (1994) (citing School Dist. No. 1J).

 On August 4, 1995, this Court denied Petitioner's motion for habeas corpus relief pursuant to 28 U.S.C. § 2255. On September 15, 1995, this Court permitted Petitioner to file a motion for reconsideration. In support of his motion, Petitioner first argues that this Court made clear error. Petitioner then offers "newly discovered information" and a "newly recognized double jeopardy claim."

 A. Clear Error: Ineffective Assistance Of Counsel

 Petitioner's § 2255 motion alleged ineffective assistance of counsel because his trial attorney did not require the Government to prove that the methamphetamine involved in Petitioner's offense was d-methamphetamine rather than l-methamphetamine. This Court stated that to prevail on a claim of ineffective assistance of counsel, Petitioner must show that: (1) his attorney's performance was unreasonable under prevailing professional standards, and (2) that there is a "reasonable probability that but for counsel's unprofessional errors, the result would have been different." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting Strickland v. Washington, 466 U.S. 668, 687-91, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)).

 In concluding that Petitioner's counsel's performance was reasonable under prevailing professional standards, by way of example this Court recognized that to its knowledge no defense counsel has ever raised the issue as to the type of methamphetamine. That recognition, however, was not the sole basis for the Court's conclusion. On reconsideration, Petitioner misconstrues this Court's Order and states that the Court admitted that Petitioner's trial counsel was "negligent" and "incompetent." See Petitioner's Mot. at 1. Petitioner further argues that this Court excused his trial counsel's negligence because all other defense attorneys are equally incompetent. This Court made no such finding.

 Counsel's decision not to require the Government to prove the type of methamphetamine did not fall below the prevailing standards. As the court recently recognized in Lambert v. United States, 908 F. Supp. 356, 1995 WL 693123 (W.D. Va. 1995):

 
Counsel is entitled to rely on client's facts in developing strategy and arguing a case. Lambert has never alleged facts relevant to his case to support the L-Methamphetamine claim he now raises. The court is therefore quite reluctant to find incompetence in counsel's failure to object on these grounds.

 Id. at *4 This Court agrees.

 In the present case, Petitioner does not contend that he provided his trial counsel with any reason to suspect that the extremely rare l-methamphetamine was involved. For reasons known only to Petitioner, after he received the benefit of the plea bargain and after the drugs have been destroyed, he alleges for the first time in connection with his § 2255 motion that his source of drugs stated that the methamphetamine was being produced from Vicks Inhalers (a source of l-methamphetamine) and that he saw Vicks Inhalers in the source's car. Failure to make an objection for which there is no factual basis does not amount to ineffective assistance of counsel. See Lambert, 908 F. Supp. 356, 1995 U.S. Dist. LEXIS 17640, *19, 1995 WL 693123, *6 ("Assistance of counsel cannot be deemed inadequate for failing to make an objection when the grounds are factually inconceivable.")

 In the present case, the Court can say as a matter of law that Petitioner's trial counsel's performance did not fall below an objective standard of reasonableness under the prevailing standards. This standard is analogous, if not identical, to the standard for civil malpractice; *fn2" an attorney "impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." Lucas v. Hamm, 56 Cal. 2d 583, 591, 15 Cal. Rptr. 821, 364 P.2d 685 (1961). Discussing the rule against ...


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