Hahn v. Moseley

• Decision Date: 24 July 2019
• Docket Number: No. 18-6283,18-6283
• Citation: 931 F.3d 295
• Parties: Marcus HAHN, Petitioner – Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

931 F.3d 295

Marcus HAHN, Petitioner – Appellant,

v.Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent – Appellee.

No. 18-6283

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2019

Decided: July 24, 2019

ARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

Reversed and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a concurring opinion.

GREGORY, Chief Judge:

Petitioner-Appellant Marcus Hahn appeals the final order of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Hahn’s current sentence stems from faulty arithmetic based on a now-obsolete scheme of statutory interpretation, we conclude that Hahn’s petition meets the requirements of 28 U.S.C. § 2255(e), the savings clause. We therefore reverse the district court’s order and remand with instructions to grant Hahn’s writ of habeas corpus.¹

I.

On December 31, 1999, law enforcement from various state and federal agencies executed a search warrant for Hahn’s home near Albuquerque, New Mexico. Hahn was arrested after law enforcement discovered and seized marijuana plants and firearms during that search. On December 7, 2000, at the conclusion of a jury trial in the United States District Court for the District of New Mexico, a jury convicted Hahn of the following four counts: (1) intentionally manufacturing 100 or more marijuana plants;² (2) opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana;³ (3) possessing firearms in furtherance of the intentional manufacturing of 100 or more marijuana plants;⁴ and (4) possessing a firearm in furtherance of the opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana.⁵ Counts III and IV are based on the same gun collection, which includes 21 firearms.

In 2001, the district court sentenced Hahn to 480 months’ imprisonment for these gun and drug offenses. He received 60 months’ imprisonment for Count I, a concurrent 27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300 months for Count IV.⁶

In 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his sentence for his second firearm conviction. He contended that the district court impermissibly treated his second firearm conviction as "second or subsequent" to his first firearm conviction for purposes of the statute’s sentencing enhancement. Hahn I , 38 F. App'x at 554. Hahn argued that the court’s approach was in error because the underlying drug crimes were part of a "continuing incident" and were "coterminous in space and time." Id. The Tenth Circuit rejected this argument, relying principally on United States v. Sturmoski , 971 F.2d 452, 461 (10th Cir. 1992) ("[C]onsecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not constitute a single offense for double jeopardy purposes."). Similar to Hahn, the defendant in Sturmoski appealed convictions for: (1) attempting to manufacture a controlled substance; (2) maintaining a place for manufacturing a controlled substance; and (3) two 18 U.S.C. § 924(c) convictions for facilitating the aforementioned drug counts. Hahn I , 38 F. App'x at 555. The Sturmoski court held that "Congress intended multiple convictions under 924(c), even though the counts involved ‘the same criminal episode,’ because Congress intended the underlying offenses to be separate." Id. After reviewing Sturmoski , the Tenth Circuit in Hahn’s case found that "[t]he only difference between the situations in Sturmoski and in this case is that one of Hahn’s 924(c) convictions was for possession in furtherance of manufacture, rather than possession in furtherance of attempt to manufacture." Id. Given the factual and legal similarities between Sturmoski and Hahn’s case, the court found that " Sturmoski clearly controls the outcome of this case. Hahn’s conviction for maintaining a place for manufacture is distinct from his manufacture conviction, and his two 924(c) convictions are also distinct." Id. The court further ruled that "even if possession of a firearm occurs in connection with a single criminal episode, a second 924(c) conviction arising out of that episode can constitute a ‘second or subsequent conviction’ for sentencing purposes." Id. The Tenth Circuit therefore affirmed Hahn’s convictions and sentence. Id.

In 2004, Hahn filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in the United States District Court of New Mexico. He argued that "double jeopardy bars multiple § 924(c)(1) firearm convictions based on multiple predicate offenses which are factually inseparable in terms of time, space and underlying conduct." United States v. Hahn , 191 F. App'x 758, 760 (10th Cir. 2006) (citation and internal quotation marks omitted) (" Hahn II "). Hahn also argued that " § 924(c)(1) contains a number of ambiguities, requiring application of the rule of lenity." Id. Hahn explained that he did not previously raise these arguments because he received ineffective assistance of counsel. The district court dismissed the motion in 2004, concluding that Hahn’s arguments were procedurally barred and without merit. Id .

Hahn filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and moved to amend his § 2255 motion to add more evidence. Id. The district court treated these motions as successive § 2255 motions and transferred them to the Tenth Circuit. Hahn appealed this determination, and the Tenth Circuit issued a certificate of appealability to consider Hahn’s § 924(c)(1) arguments. The Tenth Circuit subsequently affirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it was procedurally barred because he did not raise it on direct appeal; (2) even if his double jeopardy claim was not procedurally barred, counsel’s failure to raise it would not have constituted ineffective assistance of counsel because Sturmoski controls and renders Hahn’s double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion to vacate could not be used, absent an intervening change in circuit law, to raise an argument that was resolved on direct appeal. Hahn II , 191 F. App'x at 760-61.

In 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to relief because of an en banc Tenth Circuit decision issued after the dismissal of his petition. United States v. Rentz , 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz altered the substantive law in the Tenth Circuit by establishing a new statutory framework interpreting § 924(c). Specifically, Hahn contended that Rentz added a unit-of-prosecution requirement for a § 924(c) conviction and therefore entitled him to relief denied under Sturmoski . Unit-of-prosecution questions ask whether the conduct at issue "constitutes one, or several, violations of a single statutory provision." Callanan v. United States , 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). In Rentz , the Tenth Circuit addressed the issue of whether, as a matter of statutory construction, § 924(c) "authorizes multiple charges when everyone admits there’s only a single use, carry, or possession." 777 F.3d at 1108. After recognizing that this question was separate from the double jeopardy inquiry, the court ruled that each § 924(c) charge "requires an independent use, carry, or possession." Id. at 1115. Before Rentz , when Sturmoski was controlling law, multiple charges under § 924(c) were permissible as long as they did not run afoul of the Double Jeopardy Clause. After Rentz , the Tenth Circuit, based on the language of the statute itself, held that multiple charges under § 924(c) based on the same conduct were not proper even if they complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper to allow multiple charges to arise from a single possession under the language of the statute. Id.

The district court determined that Hahn’s motion should be treated as a second or subsequent § 2255 motion—i.e., a motion that could not be filed without precertification by the Court of Appeals—and transferred it to the Tenth Circuit. Hahn then filed a motion to remand before the Tenth Circuit to allow the district court to consider the merits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or successive § 2255 motion. The Tenth Circuit denied both the motion to remand and Hahn’s request to file a second or successive § 2255 motion based on a procedural impediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements for a second or subsequent motion.

At some point after 2015, correctional officials transferred Hahn to a facility in South Carolina, where he is currently detained. Hahn filed the instant petition under 28 U.S.C. § 2241 in the United States District Court for the District of South Carolina. Pursuant to § 2241, federal courts have jurisdiction over habeas corpus petitions from federal inmates "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Habeas petitions filed...