                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0498n.06
                             Filed: July 17, 2006

                                             No. 04-1159

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR
TOBIAS VALENCIA,                                   )    WESTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



Before: BATCHELDER, GIBBONS, and COOK, Circuit Judges.
       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Tobias Valencia, a federal

prisoner convicted of conspiracy to possess with intent to distribute and to distribute 500 or more

grams of a mixture containing methamphetamine, appeals the district court’s denial of his motion

pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. There are three issues on

appeal: first, whether Valencia’s trial counsel was constitutionally ineffective for failing to

adequately investigate the methamphetamine involved in the drug transaction for which Valencia

was found guilty; second, whether Valencia’s trial counsel was constitutionally ineffective for

failing to request a lesser-included-offense instruction; and third, whether the district court erred in

denying Valencia’s § 2255 motion without holding an evidentiary hearing. For the following

reasons, we affirm the district court’s denial of Valencia’s motion.

                                                   1
                                                  I.

       The facts of the case are not disputed and were set forth by this court in its opinion affirming

Valencia’s conviction and sentence on direct appeal.

              In July of 2000, J. Isabel Sandoval Barajas contacted Tobias Valencia to
      arrange a visit to Valencia’s home in Chicago to collect $3,000.00 that Valencia owed
      Barajas from a land purchase in Mexico years earlier. Shortly after arranging the visit,
      Barajas was contacted by a man named Rafa about performing an “errand” during his
      visit with Valencia in Chicago. Barajas agreed to travel from Washington to Chicago
      for the sum of $2,000.00. On the day before he was to leave for Chicago, Rafa and
      Barajas met. Rafa took Barajas’s car for a number of hours. When Rafa returned, he
      brought Barajas to meet Armando Evangelista, who was waiting with Barajas’s car.
      Rafa told Barajas that Evangelista would be traveling with him to Chicago. Prior to
      leaving, Rafa advised Evangelista, but not Barajas, that there were drugs hidden in the
      gas tank of Barajas’s car. The following morning, Barajas and Evangelista left
      Washington and drove to Chicago. Upon arriving in Chicago, the men contacted
      Valencia.

             The following morning, July 14, 2000, the men traveled from Chicago to
      Lansing, Michigan in Valencia's truck and Barajas’s car. In Lansing, Barajas and
      Valencia delivered Barajas’s car to David James Kenney at his motorcycle shop.
      Approximately two hours later, Kenney returned Barajas’s car to Barajas and
      Valencia, and informed them that the methamphetamine shipment had been soaked
      in gasoline and significantly damaged. Barajas, Evangelista, and Valencia returned
      to Chicago. On July 16, 2000, a confidential informant notified DEA agents that
      Kenney was in possession of a large amount of methamphetamine.

             On July 17, 2000, Barajas, Evangelista, and Valencia returned to Lansing and
      discussed the problem with the drugs with Kenney. During this discussion, Kenney’s
      shop was under surveillance by DEA and FBI agents. Kenney explained that he
      wanted to remove the drugs from their packaging to dry them out. After some
      deliberation, the drugs were placed in the bed of a pickup truck at Kenney’s shop to
      dry.

              That night, after the three men left the shop, the confidential informant
      initiated a purchase of methamphetamine. While making the purchase, the informant
      saw seven packages of methamphetamine that Kenney told him were to be removed
      from the packaging to dry overnight. The informant made the purchase and left.

             The next morning, the three men traveled to Kenney’s residence but did not
      find him home. After waiting for some time, they decided to return to Chicago.
      Shortly after leaving Kenny’s residence, the trio was stopped by law enforcement


                                                 2
      agents and all three men were arrested. A search warrant was also executed on
      Kenney’s shop. In addition to finding several items indicating an intention to
      distribute drugs, agents confiscated six piles of dry methamphetamine located on a
      board in the bed of a pickup truck together having a weight of 1,278 grams, and
      another small bag of methamphetamine that was saturated with gasoline weighing 384
      grams. Including the methamphetamine purchased by the informant, the total weight
      of the confiscated drugs was 2,280 grams.

United States v. Valencia,, 55 F. App’x 264, 265-66 (6th Cir. 2003).

       Valencia, Barajas, and Evangelista were charged with one count of conspiracy to possess

with intent to distribute and to distribute 500 grams or more of methamphetamine mixture in

violation of 21 U.S.C. § 846. Barajas and Evangelista entered into plea agreements with the United

States. Following a jury trial, Valencia was convicted on the single count charged.

       At trial, Valencia objected to the proposed jury verdict form, which read as follows:

        1. As to the charge that the defendant, Tobias Valencia, was engaged in a
        conspiracy to distribute methamphetamine, we, the jury, unanimously find the
        defendant, Tobias Valencia:

        _____Not Guilty _____Guilty

        If your answer is “Not Guilty,” your foreperson should date and sign this verdict.

        If your answer is “Guilty,” you must proceed to question number 2.

        2. Do you unanimously find beyond a reasonable doubt that the defendant, Tobias
        Valencia, was involved with the following amount of controlled substances:

        500 grams or more of methamphetamine mixture: _____ No _____ Yes

Valencia requested that the verdict form include an interrogatory questioning whether the jury found

that the conspiracy involved less than 500 grams of methamphetamine mixture. The district court

rejected his request, finding that the proposed verdict form properly required the jury to find drug

quantity beyond a reasonable doubt and provided the jury the opportunity to find Valencia guilty

with respect to an amount less than 500 grams.


                                                 3
       Following his conviction, Valencia was sentenced to imprisonment for 188 months, five

years supervised release, a fine of $3,340 and a special assessment of $100. Valencia timely

appealed his sentence and conviction. This court affirmed in an unpublished opinion. Valencia, 55

F. App’x 264. The Supreme Court denied certiorari. 538 U.S. 1047 (2003.)

       Valencia, pro se, filed a § 2255 motion. His motion asserted three grounds for relief: first,

he was denied effective assistance of counsel; second, he was improperly denied a reduction in his

sentence for acceptance of responsibility; and third, his conviction and sentence violated Apprendi

v. New Jersey, 530 U.S. 466 (2000). The district court denied Valencia’s petition and denied

issuance of a certificate of appealability. Valencia filed a notice of appeal and this court granted

Valencia a certificate of appealability.

                                                 II.

       On appeal of the denial of his § 2255 motion, Valencia challenges only the district court’s

denial of his claim of ineffective assistance of counsel and its decision that an evidentiary hearing

was unwarranted with regard to this claim.1 This court reviews the district court’s denial of a § 2255

motion de novo. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). The district court’s

factual findings are reviewed for clear error. Turner v. United States, 183 F.3d 474, 476 (6th Cir.

1999). The district court’s decision not to hold an evidentiary hearing is reviewed for an abuse of

discretion. Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004).

       To establish ineffective assistance of counsel, a defendant must show that: (1) his trial

counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance exists if counsel’s

       1
       Thus, Valencia’s claims regarding reduction for acceptance of responsibility and violation
of Apprendi are abandoned. See Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004).

                                                  4
conduct “fell below an objective standard of reasonableness.” Id. at 688. There is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. With regard to prejudice, a defendant must show with “a reasonable

probability” that the result of the proceeding would have been different but for counsel’s errors. Id.

at 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. Counsel’s performance must have “so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

       Valencia first argues that trial counsel failed to thoroughly investigate the case because he

did not arrange for independent laboratory tests to be performed on the drugs at issue. At trial, the

government produced testimony from Fredrika Mary Laux, a forensic chemist with the Drug

Enforcement Administration. Laux testified that the government provided her with seven seized

bags of alleged drugs on which to perform testing. Six were similar in composition, while the

seventh was soaked in gasoline. The total weight of the six bags was 1,278 grams. The weight of

the gasoline-soaked seventh bag was 384.5 grams. Laux testified that testing performed on the bags

confirmed that both the six bags and the seventh bag contained methamphetamine.                 After

determining the relative purity of the bags, Laux concluded that the six bags contained 1,073 grams

of pure methamphetamine, while the gasoline-soaked bag contained 173 grams of pure

methamphetamine. Defense counsel only briefly cross-examined Laux, taking the opportunity to

clarify two points: first, the relative weights of the six bags together and the seventh bag

individually; and second, that the six bags did not appear to be affected by gasoline.

       On appeal, Valencia maintains that defense counsel should have hired an independent expert

to perform testing on the drugs, engaged in a more extensive cross-examination of Laux, and



                                                  5
produced a defense expert on the subject of the drugs. Although Valencia is equivocal on what

exactly such independent tests and testimony would have established, Valencia maintains that such

tests and testimony could have established two things: first, that the substance in question was

amphetamine, as opposed to methamphetamine; and second, that the dry bags and wet bag of drugs

were from different sources, which would allow a jury to conclude that Valencia only transported

the one wet bag. Valencia did not argue to the district court, however, that trial counsel was

ineffective for failing to test the drugs or further cross-examine Laux in order to determine if the

bags could have been from different sources. Rather, Valencia only argued that such conduct

constituted ineffective assistance because the substance in the bags was amphetamine, as opposed

to methamphetamine. In general, the well-established principle that appellate courts do not address

claims not properly presented to the district court extends to appeals from denials of habeas corpus

petitions, see Byrd v. Collins, 209 F.3d 486, 538-39 (6th Cir. 2000); Chandler v. Jones, 813 F.2d

773, 777 (6th Cir. 1987); and § 2255 motions, see Caldwell v. United States, 651 F.2d 429, 434 (6th

Cir. 1981). We note that Valencia, now represented by counsel, was proceeding pro se when he

filed his § 2255 motion and that English is not his first language. We therefore believe that this is

one of those “exceptional cases” in which the defendant may “extend the issue of ineffective

assistance of counsel, already raised below on [some] of his claims, to his [other] claims” on appeal.

See Weinberger v. United States, 268 F.3d 346, 352 (6th Cir. 2001). Nonetheless, neither of

Valencia’s arguments regarding the drugs at issue entitle him to relief.

       Although “strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable,” strategic choices “made after less than complete

investigation are reasonable precisely to the extent that reasonable professional judgments support



                                                  6
the limitations on investigation.” Strickland, 466 U.S. at 690-91. Defense counsel must therefore

“make reasonable investigations or [] make a reasonable decision that makes particular

investigations unnecessary.” Id. at 691. But these decisions do not occur in a vacuum. As the Court

said in Strickland, “In any ineffectiveness case, a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances . . . .” 466 U.S. at 691. Valencia is

therefore required to provide some evidence that trial counsel’s decision not to have the drugs tested

was unreasonable. Valencia’s speculative assertions that the drugs may have been amphetamine and

the bags may have been from different sources do not constitute such evidence. Moreover, Valencia

provides this court with no insight into trial counsel’s actual choice not to independently analyze the

drugs.2 In short, Valencia has failed to offer any basis on which to conclude that trial counsel’s

failure to test the drugs was unreasonable.

       Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992), on which Valencia primarily relies, does not

alter our conclusion. In Sims, this court held that the defendant’s trial counsel was constitutionally

ineffective for failing to perform independent forensic analysis on a piece of physical evidence. Id.

at 1581. The defendant in Sims was on trial for murdering his wife, but he maintained at trial that

his wife’s shooting occurred accidentally when he tried to wrest a gun from her. Id. at 1576. A

central issue in the case was whether the defendant’s wife was shot from a distance, as the State

maintained, or whether she was shot at close range when the defendant tried to take the gun from

her, as he maintained. This court held that defense counsel was constitutionally ineffective for



       2
        For example, Valencia does not claim that he told his trial counsel that the drugs were
amphetamine or were from different sources, or that he even raised the possibility to counsel that
the government’s own analysis was erroneous in some way. See Strickland, 466 U.S. at 691 (“The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions.”).

                                                  7
failing to examine a quilt, which contained three bullet holes, found on the bed where defendant’s

wife was shot. Id. at 1581. In the abstract, Sims supports Valencia’s argument that defense counsel

should generally test physical evidence involved in a crime. The differences between the cases are

critical, however. In Sims, “prior to trial [defense counsel] was in possession of an FBI report that

should have alerted him to the significance of the quilt for the defense.”3 Id. at 1580. This report

constituted evidence that counsel acted unreasonably in light of what he knew or should have

known. No similar evidence is presented in this case. Moreover, the defendant in Sims told his trial

counsel that the shooting was accidental, so the “FBI report presented the defense with a theory of

the case that squared fully with [the defendant’s] version of events.” Id. at 1577, 1580. There is no

similar allegation that Valencia told his trial counsel to test the drugs because they were not

methamphetamine or not from the same source. Based on the evidence in the record, there is simply

no indication that defense counsel had any reason to believe that the drugs were not

methamphetamine or that the drug bags were not from the same source. In short, we reject

Valencia’s claim of ineffective assistance based on a failure to independently test the drugs, call a

defense expert, or more extensively cross-examine Laux.

       Valencia next argues that defense counsel was constitutionally ineffective for failing to

request a lesser-included-offense instruction on the jury verdict form.4 Specifically, Valencia


       3
         The FBI had tested the quilt, and the relevant report indicated that gunpowder residue had
been found on the quilt. See Sims, 970 F.2d at 1580. Because defense counsel knew that the State
was going to call an expert to testify that the lack of powder marks on the victim indicated that she
was shot from a distance, defense counsel should reasonably have known that the powder marks on
the quilt were critical because the marks indicated that the quilt could have trapped the powder
residue even at close range. Id.
       4
        Here again, although Valencia did not make this precise argument to the district court, we
conclude that he may extend the issue of ineffective assistance of counsel to this clam because of
the unusual circumstances of this case.

                                                 8
maintains that conspiracy to possess with intent to distribute less than 500 grams of

methamphetamine mixture, see 21 U.S.C. § 841(b)(1)(B)(viii) (50 grams or more of

methamphetamine mixture), is a lesser-included offense of conspiracy to possess with intent to

distribute 500 grams or more of methamphetamine mixture, see id. § 841(b)(1)(A)(viii) (500 grams

or more of methamphetamine mixture). “A criminal defendant is entitled to an instruction on a

lesser-included-offense if: (1) a proper request is made; (2) the elements of the lesser offense are

identical to part of the elements of the greater offense; (3) the evidence would support a conviction

on the lesser offense; and (4) the proof on the element or elements differentiating the two crimes is

sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on

the lesser.” United States v. Colon, 268 F.3d 367, 373 (6th Cir. 2001); see also Fed. R. Crim. P.

31(c)(1) (“A defendant may be found guilty of . . . an offense necessarily included in the offense

charged”). A defendant will only be entitled to the instruction if he makes two showings: “(1) the

elements of the lesser offense are a subset of the elements of the charged offense; and (2) the

evidence would allow a rational jury to find the defendant guilty of the lesser offense but not guilty

of the charged offense.” Colon, 268 F.3d at 373. In contrast, no instruction is warranted where “the

lesser offense requires an element not required for the greater offense.” Id. at 374.

       “The Supreme Court has instructed that in making the determination of whether there is an

identity of elements of a lesser and greater offense for purposes of determining whether a

lesser-included offense instruction is appropriate, courts are to compare the statutory elements of

the offenses in question.” Id. at 375 (citing Schmuck v. United States, 489 U.S. 705, 716 (1989)).

Therefore, if we reviewed the merits of Valencia’s challenge, we would consider whether drug

quantity is an “element” of the offenses here in question, and whether § 841(b)(1)(A) and



                                                  9
§ 841(b)(1)(B) are separate offenses or merely penalty provisions of the same offense, 21

U.S.C. § 841(a). These are thorny issues5, and we need not resolve them here.

       Even if trial counsel’s failure to request a lesser-included-offense instruction constitutes

deficient performance under Strickland, this deficient performance failed to have the required

prejudicial effect on the proceedings. See Strickland, 466 U.S. at 697 (“If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.”). On direct appeal, Valencia challenged the district court’s decision to deny his request

for a jury interrogatory, which would have asked the jury whether it found that the conspiracy

involved less than 500 grams of methamphetamine mixture. Because the verdict form required the

jury to find that Valencia’s offense involved more than 500 grams, this court held, “The verdict form



       5
         This court has previously held “that section 841(b) sets forth penalty provisions only and
not separate ‘lesser included’ offenses.” United States v. Moreno, 899 F.2d 465, 473 (6th Cir.
1990); see also United States v. Clark, 928 F.2d 733, 736 (6th Cir. 1991) (“The quantity of
contraband possessed is not an element of the offense, but is pertinent only to sentencing.”); United
States v. Caldwell, 176 F.3d 898, 900 (6th Cir. 1999) (same).
        More recently, this court has stated that, in light of the Supreme Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), “the determination of drug quantity under § 841(b) must, when
it subjects the defendant to an enhanced sentence, be considered an element of the offense rather
than a sentencing factor.” United States v. Strayhorn, 250 F.3d 462, 468 (6th Cir. 2001) (citing
United States v. Ramirez, 242 F.3d 348, 351 (6th Cir. 2001) and United States v. Flowal, 234 F.3d
932, 938 (6th Cir. 2000)), all overruled on other grounds by United States v. Leachman, 309 F.3d
377, 381-83 (6th Cir. 2002); see also United States v. Darwich, 337 F.3d 645, 655 (6th Cir. 2003)
(“[E]ach provision of § 841(b) provides for a different criminal offense with separate elements
which all must be proved beyond a reasonable doubt when a defendant guilty of a [drug] conspiracy
is sentenced in excess of the default statutory maximum.”).
        Finally, a distinct line of cases, which reject claims by defendants that their original
indictments were subjected to unlawful variance or constructive amendment when the indictment
alleged greater quantities of drugs under § 841(b) than the jury found beyond a reasonable doubt,
have reasoned that the defendants were “merely convicted of a lesser-included offense and all the
elements of the former necessarily include those of the latter.” United States v. Martinez, 430 F.3d
317, 339-40 (6th Cir. 2005); see also United States v. Newton, 389 F.3d 631, 639 (6th Cir. 2004);
United States v. Solorio, 337 F.3d 580, 590-91 (6th Cir. 2003); United States v. Vazquez, 49 F.
App’x 550, 553 (6th Cir. 2002).

                                                  10
used by the district court accomplished precisely what Valencia sought to do through his proposed

additional interrogatory.” Valencia, 55 F. App’x at 267. This same reasoning applies to the claim

that Valencia would have benefitted from a lesser-included-offense instruction.

        The requirement that the lesser-included instruction be given “ensures that the jury will

accord the defendant the full benefit of the reasonable-doubt standard.” Beck v. Alabama, 447 U.S.

625, 634 (1980).         As the Supreme Court has explained, the requirement that a

lesser-included-offense instruction be given stems from the need to give the jury a “third option”

where it would otherwise be presented with an all-or-nothing choice. See Schad v. Arizona, 501

U.S. 624, 646-47 (1991) (examining cases). In this case, the jury had its “third option”: the jury

could have convicted Valencia of conspiracy to distribute methamphetamine but not found that the

amount was greater than 500 grams. Although Valencia argues that the evidence supported this

third option, the jury declined to choose it. On appeal, Valencia fails to articulate any meaningful

difference   between     the   interrogatory    he      actually   requested   and   the   hypothetical

lesser-included-offense instruction now at issue. Thus, for the same reasons that this court held that

no prejudice resulted from the district court’s refusal to include the interrogatory on the verdict form,

no prejudice resulted from counsel’s failure to request a lesser-included-offense instruction.

        Valencia’s final argument is that the district court was required to hold an evidentiary

hearing on the allegations in his § 2255 motion. A federal prisoner who files a motion under § 2255

challenging a federal conviction is entitled to a prompt hearing, unless the motion and the record of

the case conclusively show that the prisoner is not entitled to relief. Smith v. United States, 348 F.3d

545, 550 (6th Cir. 2003). Pursuant to Rule 4, Rules Governing § 2255 Proceedings, the hearing is

mandatory unless it “plainly appears from the motion, any attached exhibits, and the record of the



                                                   11
prior proceedings that the moving party is not entitled to relief,” in which case the motion must be

dismissed. “Where there is a factual dispute, the habeas court must hold an evidentiary hearing to

determine the truth of the petitioner’s claims.” Turner, 183 F.3d at 477. If the trial judge also hears

the collateral proceedings, the judge may rely on his recollections of the trial in ruling on the

collateral attack. Smith, 348 F.3d at 551.

        The district court did not abuse its discretion when it denied an evidentiary hearing with

regard to Valencia’s claim of ineffective assistance based on counsel’s failure to independently

investigate the drugs.6     Although Valencia stated in his petition that the drugs were not

methamphetamine, this claim was clearly refuted by the on-the-record, uncontradicted testimony of

Laux. As we have already noted with regard to this appeal, Valencia did not provide any specific

allegation that would permit a conclusion that trial counsel was ineffective for not having the drugs

independently tested. It is not enough for Valencia merely to “proclaim[] his innocence”; rather,

he must provide some basis “to indicate that his counsel’s performance was constitutionally infirm.”

Turner, 183 F.3d at 477. In short, although Valencia’s petition may dispute the facts found by the

jury, his arguments are entirely speculative and fail to create a factual issue regarding trial counsel’s

performance. His petition presents no issue requiring an evidentiary hearing.

                                                  III.

        For the foregoing reasons, the district court’s judgment is affirmed.




        6
         Valencia does not argue on appeal that an evidentiary hearing was required with regard to
his claim of ineffective assistance based on counsel’s failure to request a lesser-included-offense
instruction.

                                                   12
