                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-15667                   DEC 14, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                       ________________________               CLERK


               D. C. Docket Nos. 98-08045-CV-2-RBP-RRA
                            95-00091-CR-PT

LEROY STEVEN WOFFORD,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (December 14, 2006)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
       Leroy Steven Wofford, a federal prisoner, appearing pro se, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate. The district court

issued a certificate of appealability only as to whether it should hear further

evidence relating to the type of methamphetamine on which Wofford’s sentence

was based and the effectiveness of his counsel as to that issue.1 On appeal,

Wofford asserts that the district erred by failing to hold an evidentiary hearing on

his claim of ineffective assistance of counsel because his counsel was unprepared

and ignored crucial issues and evidence. He contends that his attorney failed to

argue that Wofford was responsible for L-type methamphetamine, as opposed to



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           Wofford raised numerous issues in his motion to vacate his sentence and in a
supplement: (1) whether his counsel was ineffective for failing to object to the government’s
failure to prove the type of methamphetamine involved in the conspiracy claim; (2) the district
court’s error in sentencing him for the wrong type of methamphetamine; (3) the failure of the
district court to suppress witness testimony; (4) the government’s improper vouching for
witnesses credibility during closing arguments; (5) whether he was sentenced in violation of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004); and (6) whether the district court lacked jurisdiction to try him because the indictment
failed to specify the amount of methamphetamine for which he should be held accountable.
         The district court granted Wofford a certificate of appealability (“COA”) without
specifying any issues. We remanded for clarification of the COA, and the district court issued
an order concluding that “the only issue warranting appeal is whether the district court should
hear further evidence relating to the type of methamphetamine that the sentence should have
been based upon and the effectiveness of defense counsel with regard thereto.” R1-1. It
explained that it “did not order an evidentiary hearing because the evidence appeared clear that
the defendant possessed with intent to distribute the ‘D-type’ methamphetamine.” Id. at n.1.
         After the issuance of our remand order and the district court’s COA, Wofford filed an
“objection” to our limited remand order. In his objection, he argued that he would be prejudiced
by the district court’s limitation of the issues on appeal. Because he addressed the issues
specified in the COA in his brief, he was not prejudiced. We thus overrule his objection.


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D-type methamphetamine, and did not challenge perjured testimony concerning the

quantities of the methamphetamine involved in the conspiracy. Wofford asserts

that the district court could not determine from the record whether his counsel was

ineffective.   We AFFIRM.

                                I. BACKGROUND

      Wofford was indicted for his involvement in a drug conspiracy from 1986

until 1995. During the trial, a co-conspirator, George Robert Booth, testified that

he transported methamphetamine and cocaine for Roy Mack West beginning in

1989 until he was caught in 1990 with 25 kilograms of cocaine and 50 gallons of

Phenyl2 Propanone (“P2P”), which is used to make methamphetamine. Exh. 187

at 158. He stated that he delivered methamphetamine to Wofford on two different

occasions. Id. at 174, 179. On the first occasion, Booth said that he delivered 20

pounds of methamphetamine to Wofford in late 1989 and was paid $10,000.00 for

hauling the drugs. Id. at 174-79. On the second occasion, Booth testified that he

delivered 13 pounds of methamphetamine and some marijuana to Wofford in

December 1989 and thought that he got paid about $10,000. Id. at 179-82.

      Another witness, Lloyd Shipley, testified that he had been in the drug

manufacturing business as early as 1981. Id. at 435. He stated that he had the

intent to manufacture methamphetamine but “never did get to make it” because he



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did not have the correct formula. Id. at 436. He said that he got into the drug

business with West in 1987, and continued to operate a large methamphetamine

laboratory in 1995 despite being blinded during a methamphetamine cooking

accident in December 1987. Id. at 438-39, 446, 453, 469. He said that he sold

Wofford “speed” about two or three times totaling about 12 pounds during 1994,

and delivered about 4 pounds of methamphetamine to Wofford in 1995. Id. at 457-

59, 462, 466.

       The jury found Wofford guilty of conspiracy to distribute and to possess

with intent to distribute marijuana, cocaine, and methamphetamine. The district

court limited the amount of methamphetamine attributed to Wofford to that which

the evidence showed was delivered directly to him, and sentenced him to a term of

284 months in prison. Exh. 188 at 5-8, 10-11, 14. He appealed,2 and we affirmed

his conviction and sentence. United States v. Wofford, No. 96-6413 (11 th Cir. Aug.

22, 1997).

       In his motion to vacate, Wofford argued that the trial testimony regarding

the payment to the courier did not support a finding that D-methamphetamine was

involved because the courier was paid an uncertain sum to transport 30 to 35


       2
         On direct appeal, Wofford raised three issues: (1) he had withdrawn from the
conspiracy; (2) there was a material variance in the evidence presented at trial which showed
multiple conspiracies, and the indictment which charged a single conspiracy; and (3) the district
court abused its discretion in declining to instruct the jury regarding the multiple conspiracies.

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pounds of methamphetamine and an unknown quantity of marijuana, and there was

no testimony regarding the street value of the marijuana.3 He maintained that the

majority of the testimony showed that the methamphetamine resulted from botched

manufacturing attempts, and resulted in the production of L-methamphetamine.

He also requested an evidentiary hearing.

       Although a defendant is generally barred from presenting challenges to his

conviction or sentence not raised on direct appeal, he may do so if he establishes

(1) cause for not timely raising the claim and actual prejudice from the alleged

error or (2) actual innocence. Lynn v. United States, 365 F.3d 1225, 1234 (11th

Cir.) (per curiam), cert. denied, 543 U.S. 891, 125 S. Ct. 167 (2004). A petitioner

can establish cause by showing that his attorney’s performance “fell below an

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,

688, 104 S. Ct. 2052, 2064 (1984).

       In an appeal from the denial of a § 2255 motion, we review the district

court’s determination of the legal issues de novo and factual issues for clear error.

Lynn, 365 F.3d at 1232. We review the district court’s denial of an evidentiary

       3
          Although the presentence investigation is not included in the record on appeal, it
appears that the parties concede that the Sentencing Guidelines applied to Wofford were those in
effect prior to 1 November 1995. The Guidelines were amended in 1995 to eliminate the
distinction between D- and L-type methamphetamine. See U.S.S.G. App. C., Amend. 518,
U.S.S.G. § 2D1.1 (Nov. 1995). Prior to this amendment, the trafficking of D-methamphetamine
was punished more severely than the trafficking of L-methamphetamine. See U.S.S.G. § 2D1.1
(Nov. 1994).

                                               5
hearing for abuse of discretion. Breedlove v. Moore, 279 F.3d 952, 959 (11th Cir.

2002). It is not necessary for a district court to hold an evidentiary hearing for a

claim of ineffective assistance of counsel “if it can be conclusively determined

from the record that the petitioner was not denied effective assistance of counsel.”

Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999) (citation omitted). A

petitioner seeking to show ineffective assistance based on his attorney’s failure to

object to the court’s use of a guideline for cases involving D-type

methamphetamine must allege that the trafficked methamphetamine was L- and not

D-type. Reece v. United States, 119 F.3d 1462, 1165 (11th Cir. 1997). In such a

case, the petitioner cannot establish prejudice unless “he represents that, given an

evidentiary hearing, he can establish that the methamphetamine he possessed and

distributed was the L-type.” Id. at 1468.

      In Reece, we explained that “D-methamphetamine [is] the substance having

the active physiological effects characteristic of methamphetamine” and that, in

contrast, L-methamphetamine is “an inert form of methamphetamine with little or

not physiological effects” and “utterly worthless.” Id. at 1469 (brackets and

quotations omitted). Considering the evidence before the district court that the

defendant had “distributed a form of methamphetamine that had street value,”

“basic information about the drug,” and “common sense,” we concluded that “there



                                            6
could have been no dispute . . . that the methamphetamine [the defendant]

possessed and distributed was the D-type” because to do otherwise would “require

us to find that [the defendant] made a conscious decision to distribute a worthless

substance.” Id. at 1470.

      The evidence in this case shows that the methamphetamine had “street

value.” Booth was paid a substantial amount of money each time that he

transported the methamphetamine and delivered it to Wofford. It defies common

sense that he would have been paid several thousand dollars to transport a

worthless substance such as L-methamphetamine. Further, although Wofford

alleges that he could prove that L-methamphetamine was involved in the

conspiracy, the only evidence he references is Shipley’s testimony that he was

unable to manufacture of methamphetamine in 1981. That date, however, predates

the conspiracy in this case and specifically does not involve the methamphetamine

that was delivered to Wofford in 1989. Wofford has not alleged any additional

evidence or testimony to show that L-methamphetamine was produced.

      Wofford thus fails to sufficiently allege prejudice stemming from his

attorney’s performance. Because there was no legitimate dispute regarding the

type of methamphetamine involved, the district court was able to ascertain from

the record that counsel was not ineffective, and there was no need for an



                                          7
evidentiary hearing.

                               III. CONCLUSION

      The record indicates no dispute as to which form of methamphetamine was

involved in this case. Wofford therefore cannot show that he was prejudiced by his

counsel’s performance, and the district court was not required to hold an

evidentiary hearing. The district court’s denial of his motion to vacate his

conviction and sentence is

      AFFIRMED.




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