                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 11 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-5206
                                                    (D.C. No. 94-CV-995-E
    ROBERT LEE GLOVER,                                         &
                                                         89-CR-56-E)
                Defendant-Appellant.                     (N.D. Okla.)




                            ORDER AND JUDGMENT            *




Before TACHA and McKAY , Circuit Judges, and         BROWN, ** Senior District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      This appeal arises from defendant’s second motion to vacate, set aside, or

correct his sentence, pursuant to 28 U.S.C. § 2255. Defendant pled guilty to a

two-count indictment charging conspiracy to distribute, and aiding and abetting

the distribution of methamphetamine. He did not take a direct appeal. In 1991,

defendant filed his first § 2255 motion. That motion was denied, and this court

affirmed the denial in United States v. Glover , No. 91-5186, 1992 WL 95455

(10th Cir. Apr. 30, 1992). Defendant filed his second § 2255 motion on

October 25, 1994, and the district court denied the motion. This court reversed

the denial, holding that defendant received ineffective assistance of counsel

because his defense attorney failed to challenge his sentence on the government’s

lack of proof regarding whether the methamphetamine was D-methamphetamine

or L-methamphetamine.     United Stated v. Glover , 97 F.3d 1345, 1349-50 (10th

Cir. 1996). We remanded the case to the district court, recognizing that, on

remand, the district court might want to explore a possible procedural obstacle to

defendant’s motion in his failure to raise the ineffective assistance of counsel

claim in his first § 2255 motion.

      Upon remand, the district court ordered the parties to brief the procedural

issue and found that defendant’s second § 2255 motion was an abuse of the writ.


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Defendant appeals from that order. Finding no cause for defendant’s failure to

raise the issue in his first § 2255 motion, and finding that no fundamental

miscarriage of justice   would occur if defendant were not permitted to raise the

issue in his second motion, the district court dismissed the § 2255 motion for

abuse of the writ. In this context, “[w]e review the district court’s factual

findings for clear error and its legal conclusions de novo.”     Green v. Reynolds , 57

F.3d 956, 957 (10th Cir. 1995). We affirm.

       To excuse his procedural error in neglecting to include his ineffective

assistance of counsel argument in his first § 2255 motion, defendant must show

either cause for failing to raise the issue and prejudice resulting therefrom or

“that a fundamental miscarriage of justice would result from a failure to entertain

the claim.” United States v. Richards , 5 F.3d 1369, 1370 (10th Cir. 1993)

(quotation omitted). Defendant concedes that he did not raise the issue in his first

motion, but he argues that the line of judicial authority finding defense counsel

ineffective for failing to object to the government’s lack of proof at sentencing of

whether the methamphetamine is of the D or L isomer did not come out until after

he filed his first § 2255 motion. “The mere fact that others had not raised this

issue first is not sufficient cause. ‘[T]he question is not whether subsequent legal

developments have made counsel’s task easier, but whether at the time of the

default the claim was ‘available’ at all.’”    Id. at 1371 (quoting Smith v. Murray ,


                                              -3-
477 U.S. 527, 537 (1986)). As the district court found, defendant cannot argue

that the claim was unavailable to him at the time of his sentencing; this court held

that his defense counsel was ineffective for failing to raise the claim.      See Glover ,

97 F.3d at 1349-50.

       Neither can defendant show that a fundamental miscarriage of justice

would occur if he is not permitted to bring the claim in his successive motion.

Defendant’s fundamental miscarriage of justice claim boils down to a question of

whether defendant is actually innocent of the offense.        See Murray v. Carrier , 477

U.S. 478, 495-96 (1986) . Defendant is claiming only that, because of his

counsel’s failure to raise the D versus L issue, he was illegally sentenced based

on the stricter guidelines for D-methamphetamine without the government

meeting its burden of proof on the issue. A claim that a defendant in a noncapital

case should have received a lesser sentence, however, does not constitute a claim

that he is actually innocent of the offense or that he did not commit the crime.      See

Richards , 5 F.3d at 1371.

       Defendant has shown neither cause for failing to raise the ineffective

assistance of counsel in his first § 2255 motion, nor that a fundamental




                                             -4-
miscarriage of justice will occur if he is not permitted to present his claim at this

juncture. Therefore, we AFFIRM the district court’s dismissal of defendant’s

§ 2255 motion as an abuse of the writ.   1




                                                      Entered for the Court



                                                      Wesley E. Brown
                                                      Senior District Judge




1
       Defendant applied for a certificate of appealability in this case. Because
the § 2255 motion was filed before the effective date of the Antiterrorism and
Effective Death Penalty Act, the provisions of that act requiring a certificate of
appealability do not apply.   See United States v. Kunzman , 125 F.3d 1363, 1364
n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998).

                                             -5-
