                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 9 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 97-6254
                                                     (D.C. Nos. 88-CR-225
    CLIFFORD WESLEY COX;                                       &
    LYNDELL LLOYD COX,                                   CIV-96-1627
                                                               &
                Defendants-Appellants.                   CIV-96-1628)
                                                         (W.D. Okla.)




                            ORDER AND JUDGMENT            *




Before PORFILIO , BARRETT , and HENRY , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

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      This order and judgment is not binding precedent, except under the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.
       Defendants Clifford Wesley Cox and Lyndell L. Cox appeal the district

court’s denial of their joint 28 U.S.C. § 2255 motion to vacate, set aside, or

correct their sentences for conspiracy to distribute methamphetamine. We have

previously granted defendants’ application for a certificate of appealability,   see

28 U.S.C. § 2253(c), and we now reverse and remand the case for further

proceedings.


                                       Background

       Defendants pled guilty in 1988, and were sentenced in 1989, to conspiracy

to distribute methamphetamine in violation of 21 U.S.C. § 846 and unlawful

manufacture of a destructive device in violation of 26 U.S.C. § 5861. The district

court sentenced defendants Clifford Cox to nineteen years, seven months, and

Lyndell Cox to twenty years’ imprisonment, on the § 846 methamphetamine

count, based upon forty-eight pounds of methamphetamine. Their sentences were

affirmed on direct appeal.    See United States v. Cox , Nos. 89-6087 and 89-6088

(10th Cir. Mar. 28, 1990) (unpublished disposition).

       The government seized methamphetamine and phenyl-2-propanone (p2p),

another controlled substance, from defendants’ premises. The government’s

testing of the methamphetamine did not indicate the type of methamphetamine

involved, nor did the government present any evidence at sentencing

demonstrating the type of methamphetamine possessed by defendants. Under

                                             -2-
the sentencing guidelines applicable to defendants’ offenses, sentencing for

d-methamphetamine was substantially more severe than that for

l-methamphetamine, and the guidelines did not address a substance referred

to as d,l-methamphetamine.   1
                                 Defendants’ counsel failed to raise this issue at

sentencing or on direct appeal.




1
      Expert testimony in United States v. Cook, 891 F. Supp. 572, 573 (D. Kan.
1995), aff’d, No. 95-3233, 1996 WL 547332 (10th Cir. Sept. 26, 1996)
(unpublished disposition) explained:

      Both d and l are methamphetamines, but they stay molecularly
      different. They have all the same properties, except that
      d-methamphetamine bends polarized light to the right and
      l-methamphetamine bends polarized light to the left. These
      properties cause major differences in the effects produced by the
      substances. While l-methamphetamine is a bronchial dilator,
      d-methamphetamine is a central nervous system stimulant. Thus, the
      pharmacological differences in the two methamphetamines [are]
      significant.” Id.

       At the time of defendants’ sentencing, the applicable sentencing guidelines
treated one gram of methamphetamine (type unspecified) as equivalent to 2.0
grams of cocaine or 0.4 grams of heroin, but treated one gram of
l-methamphetamine as equivalent to only 0.2 grams of cocaine or .04 grams of
heroin. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.),
§ 2D1.1, Drug Equivalency Tables (Oct. 1987). As of November 1, 1995, the
distinction between methamphetamine types has been eliminated and
l-methamphetamine is now treated the same as d-methamphetamine under the
Guidelines. See United States v. Glover, 97 F.3d 1345, 1347 n. 2 (10th Cir.
1996). However, because defendants were sentenced in 1989, the distinction
between d and l methamphetamine applies in this case.


                                           -3-
      In their § 2255 motion, defendants assert that their counsel’s failure to

require the government to prove the type of methamphetamine involved in the

conspiracy constituted ineffective assistance of counsel and deprived them of

their due process rights. Defendants assert that the methamphetamine seized was

l-methamphetamine, and that it could not have been d-methamphetamine because

l-ephedrine, which they claim is a necessary precursor chemical to the

manufacture of d-methamphetamine, was not found at their premises.

      The government does not claim that the drug involved was

d-methamphetamine. However, it argues that sufficient evidence was presented at

the sentencing hearing for the district court in the § 2255 proceeding to determine

that the type of methamphetamine involved in the conspiracy was

d,l-methamphetamine. The government points to expert testimony at the

sentencing hearing that p2p was seized from defendants’ premises and that p2p

is used to produce methamphetamine. Although the testimony at sentencing did

not indicate what type of methamphetamine p2p produces, the government asserts

that the p2p method produces d,l-methamphetamine. Because p2p was seized

from defendants, the government argues the methamphetamine involved must

have been d,l-methamphetamine. The government argues d,l-methamphetamine

should be treated the same as d-methamphetamine for sentencing purposes, citing

United States v. Decker , 55 F.3d 1509 (10th Cir. 1995).


                                         -4-
      Defendants respond that, while it is possible to manufacture

d,l-methamphetamine from p2p, they were prepared to present expert testimony

that it is equally possible to manufacture l-methamphetamine from p2p. They also

point out, correctly, that there is no evidence in the record that p2p was found in

the methamphetamine seized. They argue, therefore, that the mere seizure of p2p

from their premises is insufficient circumstantial evidence from which to

conclude the methamphetamine involved in their offenses was

d,l-methamphetamine. They requested the district court to hold an evidentiary

hearing to present expert testimony and evidence in support of their claims.

      The district court found that even if defendants’ counsel was incompetent

in failing to object to the government’s failure to prove the type of

methamphetamine, defendants failed to establish that they were prejudiced by

this alleged incompetence because the methamphetamine involved was “at least

a combination of d and l-methamphetamine.” Rec., doc. 235 at 3.         See Strickland

v. Washington , 466 U.S. 668, 686-88 (1984) (requiring objectively deficient

performance serious enough to undermine the adversarial process and prejudice

severe enough to deprive defendant of a fair trial in order to establish an

ineffective assistance of counsel claim). The district court stated that “the

evidence shows that defendants utilized the p2p method, the method which

produces d,l methamphetamine.” Rec., doc. 235 at 3-4. The court did not address


                                         -5-
defendants’ contention that the methamphetamine involved was

l-methamphetamine, that no p2p was found in the methamphetamine seized or that

p2p can also produce l-methamphetamine. The district court did not grant

defendants’ request for an evidentiary hearing to resolve these, or any other

factual issues raised in the § 2255 motion. The district court held that

defendants’ prior sentence was proper and denied their § 2255 petition.


                                     Discussion

                                          I.

      Defendants contend the district court erred in denying their request for an

evidentiary hearing and in denying their §2255 motion, arguing the government

failed to present sufficient evidence that the type of methamphetamine involved in

their offenses was d-methamphetamine instead of the less potent

l-methamphetamine. We agree.

      “A claim of ineffective assistance of counsel presents a mixed question of

law and fact which we review de novo.”    Brewer v. Reynolds , 51 F.3d 1519, 1523

(10th Cir. 1995). We accept the district court’s factual finding that a specific

isomer of methamphetamine was involved in criminal activity unless clearly

erroneous. See id. ; United States v. Lande , 40 F.3d 329, 330 (10th Cir. 1994).

The government bears the “burden of proof and production to show by a

preponderance of the evidence the type of methamphetamine involved” in the

                                         -6-
offense of conviction.    United States v. Glover , 97 F.3d 1345, 1347 (10th Cir.

1996) (citation omitted).

       In Glover , we held that a defense counsel’s failure to require the

government to meet its burden of proof as to the type of methamphetamine

involved in a drug offense constitutes ineffective assistance of counsel.      See id. at

1349-50. We also held that a defendant’s guilty plea did not obviate the need for

substance-specific proof at sentencing.     Id. at 1347. We further held that, because

ineffective assistance claims are properly left to collateral proceedings,

a defendant’s failure to raise the sentencing challenge on appeal does not prevent

him from raising it in his first § 2255 motion.     Id. at 1349.

       In Glover , the district court had never considered the type of

methamphetamine involved in the offenses at issue, either at sentencing or in

the § 2255 proceedings.     See id. at 1350. Accordingly, we remanded the action to

the district court to determine, if it could, the type of methamphetamine involved

in the defendant’s offenses, with the instruction that if the government could not

establish the substance was d-methamphetamine as required by the old sentencing

guidelines, defense counsel’s failure to challenge defendants’ sentence in this

regard would satisfy the performance and prejudice elements of         Strickland and,

therefore, constitute ineffective assistance of counsel.     Id.




                                             -7-
      Here, the government concedes the only evidence before the district court

was the evidence previously presented at sentencing that p2p had been seized

from defendants’ premises and that p2p is used in the manufacture of

methamphetamine. The government asserts that the p2p method produces only

d,l-methamphetamine. It further asserts it was not required to present any further

evidence because, it contends, “[a]ccording to   United States v. Decker , 55 F.3d

1509 (10th Cir. 1995) and   United States v. Cook , 891 F. Supp. 572 (D. Kan.

1995), it is already established that the P-2-P method produces only

d,l-methamphetamine.” Appellee’s Br. at 4-5.

      The government misstates the factual finding in    Decker . In Decker , the

applicable sentencing guidelines referred to “methamphetamine (actual)” for

purposes of determining the weight of the methamphetamine involved in the

offense. 2 55 F.3d at 1510, 1511 n.3. Based on the district court’s underlying

factual conclusion that d,l-methamphetamine contains d-methamphetamine and

l-methamphetamine, and that l-methamphetamine is an isomer of

d-methamphetamine, we held that d,l-methamphetamine should be treated as

“methamphetamine (actual)” because the sentencing guidelines require the

sentencing court to add the weight of any isomer of d-methamphetamine to the


2
      The sentencing guidelines applicable to this case did not include a
reference to “methamphetamine (pure),” or as later amended, to methamphetamine
(actual).

                                           -8-
weight of d-methamphetamine.     See id. at 1512-13; U.S.S.G. § 2D1.1 (c),

comment. n. 5 (in calculating the weight of any given controlled substance,

include “all salts, isomers and all salts of isomers”). We explained the underlying

factual conclusion that d,l-methamphetamine contains d-methamphetamine and

l-methamphetamine:

      Here, the government expert explained, and defense counsel
      acknowledged, that methamphetamine may be manufactured through
      two distinct methods: the 1-ephedrine method, which produces
      d-methamphetamine, and the P2P method, which produces
      d,1-methamphetamine . Defendant here used the P2P method, and
      thereby produced a single substance that was not merely a “mixture”
      of d-methamphetamine and 1-methamphetamine. On this record, the
      district court correctly understood that the methamphetamine
      molecule exists in different isomeric forms (d-methamphetamine
      being the ‘right-handed’ isomer of its ‘left-handed’ mirror image,
      l-methamphetamine) and that d,l-methamphetamine is a single
      substance composed of exactly 50% of each of the two isomers.


Id. 55 F.3d at 1512 (emphasis added) (footnote omitted).

      Decker did contain the factual statement that p2p produces

d,l-methamphetamine. However, contrary to the government’s assertion, there

is no finding in Decker that p2p produces only d,l-methamphetamine. This

distinction is, of course, critical, because the defendants assert they can present

evidence that p2p also produces l-methamphetamine.

      The government also fails to recognize that we based our factual

conclusions in Decker about the characteristics of d,l-methamphetamine and the


                                          -9-
use of p2p in the manufacture of d,l-methamphetamine on the        testimony before

the district court of the government’s expert witness, which the defendant in

Decker did not dispute.    See id. at 1512. Thus, we never held, as a matter of

precedent-creating law, that p2p produces d,l-methamphetamine.

       The government’s reliance on      Cook , 891 F. Supp. 572, is equally

misplaced. The district court in    Cook did find that “clandestine laboratories used

phenyl-2-propanone (p2p) as the primary precursor to produce

dl-methamphetamine [and] all methods using p2p to produce methamphetamine

resulted in the dl-methamphetamine mixture.”        Id. at 573. But Cook , like Decker ,

based its conclusions on expert testimony after conducting an evidentiary hearing;

indeed, the case was before the district court on remand from this court with

instructions to hold just such an evidentiary hearing.    Id.

       Here, in contrast, no evidence was presented with respect to the chemical

nature of d,l-methamphetamine, or the use of p2p in the production of any

particular type of methamphetamine, and the defendants dispute the government’s

unsupported assertion that p2p produces only d,l-methamphetamine. It is also a

noteworthy distinction that it was undisputed in     Decker and Cook that the

methamphetamine involved was d,l-methamphetamine, whereas in this case, the

purpose of the inquiry is to determine what type of methamphetamine was

involved. Because different issues are at stake, different questioning and


                                            -10-
cross-examination may lead to different factual conclusions than those reached in

Decker and Cook .

       The government’s argument that it is not required to put on any evidence

demonstrating that p2p produces only d,l-methamphetamine because other courts

have reached factual conclusions about the use of p2p in effect requests this court

and the district court to take judicial notice of a fact established in an unrelated

proceeding, not subject to cross-examination by the defendants. “Judicial notice

is an adjudicative device that alleviates the parties’ evidentiary duties at trial,

serving as ‘a substitute for the conventional method of taking evidence to

establish facts.’”   York v. AT&T , 95 F.3d 948, 958 (10th Cir. 1996) (citing    Grand

Opera Co. v. Twentieth Century-Fox Film Corp.       , 235 F.2d 303, 307 (7th Cir.

1956)). Because judicial notice replaces the evidentiary procedure that would

otherwise be necessary to establish adjudicative facts, courts can take notice

without formal proof only where the fact in question is “one not subject

to reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned.”

Fed. R. Evid. 201(b). The government has not yet demonstrated that its assertion

that the p2p method produces only d,l-methamphetamine meets the standards for

taking judicial notice.   See York , 95 F.3d at 958 (judicial notice is appropriate


                                           -11-
where a matter is verifiable with certainty);      United States v. Wessels , 12 F.3d

746, 754 (8th Cir. 1993) (district court is not entitled to take judicial notice of

its judicial experience to determine type of methamphetamine involved in

defendant’s offense for sentencing purposes).

       Moreover, in response to a § 2255 motion, a district court “must hold an

evidentiary hearing on the prisoner’s claims ‘[u]nless the motion and files and

records of the case conclusively show that the prisoner is entitled to no relief.’”

United States v. Galloway , 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995) (quoting

§ 2255). Our review of the record indicates that it did not conclusively show that

defendants were entitled to no relief. The record lacked expert testimony

regarding the characteristics of d,l-methamphetamine, the use of p2p in the

manufacture of d-methamphetamine or d,l-methamphetamine, or defendants’

claim that it is equally possible to produce l-methamphetamine using the p2p

method.

       Circumstantial evidence may be sufficient to determine the type of

methamphetamine involved.        See Lande , 40 F.3d at 331 (relying on circumstantial

evidence to uphold finding that drug involved was d-methamphetamine).

However, “‘[t]here must be proof . . . to justify the added deprivation of liberty

that follows the scoring of the drug as D-methamphetamine.’”          United States v.

Deninno , 29 F.3d 572, 580 (10th Cir. 1994) (quoting        United States v. Patrick , 983


                                            -12-
F.2d 206, 209 (11th Cir. 1993)). The evidence in the record fails to show any link

between the presence of p2p and d-methamphetamine or d,l-methamphetamine.

Without more, we cannot conclude that the government satisfied its burden of

proving the type of methamphetamine used in the offense.

                                            II.

       Defendants also contend that even if the substance was

d,l-methamphetamine, d,l-methamphetamine should not be treated the same as

d-methamphetamine for sentencing purposes. We have held, as a matter of law,

that, “if the substance or mixture involved in the offense contained any detectable

amount of D-methamphetamine, the defendant may be sentenced at the higher

[d-isomer] level.”   Glover , 97 F.2d at 1350 n. 5 (citing   Decker , 55 F.3d 1509).

Defendants challenge the underlying scientific conclusions in       Decker , 55 F.3d at

1512, that d,l-methamphetamine contains a detectable amount of

d-methamphetamine. We do not address this issue, as it is premature given our

conclusion that there is presently insufficient evidence to conclude that the

methamphetamine involved in defendants’ offenses was d,l-methamphetamine.

However, we note that the conclusion in      Decker that d,l methamphetamine

contains detectable d-methamphetamine was a factual, rather than a legal

conclusion, and was based on the undisputed factual record in that case.       See 55

F.3d at 1512. On remand, if the district court determines the substance involved


                                            -13-
in the offense was d,l methamphetamine, it should also resolve the factual

question of whether d,l methamphetamine contains detectable

d-methamphetamine.

      The judgment of the United States District Court for the Western District of

Oklahoma denying defendants relief under 28 U.S.C. § 2255 is REVERSED and

the case is REMANDED for further proceedings consistent with this order and

judgment.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




                                       -14-
