                                    No. 96-1333



United States of America,    *
                                         *
                       Appellee,         *
                                         *    Appeal from the United States
          v.                             *    District Court for the
                                         *    Northern District of Iowa.
Monte Allen Apfel,                       *
                                         *
                     Appellant.          *



                        Submitted:     September 10, 1996

                        Filed:     October 7, 1996


Before FAGG, HEANEY, and MURPHY, Circuit Judges.


HEANEY, Circuit Judge.


     Appellant, Monte Allen Apfel, appeals the district court's denial of
his motion to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255.   We affirm.


                                         I.


     On April 20, 1990, pursuant to a plea agreement, Apfel pleaded guilty
to a single count of conspiracy to distribute and possess with intent to
distribute methamphetamine in violation of 21 U.S.C. § 846.                After
conducting an extensive evidentiary hearing to resolve disputed sentencing
issues, the district court sentenced Apfel to 175 months imprisonment.        We
affirmed Apfel's sentence on direct appeal.          United States v. Apfel, 945
F.2d 236 (8th Cir. 1991).
     On June 22, 1995, Apfel filed the instant motion under 28 U.S.C. §
2255 to set aside, vacate, or correct his sentence.   He   contends that his
trial counsel was ineffective for failing to object to the implicit
assumption at sentencing that Apfel's offense involved d-methamphetamine
(Dextro-methamphetamine)     rather       than   l-methamphetamine    (Levo-
methamphetamine), a substance that carried far less severe exposure under
the sentencing guidelines as of the time of Apfel's crime.1   The difference
between d- and l-methamphetamine was expressed in the Drug Equivalency
Tables by a factor of 250 to 1 to reflect that l-methamphetamine is
"grossly different" because it "produces little or no physiological effect
when ingested."   See United States v. Bogusz, 43 F.3d 82, 89 (3d Cir.
1994), cert. denied, 115 S. Ct. 1812 (1995).2


     On November 22, 1995, the district court directed Apfel to supplement
his motion with additional materials to support his allegation that the
type of methamphetamine involved in his case was l-methamphetamine.    Apfel
responded by filing his sworn affidavit asserting his opinion that the
drugs involved in his case




          1
          Apfel also contends that his appellate counsel                was
ineffective for failing to raise the issue on direct appeal.
              2
           As of November 1, 1995, the distinction between
methamphetamine types has been eliminated and l-methamphetamine is
treated the same as d-methamphetamine under the sentencing
guidelines.   Guidelines amendment number 518 explains that the
change was made because "l-methamphetamine is rarely seen and is
not made intentionally, but rather results from a botched attempt
to produce d-methamphetamine." U.S.S.G. App. C. at 423. The rule
applicable to Apfel, however, is the one in effect at the time the
crime was committed; application of the amended guideline to pre-
amendment conduct involving l-methamphetamine would violate the Ex
Post Facto Clause of the Constitution because the amendment
increased the penalty for crimes involving l-methamphetamine. See
United States v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996); see
also U.S.S.G. § 1B1.11(b)(1).

                                      2
were l-type methamphetamine.3      The district court then denied Apfel's
motion, finding that his affidavit contained only "bare, unsupported and
self-serving statements" and concluding that Apfel had "failed to show that
if   his attorney at sentencing had raised the issue of the type of
methamphetamine . . . it would have made any difference in the sentence
imposed."    (Appellant's Add. at 20-22 (Order dated Jan. 12, 1996)).   Apfel
appeals.


                                     II.


            Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not
have been raised on direct appeal and, if uncorrected, would result in a
complete miscarriage of justice.     See Poor Thunder v. United States, 810
F.2d 817, 821 (8th Cir. 1987).      A movant may not raise constitutional
issues for the first time on collateral review without establishing both




      3
      The entire factual basis for Apfel's assertion is contained
in the following three paragraphs of his affidavit:

         2.   I have studied, read, and researched at
      length the characteristics and [e]ffects of both L-
      Type and D-Type methamphetamine, including studying
      research   from the Journal of Forensic Sciences,
      Federal Criminal Law Publication, and other law
      publications.

      . . .

         4. From my experience in being around, using,
      and researching methamphetamine, it is my opinion
      that the drug involved in my case was in fact the
      L-type or very low grade methamphetamine.

         5. The methamphetamine that I used had more of
      a caffeine [e]ffect on me and exhibited other
      characteristics of being the L-Type, as [o]pposed
      to the long term [e]ffects, such as hallucinations,
      paranoia, etc., that D-Type would cause.

(Appellant's Add. at 8-9 (Affidavit of Defendant)).

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cause for the procedural default and actual prejudice resulting from the
error.




                                   4
United States v. Frady, 456 U.S. 152, 167-68 (1982); Auman v. United
States, 67 F.3d 157, 161 (8th Cir. 1995).     Absent unusual circumstances,
a showing of ineffective assistance of counsel satisfies both cause and
prejudice.     To establish ineffective assistance of counsel within the
context of section 2255, however, a movant faces a heavy burden:

     A claim of ineffective assistance of counsel [under §
     2255] must be scrutinized under the two-part test of
     Strickland v. Washington, 466 U.S. 668 (1984).      Under
     Strickland, in order to prevail on a claim of ineffective
     assistance of counsel, a convicted defendant must prove
     both that his counsel's representation was deficient and
     that the deficient performance prejudiced the defendant's
     case.    The first part of the test is met when the
     defendant shows that counsel "failed to exercise the
     customary skills and diligence that a reasonably
     competent attorney would [have] exhibit[ed] under similar
     circumstances."     The second part is met when the
     defendant shows that "there is a reasonable probability
     that, but for counsel's unprofessional errors, the result
     of the proceeding would have been different."

Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988) (citations
omitted).     Because the failure to establish prejudice can be dispositive
of a case, Sanders v. Trickey, 875 F.2d 205, 211 n.8 (8th Cir.), cert.
denied, 493 U.S. 898 (1989), we need not address the reasonableness of the
attorney's behavior if the movant cannot prove prejudice.      Montanye v.
United States, 77 F.3d 226, 230 (8th Cir. 1996), petition for cert. filed
(U.S. Sept. 3, 1996) (No. 96-5795); see Strickland v. Washington, 466 U.S.
668, 697 (1984) ("If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be
followed.")


     Apfel has not established a reasonable probability that the result
of his sentencing would have been different had his counsel objected to the
government's failure to prove the type of




                                      5
methamphetamine involved in his offense.4           Put another way, he has not
shown a reasonable probability that the government would not have been able
to prove by a preponderance of evidence that the offense involved d-
methamphetamine.    The sole basis for Apfel's claim that his case involved
l-methamphetamine is his own sworn statement that the drugs he used had a
caffeine-like effect on him with no long-term effects.              We agree with the
district court that Apfel's statements are unsupported and self-serving and
do not establish a basis for relief.         Accord United States v. Acklen, 47
F.3d 739, 744 (5th Cir. 1995) (remanding on similar facts to give defendant
opportunity    to   tender   "specific   verified    basis    or    evidence,    beyond
[defendant's] mere naked assertion or belief, that the drug was in fact l-
methamphetamine").    In contrast, the extensive record from Apfel's guilty
plea and two-day sentencing hearing eliminate doubt that the government
would have been able to demonstrate that the drugs involved in Apfel's
offense were d-methamphetamine.     The evidence showed that Apfel was a drug
dealer   who   obtained   drugs   from   Charles    Murphy,   one    of   the   largest
methamphetamine dealers in Waterloo, Iowa.             The government witnesses
included several long-time methamphetamine users who testified that they
had purchased drugs from Apfel.     Murphy's confidante and former bookkeeper,
who was intimately familiar with Murphy's drug supply operation, also
testified about a large drug debt Apfel owed her former employer.               The only
arguable support in the record for the claim that the drugs involved were
low grade l-methamphetamine is the testimony of one of Apfel's customers
that on one occasion he purchased methamphetamine from Apfel that was




     4
      Although our resolution of this case does not require us to
decide whether the performance of Apfel's counsel was deficient, we
note that counsel should have been alerted by the guidelines to the
potentially significant impact that the different types of
methamphetamine can have on sentencing.      Moreover, well before
Apfel's sentencing, this court held that the court must make a
factual determination as to the type of methamphetamine involved
prior to imposing a sentence. United States v. Koonce, 884 F.2d
349, 352 (8th Cir. 1989).

                                         6
"garbage" and impossible to resell.             (Sentencing Tr. at 134-35.)         This
testimony, however, does more to demonstrate that Apfel's customary drug
supply was normal-grade d-methamphetamine than to support Apfel's contrary
assertion.


     Apfel     has    not   met   his   heavy   burden    of   showing   a   reasonable
probability that his sentence would have been different if his counsel had
required     the     government   to    prove    that    the   offense   involved     d-
methamphetamine.      Therefore, he cannot demonstrate ineffective assistance
of counsel for not raising the issue at sentencing.            We affirm the district
court's denial of relief under 28 U.S.C. § 2255.


     A true copy.


           Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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