UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 97-7040
v.	E.D. Oklahoma
HAROLD JUNIOR STANBERRY,

Defendant - Appellant.	(D.C. No. 95-CV-143-S)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.

Petitioner Harold Junior Stanberry, a federal inmate appearing pro se, appeals from the district court's dismissal of his 28 U.S.C. § 2255 petition to vacate, set aside, or correct an illegal sentence. We affirm the district court's dismissal of the petition.

In November 1990, petitioner was convicted of conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846, distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1), use of a communication facility to facilitate the distribution of methamphetamine in violation of 21 U.S.C. § 843(b), and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). In accordance with the Presentence Report ("PSR"), the district court calculated petitioner's sentence based on the assumption that the offense involved d-methamphetamine and, in January 1991, sentenced petitioner to 210 months in prison followed by five years' supervised release. His convictions and sentence were affirmed on direct appeal in April 1992. See United States v. Stanberry, 963 F.2d 1323 (10th Cir. 1992).

In March 1995, petitioner filed in district court his pro se motion to vacate, set aside, or correct an illegal sentence, asserting he was denied effective assistance of counsel because his trial counsel failed to file a motion to suppress evidence prior to trial, failed to advise that jeopardy had attached when the government seized U.S. currency belonging to petitioner, and failed to challenge the type of methamphetamine at sentencing. The U.S. Magistrate Judge issued his Findings and Recommendation in November 1996, recommending that petitioner's § 2255 motion be denied, and in March 1997, the district court adopted the Findings and Recommendation of the magistrate and denied petitioner's motion.1

To succeed on a claim of ineffective assistance of counsel, petitioner must demonstrate that his counsel's performance fell "below an objective standard of reasonableness" and was so prejudicial "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). After carefully examining the record, we conclude that petitioner has not succeeded in meeting this standard as to his first two claims that his counsel was ineffective for failing to file a motion to suppress and for failing to advise that jeopardy had attached upon the civil forfeiture. We conclude that petitioner's third claim, that his counsel was ineffective for failing to challenge the methamphetamine type at sentencing, is barred on procedural grounds.

First, petitioner alleges his counsel was ineffective for failing to file a motion to suppress evidence which was seized when a package sent by petitioner and addressed to co-defendant Stacy Coyote broke open at the Bulk Mail Center in Dallas, Texas, and was subsequently searched pursuant to a federal search warrant. Petitioner argues that the warrant was defective and that, as sender of the package, he has standing to object to the illegal search. Petitioner's Br. at 6-7.

We find it unnecessary to determine the issues of sufficiency of the warrant and standing because the package was mailed fourth class, as was determined by this court in the appeal of co-defendant Coyote. See United States v. Coyote, No. 96-7090, 1997 WL 107294, at *1 (10th Cir. March 11, 1997) ("[W]e conclude . . . the package seized and searched was a fourth class mailing . . . ."). As such, the package carried "no expectation of privacy."2 Id.; see also United States v. Riley, 554 F.2d 1282, 1283 (4th Cir. 1977); Santana v. United States, 329 F.2d 854, 856 (1st Cir. 1964). Petitioner's counsel was not ineffective for failing to raise this meritless claim. See United States v. Dixon, 1 F.3d 1080, 1084 n.5 (10th Cir. 1991).

Next, petitioner asserts his counsel was ineffective for failing to advise that jeopardy attached when the government seized $7,960.22 from petitioner.3 The Supreme Court has stated, "[C]ivil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress has long authorized the Government to bring parallel criminal proceedings and civil forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause." United States v. Ursery, 116 S. Ct. 2135, 2147 (1996). As above, the failure to assert a meritless issue does not constitute ineffective assistance of counsel. Dixon, 1 F.3d at 1084 n.5.

Finally, petitioner asserts that his counsel was ineffective for failing to require the government at sentencing to determine if the methamphetamine was type-d or type-l.4 Even if we accepted this assertion, we conclude that petitioner has waived this claim by failing to object to the Findings and Recommendation of the magistrate in which the magistrate concluded that petitioner had not disputed the existence of prejudice established by the government pursuant to Rule 9(a) and that therefore, this issue was precluded.5 See R. Vol. I at tab 12, U.S. Magistrate's Findings and Recommendation at 11; R. Vol. I at tab 13, Objections to the Report and Recommendation of the U.S. Magistrate Judge. Generally, failure to make timely objection to the magistrate's findings or recommendations waives the right to appellate review of those findings, whether legal or factual. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). Here, we find that the magistrate complied with the special protections we have required for pro se litigants,6 and we do not find that the "interests of justice" exception applies. See id. (stating that the waiver rule as a procedural bar need not be applied "when the interests of justice so dictate"). We conclude, therefore, that this issue has been effectively waived by petitioner.7

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge