United States of America, Plaintiff-appellee, v. Larry J. Lummus, Defendant-appellant, 103 F.3d 142 (9th Cir. 1996)

MEMORANDUM^** 

Larry J. Lummus, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his 132-month sentence imposed following his jury trial conviction for one count of conspiring to distribute methamphetamine (21 U.S.C. §§ 841 and 846) and four counts of possessing with the intent to distribute and distribution of methamphetamine (21 U.S.C. § 841). We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm.

Lummus contends here that: (1) his sentence was improperly calculated because the government failed to prove that the substance he conspired to distribute and distributed was D-methamphetamine as opposed to L-methamphetamine; (2) trial counsel was ineffective for failing to raise the issue at sentencing; and (3) the district court erred by denying his section 2255 motion without first holding an evidentiary hearing. Lummus' contentions are foreclosed by United States v. McMullen, No. 95-36031, slip op. 14007, 14012 (9th Cir. Oct. 23, 1996) (holding that defendants cannot raise D-meth/L-meth claim for the first time in a section 2255 motion and concluding that trial counsel's failure to pursue the issue at sentencing did not fall below an objective standard of reasonableness); see also Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994) (evidentiary hearing not required where record conclusively shows that movant is not entitled to relief).

AFFIRMED.