UNITED STATES of America, Plaintiff-Appellee, v. Frank Charles McMULLEN, Jr., Defendant-Appellant

This appeal by Frank Charles McMullen from the denial of his 28 U.S.C. § 2255 motion to vacate his sentence requires us to decide if defendants convicted of possession of methamphetamine with intent to distribute waive their right to challenge on collateral review the sentencing court’s finding of the type of methamphetamine involved in their offense when they fail to assert that challenge at sentencing or on direct appeal. Appellant argues that the probation officer who prepared the presentence report improperly assumed that McMullen possessed D-methamphetamine rather than L-methamphetamine, and that the sentencing court erred in relying on that assumption. McMullen also argues that he was denied effective assistance of counsel when his attorney failed to raise the issue of L- versus D-methamphetamine at sentencing. Further, he contends that the district court abused its discretion in denying his motions for discovery and an evidentiary hearing.

The district court had jurisdiction pursuant to 28 U.S.C. § 2255 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. We affirm.

I.

McMullen does…