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January 23, 1996

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

The opinion of the court was delivered by: RHOADES


 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.")

 Petitioner draws comfort in the Fifth Circuit's decision in United States v. Acklen, 47 F.3d 739 (5th Cir. 1995). Acklen, however, is likewise inapplicable. In Acklen, the district court denied a § 2255 petitioner and held that trial counsel's failure to object to the type of methamphetamine was not ineffective assistance of counsel. Id. at 743. The Fifth Circuit reversed and stated that "merely reading the commentary to [ § 2D1.1] would have alerted counsel to the potentially significant impact on sentencing that the type of isomers involved can have." Id. The court did not hold that counsel's performance was unreasonable, it merely held that it could not say that the record demonstrated as a matter of law that counsel acted reasonably. Id.1

 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 perpetuities and restraints on alienation -- two subjects which at times are equally as confusing as the Sentencing Guidelines -- the California Supreme Court stated:


These closely akin subjects have long perplexed the courts and the bar. Professor Gray, a leading authority in the field stated: "There is something in the subject which seems to facilitate error. Perhaps it is because the mode of reasoning is unlike that with which lawyers are most familiar. . . . A long list might be formed of the demonstrable blunders with regard to its questions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spreads for the unwary, or at least shuddered to think how narrowly they have escaped it." Gray, The Rule Against Perpetuities, (4th Ed. 1942) p. xi.

 56 Cal. 2d at 592. The court concluded that an attorney, who allegedly drafted a will which violated the rule against perpetuities and restraints on alienation, did not fail to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity to commonly exercise.

 Without finding that any error in this case was made, it must be observed that there is something in the Sentencing Guidelines which seems to facilitate error. The Guidelines present a morass which is at times as esoteric as the rule against perpetuities. This Court does not find it proper to hold that an attorney has provided constitutionally ineffective assistance for not making an objection at sentencing for which there is no factual basis and which is based on a highly unlikely premise. Although Petitioner bears the burden of proof, he has not established that a reasonably competent attorney -- using such skill, prudence, and diligence as lawyers of ordinary skill -- would require the Government to prove that drugs are anything other than plain "methamphetamine" when the Government assumes, Probation assumes, the judge assumes, and the defendant confesses that he possessed "methamphetamine." It is quite easy to spin the telescope around and suggest what counsel could have done. *fn3" However, the court does "not look at counsel's performance through the distorting lenses of hindsight, but rather examine counsel's performance according to what was reasonable at the time." Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989), vacated on other grounds, 113 S. Ct. 367 (1992).

 In view of the complexity of the Sentencing Guidelines, *fn4" and in accordance with this Court's prior ruling, Petitioner has not overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1986).

 Even if his trial counsel's conduct fell below an objective standard of reasonableness, this Court finds that Petitioner cannot satisfy his burden to establish he was prejudiced; i.e., Petitioner has not established a "reasonable probability" that the result of his sentencing would have been different had his trial counsel required the Government to prove the type of methamphetamine involved in Petitioner's offense. In addition to Petitioner's failure to bring the issue to his trial counsel's attention, the facts of his arrest undermine Petitioner's contention that he possessed l-methamphetamine rather than d-methamphetamine. D-methamphetamine produces the high desired by drug users whereas l-methamphetamine produces "little or no physiological effect when ingested." United States v. Bogusz, 43 F.3d 82, 89 (3d Cir. 1994). The Presentence Report indicates that at the time of his arrest, the police officers observed that Petitioner "appeared hyperactive" and his "pupils were dilated and would not constrict." Presentence Report at 2:36-39. *fn5" Further, as noted in this Court's prior order, Petitioner declares that he was able to achieve his "normal high," by using the substance he now claims was l-methamphetamine. This Court concludes that the facts surrounding Petitioner's arrest coupled with his own admissions, tends to show that Petitioner did not in fact possess l-methamphetamine but rather possessed d-methamphetamine, the drug for which he was sentenced.

 Petitioner argues that the high standard for proving ineffective assistance of counsel unconstitutionally shifts the burden of proof to the petitioner. In his "supplemental motion," *fn6" Petitioner argues that the Ninth Circuit's recent decision in United States v. Dudden, 65 F.3d 1461 (9th Cir. 1995), requires a finding that it was plain error for the Government to not determine the type of methamphetamine involved. Petitioner is mistaken. The court in Dudden stated, as this Court stated in its prior order, that the Government bears the burden of proof at sentencing to prove by a preponderance of the evidence the type of methamphetamine involved in a drug offense. Id. at 1470. In Dudden, the defendant argued at sentencing that the drugs involved were l-methamphetamine. Id. at 1469-70. The defendant there appealed from the district court's finding that the drugs involved were d-methamphetamine. Thus, Dudden involves an appeal from sentencing where the burden of proof was on the Government. By contrast, the present case involves an allegation of ineffective assistance of counsel for which the burden of proof is on Petitioner. Thus, Dudden does not apply to the instant motion for habeas corpus relief. This Court finds that Petitioner's self-serving declaration, submitted after the drugs have been destroyed, does not carry Petitioner's burden of proof. *fn7"

 B. Newly Discovered Information

 Petitioner also presents this Court with "newly discovered information." Specifically, Petitioner provides various documents from the Drug Enforcement Administration demonstrating that it is possible to produce l-methamphetamine from Vicks Inhalers. Petitioner's newly discovered documents do not establish that he in fact possessed l-methamphetamine. Thus, Petitioner has not established a "reasonable probability" that the result of his sentencing would have been different had his counsel required the Government to prove the type of methamphetamine involved in Petitioner's offense. *fn8"

 C. Double Jeopardy

 Finally, Petitioner asserts a "newly recognized double jeopardy claim." Petitioner primarily relies on United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), amended, 56 F.3d 41 (9th Cir. 1995), cert. granted, 133 L. Ed. 2d 707, 116 S. Ct. 762, 1996 WL 12801 (1996). In that case, the court held that a criminal prosecution following civil forfeiture proceedings pertaining to the same offense violates the Double Jeopardy Clause if (1) the civil forfeiture action and the criminal prosecution constitute separate proceedings and (2) the civil forfeiture action constitutes "punishment." Id. at 1216.

 Subsequent to $ 405,089.23, the Ninth Circuit has made clear that "an owner who receives notice of the intended forfeiture and fails to claim an ownership interest in the property has effectively abandoned it." United States v. Cretacci, 62 F.3d 307, 310 (9th Cir. 1995). The court concluded that the forfeiture of abandoned property does not constitute punishment and therefore "cannot be said to implicate the former owner's double jeopardy rights." Id. at 310-11; see also United States v. Torres, 28 F.3d 1463 (7th Cir.) ("The $ 60,000 was forfeited without opposition, and jeopardy did not attach."), cert. denied, 130 L. Ed. 2d 603, 115 S. Ct. 669 (1994); United States v. Walsh, 873 F. Supp. 334, 337 (D. Ariz. 1994) (holding defendant "was not placed in jeopardy nor 'punished' in a constitutional sense" because defendant failed to make a timely claim to the forfeited property); United States v. Kemmish, 869 F. Supp. 803, 805 (S.D. Cal. 1994) (same) (Turrentine, J.), aff'd, 1995 U.S. App. LEXIS 27,294 (9th Cir. Sept. 12, 1995).

 In the present case, Petitioner contends that he was criminally prosecuted after his car was seized and forfeited. However, this Court held in a prior order that "James never made a claim to his property and he does not dispute the adequacy of notice for the forfeiture proceedings." United States v. James, Cr. No. 90-1303-R (Oct. 30, 1995) ("Order Denying Motion For Return Of Property"). Since Petitioner now concedes that he did not contest the forfeiture proceedings, the result in this case is controlled by Cretacci:9 forfeiture of Petitioner's abandoned property did not constitute punishment and therefore did not implicate Petitioner's double jeopardy rights. "An accused must suffer jeopardy before he can suffer double jeopardy." United States v. Wong, 62 F.3d 1212, 1214 (9th Cir. 1995) (citing Serfass v. United States, 420 U.S. 377, 393, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975)). Since Petitioner never suffered former jeopardy, he did not suffer double jeopardy.

 D. No Evidentiary Hearing Is Required

 A court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Shah v. United States, 878 F.2d 1156, 1159 (9th Cir.) cert. denied, 493 U.S. 869, 107 L. Ed. 2d 149, 110 S. Ct. 195 (1989). This Court finds that an evidentiary hearing is unnecessary in this matter since the records conclusively show that Petitioner is not entitled to relief.

 II. Conclusion

 Petitioner has failed to establish error in this Court's prior order. In addition, Petitioner's newly discovered information does not call for a different conclusion and his double jeopardy argument is without merit. For these reasons, Petitioner's motion for reconsideration is denied.


 Date: 1/23/96

 John S. Rhoades, Sr.

 United States District Judge

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