United States v. Mullen , 160 F. App'x 711 ( 2005 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    December 22, 2005
    TENTH CIRCUIT
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 05-4148
    (D.C. Nos. 04-CV-1014-TC and
    v.
    2:02-CR-53-TC)
    (D. Utah)
    DANA HOWARD MULLEN
    Defendant-Appellant.
    ORDER DENYING A CERTIFICATE OF APPEALABILITY
    Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
    Dana Mullen, acting pro se, requests a certificate of appealability (“COA”)
    to appeal the denial of his 
    28 U.S.C. § 2255
     petition. For substantially the same
    reasons set forth by the district court, we DENY Mullen’s request for a COA and
    DISMISS.
    A jury convicted Mullen of being a felon in possession of a firearm in
    violation of 
    18 U.S.C. § 922
    (g). The district court sentenced him to 120 months
    in prison. He brings three contentions for our consideration on appeal: (1) the
    district court below did not have federal subject matter jurisdiction; (2) counsel
    was ineffective in entering into a stipulation of fact and law regarding
    transportation in interstate commerce of the gun in question without having
    conducted an investigation into the facts stipulated to; and (3) the district court
    erred under United States v. Booker, 
    543 U.S. 220
     (2005) in sentencing Mullen on
    the basis of facts not found by the jury. 1 Each of these arguments is without
    merit.
    In support of the first contention, Mullen argues that the district court did
    not have jurisdiction to hear the case because the government did not establish
    that the gun in question had been in interstate commerce. Federal district courts
    have exclusive jurisdiction to hear federal criminal cases. 
    18 U.S.C. § 3231
    .
    Because § 922(g) is a federal offense, the district court had subject matter
    jurisdiction regardless of whether the gun had been in interstate commerce.
    Section 922(g)’s requirement that the gun involved in the offense have been
    shipped or transported in interstate commerce is merely an element of the crime.
    Because Mullen’s petition was filed after April 24, 1996, the effective
    1
    date of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s
    provisions apply to this case. See Rogers v. Gibson, 
    173 F.3d 1278
    , 1282 n.1
    (10th Cir. 1999). AEDPA conditions a petitioner’s right to appeal a denial of
    habeas relief under
    § 2255 upon a grant of a COA. 
    28 U.S.C. § 2253
    (c)(1)(B). A COA may be issued
    “only if the applicant has made a substantial showing of the denial of a
    constitutional right.” § 2253(c)(2). This requires Mullen to demonstrate “that
    reasonable jurists could debate whether (or, for that matter, agree that) the
    petition should have been resolved in a different manner or that the issues
    presented were adequate to deserve encouragement to proceed further.” Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted).
    -2-
    See United States v. Tush, 
    287 F.3d 1294
     (10th Cir. 2002) (analogous provision
    in 
    18 U.S.C. § 844
    (i) is an element of the crime and not jurisdictional) (quotation
    and citation omitted). If Mullen had been able to prove that the gun had not been
    shipped or transported in interstate commerce, he would have been found not
    guilty under § 922(g), but the district court would have retained jurisdiction over
    the case under 
    18 U.S.C. § 3231
    .
    Next, Mullen claims that his counsel was ineffective because he failed to
    investigate whether the gun had ever been in interstate commerce and yet
    stipulated to that fact. He claims that the gun was manufactured and sold in Utah,
    and had been taken across state lines on only one occasion when the gun’s owner
    took it with her on a vacation to Wyoming.
    To establish that his counsel was ineffective, Mullen must demonstrate that
    “his attorney’s representation was deficient and that he was prejudiced by that
    deficiency.” James v. Gibson, 
    211 F.3d 543
    , 555 (10th Cir. 2000) (citing
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984)). In evaluating a claim of
    ineffective assistance, we “indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional assistance; that is, the
    defendant must overcome the presumption that, under the circumstances, the
    challenged action might be considered sound trial strategy.” Strickland, 
    466 U.S. at 689
     (quotation omitted).
    -3-
    A firearm is deemed to have been in interstate commerce if it has been
    transported across state lines. United States v. Snow, 
    82 F.3d 935
    , 940 (10th Cir.
    1996). Because interstate commerce is not limited to interstate trade, the fact that
    the crossing took place when the gun was taken by its owner to Wyoming while
    on vacation did not render the stipulation improvident. See Archambault v.
    United States, 
    224 F.2d 925
    , 928 n.3 (10th Cir. 1955) (“movement of people
    across state lines . . . is commerce.”) Nor does the distance traveled affect the
    analysis as long as one state line has been crossed. See International Text-Book
    Co. v. Pigg, 
    217 U.S. 91
    , 107 (1910) (“[i]mportation into one State from another
    is the indispensable element, the test, of interstate commerce.”) Although
    Mullen’s attorney did not conduct an independent investigation, he relied on a
    statement given by the gun’s owner to police that she had taken the gun to
    Wyoming. Given the attorney’s strategic choice to focus at trial on whether the
    gun was in Mullen’s possession, his decision to stipulate that the gun had traveled
    in interstate commerce does not constitute deficient performance.
    Finally, Mullen argues that the district court erred under Booker and
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), by sentencing Mullen on the basis
    of facts not found by a jury. Mullen presents no evidence suggesting that his
    sentence was increased by judicial fact-finding. This failure, however, is of no
    consequence because Booker and Apprendi do not apply retroactively to habeas
    -4-
    petitions. United States v. Bellamy, 
    411 F.3d 1182
     (10th Cir. 2005). Thus, the
    district court committed no error.
    Petitioner’s request to proceed in forma pauperis is GRANTED. His
    request for a COA is DENIED and his case is DISMISSED.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -5-