Silvestre Medrano-alfaro, Petitioner-appellant, v. United States of America, Respondent-appellee, 968 F.2d 1221 (9th Cir. 1992)

MEMORANDUM^**

Petitioner Medrano-Alfaro pled guilty to possession with intent to distribute methamphetamines. He now collaterally attacks his conviction on the grounds that methamphetamines are not controlled substances because commercial products sold over-the-counter contain them. The petitioner relies upon the exclusion of substances sold over-the-counter from the controlled substance list. 21 U.S.C. § 811(g) (1). The district court determined that because Medrano-Alfaro pled guilty, he could not raise this challenge. But we have determined that such a challenge may be made after a guilty plea, because the challenge goes to jurisdiction. United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991).

We have rejected, in Caperell, and more recently in United States v. Durham, 941 F.2d 886 (9th Cir. 1991), the very challenge Medrano-Alfaro raises here. These decisions control. United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir. 1990). An evidentiary hearing was not necessary, because the challenge was without merit as a matter of law.

Medrano-Alfaro frivolously alleges that both the government's brief and its citation of supplemental authority were impermissible ex parte communications. He received them both, apparently, because they were served on him. The district court was also within its discretion to consider Durham regardless of any underlining or incorrect addressing in the government's supplemental authority.

Medrano-Alfaro mentions a number of other issues: fair notice, due process, equal protection, and prosecutorial misconduct. He has neither followed the proper method for a brief written by a lawyer, nor has he followed the prescribed questionnaire format which organizes pro se briefs so that they can be understood, so it is difficult to determine what issues he means to raise and what arguments he wishes to make. These issues, if they were issues, are not developed in his appeal, so we decline to address them.

AFFIRMED.