                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                                FILED
                               ________________________                U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                           AUGUST 29, 2000
                                      No. 97-8958
                                                                          THOMAS K. KAHN
                             ________________________                          CLERK
                         D. C. Docket No. 97-00041-3-CV-RLV


CHARLES LARRY JONES,
                                                                         Petitioner-Appellant,

                                             versus

UNITED STATES OF AMERICA,
                                                                        Respondent-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                  (August 29, 2000)


Before TJOFLAT, WILSON and FLETCHER*,Circuit Judges.

WILSON, Circuit Judge:

       Charles Larry Jones, a federal prisoner convicted on drug charges, appeals


______________
*Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.

the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. As a threshold matter, we rule that we will expand Jones’s certificate of

appealability (COA) to include issues beyond those certified by the district court,

especially when, as here, we have received a specific request directing us to the

particular issue the petitioner wishes to appeal. Because Jones has shown that his

counsel rendered ineffective assistance by failing to move for suppression of

evidence and failing to object to a general sentence, we remand for further

proceedings to determine whether his counsel’s ineffectiveness deprived Jones of a

fair trial, and for resentencing if necessary.

                                     BACKGROUND

The Underlying Criminal Case

      On July 14, 1988, the government obtained an investigative warrant to tap

Jones’s phone. Thereafter, the government intercepted and taped conversations

between Jones and others until August 18, 1988.1 Acting on information from the

intercepted conversations, the government arrested Jones and several other alleged

conspirators on August 18, 1988. Nothing in the trial court record shows that the

tapes from the tapped phone conversations were sealed pursuant to a written

sealing order. However, it appears that on September 19, 1988, a judge orally




        1
         The warrant’s expiration date, after being extended, was August 23, 1988.

                                              2
granted a request to seal the tapes.2 This thirty-one-day delay became significant

in light of a development in Supreme Court precedent occurring while Jones’s case

was pending.3

       This development pertained to 18 U.S.C. § 2518(8)(a)’s requirement that

wiretap tapes be sealed “immediately” upon expiration of the order authorizing the

wiretap. When Jones was arrested, the law of this circuit was that a court would

not grant a motion to suppress based on a delay in sealing wiretap evidence, unless

the defendant could show prejudice or that the integrity of the recordings was

disturbed.4 On October 10, 1989, the Supreme Court granted certiorari to resolve

an inter-circuit conflict regarding whether this “prejudice” requirement was

appropriate.5 Over one month after the grant of certiorari, Jones’s counsel moved

to suppress the wiretap evidence. The motion mentioned neither the delay in



        2
          A transcript of proceedings in the Superior Court for Cobb County, Georgia shows that
Judge P. Harris Hines received the tapes and signed a receipt on the back of the investigative
warrant stating “Receipt of black, rectangular, metal box, containing 21 cassettee (sic) tapes
hereby acknowledged. This the 19th day of Sept., 1988.”
        3
          See 18 U.S.C. § 2518(8)(a) (requiring sealing of evidence tapes “immediately” upon
expiration of order authorizing wiretap).
        4
          See United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977); Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding precedent all
cases decided in the 5th Circuit prior to the close of business on September 30, 1981).
        5
        See United States v. Ojeda Rios, 493 U.S. 889 (Oct. 10, 1989) (granting certiorari to
review United States v. Ojeda Rios, 875 F.2d 17 (2d Cir. 1989)).

                                               3
sealing the tapes nor the grant of certiorari.6 The magistrate judge recommended

denying the motion to suppress.

       The tapes were entered into evidence and played to the jury at trial. The jury

convicted Jones on four counts: conspiring to make and distribute

methamphetamine, manufacturing a precursor of methamphetamine called phenyl-

2-propanone, and two counts of attempting to make methamphetamine. The

district court imposed a general sentence of 360 months’ imprisonment on all four

counts. Jones’s counsel did not object to the general nature of the sentence.

       Jones’s counsel filed a notice of appeal on April 30, 1990 – the same day the

Supreme Court issued its opinion in United States v. Ojeda Rios.7 The record does

not reflect that Jones’s counsel raised on appeal the change in law regarding

suppression of wiretap evidence. This court affirmed Jones’s conviction without

mentioning the delay in sealing the wiretap evidence. See United States v. Jones,

940 F.2d 673 (1991), cert. denied, sub nom. Newsome v. United States, 502 U.S.

1076 (1992).

The § 2255 Proceedings


        6
          A memorandum in support of the suppression motion, filed two months after the grant
of certiorari, likewise made no mention of the sealing delay.
        7
         See United States v. Ojeda Rios, 495 U.S. 257 (1990) (ruling that defendant need not
show prejudice to obtain suppression; government could not use wiretap evidence unless it could
show either prompt sealing of tapes or a reasonable excuse for not doing so).

                                               4
      Jones moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence. Among the grounds for Jones’s motion were that his attorney

ineffectively failed to (1) move to suppress wiretap evidence; (2) object to an

unlawful general sentence; and (3) object to Jones’s sentence being enhanced

based on a type of methamphetamine for which there was no proof Jones had

made, had attempted to make, or had conspired to manufacture. The district court

denied Jones’s § 2255 motion. Jones appealed. The district court certified only

two issues for appeal:

      Whether the defendant was deprived of the effective assistance of
      counsel by (1) his attorney’s failure to require proof as to the kind of
      methamphetamine for which the defendant was to be sentenced and
      (2) his attorney’s failure to object to the general sentence imposed by
      the court.

Jones then asked this court to expand the COA to cover the wiretap issue.

                                   DISCUSSION

Certificate of Appealability (COA)

      As a threshold matter, we must resolve whether we will expand our review

beyond the two issues certified for appeal by the district court. Jones appealed

from the denial of his § 2255 motion on August 27, 1997. His appeal is therefore

governed by the COA requirements of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). See Slack v. McDaniel, __ U.S. __, 120 S. Ct.


                                          5
1595, 1600 (2000) (when appeal is initiated after April 24, 1996, AEDPA’s

appellate provisions apply).

      Under the AEDPA, a petitioner must obtain a COA before he can appeal the

denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). The COA must

indicate specific issues for which the appellant “has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see 28 U.S.C. §

2253(c)(3). Our review is limited to the issues specified in the COA. See Murray

v. United States, 145 F.3d 1249, 1250 (11th Cir. 1998). Therefore, unless Jones

succeeds in expanding the district court’s COA, we will not consider Jones’s

uncertified appellate claim that he was deprived of the effective assistance of

counsel with respect to the suppression of wiretap evidence.

      The COA process begins in the district court when the prisoner files either a

notice of appeal or a request for a COA. See Fed. R. App. P. 22(b); 11th Cir. R.

22-1; Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). If the

district court declines to issue a COA, this court can issue one pursuant to Fed. R.

App. P. 22(b)(2). Thus, “[u]nder the plain language of the rule, an applicant for the

writ gets two bites at the appeal certificate apple: one before the district judge, and

if that one is unsuccessful, he gets a second one before a circuit judge.” Hunter v.

United States, 101 F.3d 1565, 1575 (11th Cir. 1996) (en banc), partially overruled


                                           6
on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997). An appellant can seek

this “second bite” by expressly requesting this court to issue a COA, or by filing a

notice of appeal. See Fed. R. App. P. 22(b)(2).

       Therefore, the rules provide that a bare notice of appeal can serve as a

request for us to revisit a district court’s complete refusal to issue a COA. But the

rules do not expressly cover the situation where the district court issues not a total

denial, but a partial denial, by granting a COA on less than all the issues the

petitioner wishes to appeal. Does a bare notice of appeal suffice as a request to

broaden the scope of the certificate?

       The circuits are divided on whether an appellant seeking to expand a COA

may do so simply by filing a notice of appeal,8 or whether he or she must request a

broader COA by presenting the uncertified issue to the circuit court’s attention

explicitly.9 The government argues that the Eleventh Circuit falls in the latter


         8
           See Ross v. Ward, 165 F.3d 793, 797, 802 (10th Cir.) cert. denied sub nom. Ross v.
Gibson, ___ U.S. ___, 120 S. Ct. 208 (1999) (considering request to broaden certificate when
petitioner requested in his brief that COA be expanded, but ultimately ruling that petitioner had
not made “substantial showing” of denial of constitutional right on uncertified issues); Kincade
v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997) (“ By filing a notice of appeal, Kincade filed an
informal request with this Court to review the district court’s denial as to his remaining claims.);
Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997) (when district court granted limited
certificate, notice of appeal “in effect” asked circuit court to expand COA).
         9
           See Bui v. Dipaolo, 170 F.3d 232, 237 (1st Cir. 1999) (“[W]e will not treat an
inexplicit notice of appeal, without more, as an invitation to review the district court’s denial of
certification with regard to the petitioner’s remaining claims.”); United States v. Kimler, 150
F.3d 429, 430 (5th Cir. 1998) (requiring express request to expand COA and ruling that notice of

                                                 7
category, citing Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999), petition for

cert. filed, __U.S.L.W. __ (U.S. June 12, 2000) (No. 99-10113). There we

suggested that AEDPA petitioners could expand a COA only by filing a request

with this court before briefing:

       An application to expand the certificate must be filed promptly, well
       before the opening brief is done. Arguments in a brief addressing
       issues not covered in the certificate, including any expansion granted
       by the court of appeals, will not be considered as a timely application
       for expansion of the certificate; those issues simply will not be
       reviewed.

Id. at 1332. But because Tomkins involved pre-AEDPA law, its statements

regarding AEDPA procedure are dicta.

       The “explicit request” requirement for expanding a COA has its pros and

cons. It furthers the usefulness of the COA by directing the parties’ attention at an

early stage of the proceedings to the vital issues. On the other hand, an appellant

who receives a partial COA can be actually worse off than one whose application

for a COA is denied in full by the district court; when a COA application is totally

appeal was not a constructive request to expand certificate to cover uncertified issues) ; cf.
Hunter v. Bowersox, 172 F.3d 1016, 1019 (8th Cir. 1999) (appellant applied for expanded
certificate; circuit court expanded certificate without discussion), cert. denied, __U.S.__, 120 S.
Ct. 987 (2000). In the Ninth Circuit, a petitioner seeking to broaden the scope of appealable
issues must file a “motion for broader certification” within 35 days after the district court issues
a partial COA. See 9th Cir. R. 22-1(d); United States v. Zuno-Arce, 209 F.3d 1095, 1099-100
(9th Cir. 2000) (citing local rule and quoting Advisory Committee Note that “‘if a party wishes
to ask the merits panel to broaden the scope of the appeal beyond what was allowed by a motions
panel of this court, such a motion . . . may be filed in the court of appeals promptly after the
completion of briefing.’”).

                                                 8
denied, we treat the notice of appeal as an application for this court to issue a COA

and consider de novo whether to grant one. Cf. Fed. R. App. P. 22(b)(2); Hunter,

101 F.3d at 1575.

      At any rate, we need not decide the issue today, for Jones has satisfied the

more stringent standard by presenting this court with an explicit request to broaden

his COA. He did so by moving in this court for an enlargement of time to file an

application for a COA covering all the issues raised in his § 2255 motion. A judge

of this court denied the motion and directed Jones to limit his brief to the two

issues certified for appeal. Jones moved for panel reconsideration of the single-

judge denial. Attached to his motion was an application to amend the COA,

specifically presenting the additional claim Jones wishes to present before this

court today: that he was denied effective assistance of counsel with respect to the

suppression of wiretap evidence.

      The government moved to dismiss the portions of Jones’s appeal that

addressed uncertified issues. A two-judge panel of this court ordered the

government’s motion and Jones’s motion for reconsideration to be carried with the

case. Later, a three-judge panel ordered that Jones’s motion for reconsideration be

denied and that the government’s motion to dismiss be carried with the case.

      At oral argument, the government suggested that Jones should be limited to


                                          9
arguing the two certified claims, as indicated by the denial of reconsideration of the

order limiting Jones to two issues. However, the motion panel’s denial does not

bind the panel hearing the case on the merits. See 11th Cir. R. 27-1(g) (“A ruling

on a motion or other interlocutory matter . . . is not binding upon the panel to

which the appeal is assigned on the merits, and the merits panel may alter, amend,

or vacate it.”); Vann v. Citicorp Savings, 891 F.2d 1507, 1509 n.2 (11th Cir. 1990)

(citing rule). In other words, the “law of the case” doctrine10 does not apply to an

administrative ruling issued pending oral argument. Cf. Henry v. Department of

Corrections, 197 F.3d 1361, 1366 n.2 (11th Cir. 1999) (motions judge’s ruling on

COA was not law of the case on future appeal).

       Because Jones explicitly requested that his COA be expanded to cover the

wiretap suppression issue, and because we find that he has made a substantial

showing that he was denied his constitutional right to effective assistance of

counsel, we grant Jones’s request to expand the scope of his certificate. We certify

this additional issue: whether the defendant was deprived of the effective

assistance of counsel by his attorney’s failure to argue for the suppression of

wiretap evidence due to the sealing requirements of 18 U.S.C. § 2518(8)(a).


         10
           Cf. In re Justice Oaks II, Ltd. (Wallis v. Justice Oaks II, Ltd.), 898 F.2d 1544, 1549
n.3 (11th Cir. 1990) (explaining doctrine); 18 Wright, Miller, et al., Federal Practice &
Procedure § 4478 (1981 and 2000 Supp.).

                                                10
Ineffective Assistance of Counsel

        In reviewing the denial of a § 2255 motion, we examine legal issues de novo

and underlying factual findings for clear error. See, e.g., Castillo v. United States,

200 F.3d 735, 736 (11th Cir. 2000) (per curiam). Ineffectiveness of counsel is a

mixed question of law and fact reviewed de novo. See Meeks v. Moore, 11th Cir.,

216 F.3d 951, 959 (11th Cir. 2000).

        To establish that he was denied his Sixth Amendment right to effective

counsel, Jones must show two things. First, Jones must show that his counsel was

deficient; that is, that his representation “‘fell below an objective standard of

reasonableness.’” Williams v. Taylor, __ U.S. __, 120 S. Ct. 1495, 1511 (2000)

(quoting Strickland v. Washington, 466 U.S. 668, 688). Second, Jones must show

that the deficient performance prejudiced his right to a fair trial. See id. Prejudice

is found when “‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Id.

at 1512 (quoting Strickland, 466 U.S. at 694). We address Jones’s contentions in

turn.

        Suppression of Wiretap Evidence

        Jones states that his counsel was deficient in failing to argue for the

suppression of wiretap evidence based on the sealing requirements of 18 U.S.C. §


                                           11
2518(8)(a). We agree.

       18 U.S.C. § 2518(8)(a) requires that immediately upon expiration of an

order authorizing interception and recording of certain communications, the

recordings must be sealed under the direction of the judge who issued the order.

The statute contains “an explicit exclusionary remedy for noncompliance,”

providing that “‘the presence of the seal . . . or a satisfactory explanation for the

absence thereof, shall be a prerequisite for the use or disclosure of the contents’” of

the recordings, or evidence derived therefrom, in a proceeding. United States v.

Ojeda Rios, 495 U.S. 257, 260 (1990) (quoting 18 U.S.C. § 2518(8)(a)). In Jones’s

case, the record indicates the tapes of the wiretap surveillance of his telephone

were sealed, at best, no earlier than thirty-one days after the surveillance

terminated.11 The government has proffered no explanation for the delay in sealing

the tapes.

       When the case against Jones began, the law of this circuit was that a delay in

the sealing of wiretap recordings did not require suppression if the government

“accounted for the delay” and there was no showing of prejudice or that the

integrity of the recordings was disturbed. United States v. Diadone, 558 F.2d 775,


        11
            Jones has provided this court with a transcript of state court proceedings in which a
Cobb County judge agreed to receive the tapes and seal them, but there is currently no evidence
in the district court record that the tapes were ever judicially sealed at all.

                                               12
780 (5th Cir. 1977); see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981) (en banc) (adopting as binding precedent all cases decided in the Fifth

Circuit prior to the close of business on September 30, 1981).

       On October 10, 1989, the Supreme Court granted certiorari to review United

States v. Ojeda Rios, a Second Circuit case that reached a result contrary to that

which would have been reached under this court’s precedent.12 From that date,

Jones’s counsel was on notice that the Court would be considering the

circumstances under which wiretap evidence must be suppressed. Over a month

after the grant of certiorari, Jones’s counsel moved to suppress the wiretap

evidence. Jones’s motion did not raise the delay in sealing the tapes as a basis for

their suppression. Nor did it mention the grant of certiorari. Even two months

after the grant of certiorari, when filing a memorandum in support of the

suppression motion, counsel did not raise the issue.

       Since the district court would be required to follow the law of this circuit

until it was overruled by the Supreme Court or an en banc panel of this court, it

was not completely unreasonable for counsel to make a strategic decision to forego




        12
          See United States v. Ojeda Rios, 493 U.S. 889 (Oct. 10, 1989) (granting certiorari to
review United States v. Ojeda Rios, 875 F.2d 17 (2d Cir. 1989)).

                                               13
a claim that was a loser under the then-current state of the law.13 The highest

standards of practice would suggest that Jones’s counsel should have acted to

preserve Jones’s rights in light of the Supreme Court’s unequivocal signal that a

ruling would be forthcoming.14 But we are not prepared to say categorically that

counsel’s failure to do so constituted prejudicial, ineffective nonfeasance while the

law was still unsettled. See Strickland, 466 U.S. at 689 (reviewing court should

not second-guess or apply hindsight); Sullivan v. Wainwright, 695 F.2d 1306, 1309

(11th Cir. 1983) (counsel’s “failure to divine” change in unsettled law did not

constitute ineffective assistance); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir.

Unit A Apr. 1981) (“counsel is normally not expected to foresee future new

developments in the law”).

        Once the Supreme Court ruled in Ojeda Rios, however, the situation became

completely different. There was no need for speculation or clairvoyance. The


   13
     Under Diadone, Jones would not be entitled to suppression unless he could have shown that
he was prejudiced by the delay or that the integrity of the tapes was compromised. See Diadone,
558 F.2d at 780. Nothing in the record indicates that Jones could have made such a showing.
   14
      For example, see United States v. Carson, 969 F.2d 1480, 1483 (3d Cir. 1992). There,
although pre-Ojeda Third Circuit precedent was similar to ours, counsel moved to suppress tapes
due to delays in sealing. The tapes were not suppressed. Counsel preserved their clients’ rights
by moving for new trials, appealing, and filing petitions for certiorari with the Supreme Court.
See id. Thus, when the Supreme Court issued its opinion in Ojeda Rios, the Third Circuit
recalled its mandate and remanded the cases to the district court for reevaluation of the wiretap
suppression issues. See id. Ideally, Jones’s counsel would have taken similar steps, preserving
the issue for direct review.

                                               14
Supreme Court had rejected the Eleventh Circuit’s requirement that a defendant

had to show prejudice, or that the evidence had become compromised, as a

prerequisite to suppression. See Ojeda Rios, 495 U.S. at 264-65 (statute requires

“satisfactory explanation” for delay, not just “proof of nontampering”). The law

was then clear that unless the government could come up with a satisfactory

explanation for the thirty-one day delay in sealing Jones’s tapes, the tapes and all

evidence derived from them should have been suppressed. See Ojeda Rios, 495

U.S. at 265 and n.5 (overruling our precedent in Diadone); cf. United States v.

Feiste, 961 F.2d 1349, 1350 (8th Cir. 1992) (affirming suppression when 31-day

delay not excused).

      Coincidentally, the Court issued its opinion in Ojeda Rios the same day

Jones’s counsel filed his notice of appeal. The “satisfactory explanation”

requirement of Ojeda Rios applied retroactively to Jones’s case, which had not

even been briefed on appeal, much less become final. See Harper v. Virginia

Dep’t of Taxation, 509 U.S. 86, 97 (1993) (when Supreme Court applies rule of

federal law, that rule “must be given full retroactive effect in all cases still open on

direct review”); Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“a new rule for the

conduct of criminal prosecutions is to be applied retroactively to all cases . . .

pending on direct review or not yet final”). Once Ojeda Rios was decided, it was


                                           15
clear that its holding applied to Jones’s case. Therefore, failing to argue for

suppression in light of the thirty-one day delay in sealing the tapes fell below an

“objective standard of reasonableness.” Strickland, 466 U.S. at 688.

      This failure alone, however, will not entitle Jones to relief unless he can

show he was prejudiced by it. See id. at 687. Jones must show a reasonable

probability that the outcome of his case would have been different if his counsel

had argued for suppression based on the delay in sealing the tapes. The district

court did not resolve this issue because it erroneously considered Jones’s counsel

to have acted effectively merely by filing the original suppression motion.

      Accordingly, we remand to the district court for consideration of whether

Jones’s conviction could stand without the use of the wiretap evidence or its fruits.

Cf. Kimmelman v. Morrison, 477 U.S. 365, 389 (1986) (test is “whether a

reasonable probability exists that the trial judge would have had a reasonable doubt

concerning respondent’s guilt if the [excludible evidence] and related testimony

had been excluded”). If the wiretap evidence was crucial to Jones’s conviction, the

district court must then determine whether the government had a “satisfactory

explanation” for the thirty-one day delay in sealing the tapes, if indeed they were

ever sealed. See Ojeda Rios, 495 U.S. at 265 (government must explain “not only

why a delay occurred but also why it is excusable”); United States v. Carson, 969


                                          16
F.2d 1480, 1483, 1491-98 (3d Cir. 1992) (noting that circuit court had remanded

suppression issues for district court’s consideration in light of Ojeda Rios, and

discussing factors excusing delay).15 If the government cannot establish a

satisfactory reason for the delay, and it is reasonably certain the outcome of Jones’s

case would have been different if the wiretap evidence were suppressed, Jones was

deprived of his Sixth Amendment right to a fair trial and deserves relief under 28

U.S.C. § 2255.

        Sentencing

        If the district court determines that Jones’s conviction and sentence should

not be vacated due to the use of the wiretap evidence, a second issue must be

reached. Jones argues that the district court erred in failing to vacate or amend his

sentence due to his attorney’s failure to object to the general sentence imposed by

the court. “A defendant has a constitutional right to effective assistance of counsel

at sentencing.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). This

court applies the Strickland test for effective assistance of counsel to noncapital as




   15
      For cases discussing what constitutes excusable delay, see, e.g., United States v. Quintero,
38 F.3d 1317, 1325-31 (3d Cir. 1994); Feiste, 961 F.2d at 1351; United States v. Pedroni, 958
F.2d 262, 266-267 (9th Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 950 (2d
Cir. 1990).

                                                17
well as capital sentencing cases.16

        Jones was convicted of four counts relating to the manufacture and

distribution of methamphetamine. The district court imposed a general sentence of

360 months’ imprisonment for all four counts. “A general sentence is an undivided

sentence for more than one count that does not exceed the maximum possible

aggregate sentence for all the counts but does exceed the maximum allowable

sentence on one of the counts.” United States v. Woodard, 938 F.2d 1255, 1256

(11th Cir. 1991).

        As the district court noted, since “general sentences have been held to be per

se illegal in our circuit,”17 if Jones had challenged his sentence on appeal, this court

would have vacated the sentence and remanded for resentencing. Under this

scenario, the district court concluded, it would have resentenced Jones to the same

360-month term of imprisonment. Because Jones would not have received a lesser

sentence, the court reasoned, he suffered no prejudice and was not entitled to relief

under § 2255.

        The test, however, is not what the court might have done; the test is whether


   16
      See Strickland, 466 U.S. at 686 (leaving open the issue of how to define “constitutionally
effective assistance” in noncapital sentencing cases); Reece v. United States, 119 F.3d 1462,
1464 (11th Cir. 1997) (using Strickland test to determine whether counsel effectively represented
defendant during sentencing phase of noncapital methamphetamine case).
   17
     Woodard, 938 F.2d at 1256.

                                               18
the original sentence comported with the law. See Strickland, 466 U.S. at 695

(“[E]vidence about, for example, a particular judge’s sentencing practices[] should

not be considered in the prejudice determination.”). Accordingly, we vacate

Jones’s sentence and remand for resentencing.

      Failing to Object to Holding Jones Accountable for D-methamphetamine

      Jones argues that his counsel was ineffective in failing to object to his

sentence because he was not proven to have attempted or conspired to produce a

particular type of methamphetamine, D-methamphetamine, that draws a harsher

sentence than the more benign L-methamphetamine. D-methamphetamine

produces the physiological effects desired by the drug’s users; L-

methamphetamine has little or no physiological effect, is not made intentionally

but results from a botched attempt to produce D-methamphetamine, and is utterly

worthless. See Reece v. United States, 119 F.3d 1462, 1469 (11th Cir. 1997). To

establish prejudice based upon counsel’s failure to object to the use of D-

methamphetamine at sentencing, a petitioner must represent that he can establish

that the methamphetamine involved was the L-type. See id. at 1468. Where the

record and common sense indicate no dispute as to which form of the drug was

involved in the offense, no prejudice can be shown. See id. at 1470-71.

      Trial evidence revealed that Jones wanted to manufacture “some real strong


                                         19
methamphetamine, strong enough so that it could be cut.” Only D-

methamphetamine produces a strong physiological effect. See id. at 1469. Jones

has not pointed to any record evidence that establishes his intent to manufacture L-

methamphetamine. Thus, he cannot show prejudice from his counsel’s failure to

object, and we affirm the district court’s denial of relief.

                                    CONCLUSION

      We grant Jones’s request to expand the certificate of appealability. Because

Jones’s counsel failed to argue a change in controlling precedent that warranted

moving for suppression of wiretap evidence, we remand for consideration of

whether that failure deprived Jones of a fair trial under Strickland v. Washington.

Further, we vacate Jones’s general sentence and remand for resentencing if

necessary. In all other respects, we affirm the judgment of the district court.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




                                           20
