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Hahn v. Mosley

United States District Court, D. South Carolina

November 20, 2017

Marcus Hahn, Petitioner,
v.
Warden Bonita Mosely, Federal Correctional Institution, Edgefield, South Carolina, Respondent.

          REPORT AND RECOMMENDATION

          Bristow Marchant, United States Magistrate Judge

         The pro se Petitioner, Marcus Hahn, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. Petitioner is an inmate at FCI-Edgefield.

         On June 15, 2017, the Respondent filed a motion for summary judgment. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on June 29, 2017, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a response in opposition to the summary judgment motion on July 13, 2017, along with a motion to amend to file certain supplemental documents. Petitioner's motion to amend was granted, and the supplemental documents were filed on September 20, 2017.

         This matter is now before the Court for disposition.[1]

         Background

         Petitioner was indicted by a federal grand jury on February 2, 2002, on the following charges: (1) manufacturing marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) opening and maintaining a place for the purpose of manufacturing, distributing and using marijuana in violation of 21 U.S.C. §§ 856(a)(1) and (b); (3) possessing a firearm in furtherance of the manufacture of marijuana in violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(B)(I); and (4) possessing a firearm in furtherance of the maintenance of a place to manufacture, distribute and use marijuana also in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(1)(B)(I).[2] He was found guilty on all counts in December, 2000; United States v. Hahn, 38 F.App'x 553, 554 (10th Cir. 2002); and was sentenced to a term of imprisonment consisting of (1) 60 months as to Count One, (2) 27 months as to Count Two, to run concurrent w/ Count One, (3) 120 months as to Count Three, to run concurrent w/ Counts One and Two, and (4) 300 months as to Count Four, to run consecutively with Counts One, Two, and Three. See Court Docket No. 1-1, p. 9. Petitioner filed a direct appeal.

         (Direct Appeal)

         On direct appeal, Petitioner raised the following issue:

the statute does not authorize treating his second firearm conviction as “second or subsequent” to the first for purposes of the statues's sentencing enhancement, because the underlying drug crimes were part of a “continuing incident” and were “coterminous in space and time.”

United States v. Hahn, 38 F.App'x at 554. The Tenth Circuit rejected his argument, holding as follows:

In United States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992), we wrote that “consecutive 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.” In Sturmoski the underlying offenses were attempting to manufacture a controlled substance and maintaining a place for manufacturing a controlled substance. Id. We 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. Specifically, we found that, by making it a crime to maintain a place for manufacturing drugs, “Congress intended to create a new felony that would punish a defendant's use of property for manufacturing activities related to narcotics.” Id. Thus, the conviction for maintaining a place for manufacture was distinct from the attempt to manufacture, and accordingly, the associated 924(c) convictions were distinct from each other. The only difference between the situations in Sturmoski and in this case is that one of Hahn's 924(c) was for possession in furtherance of manufacture, rather than possession in furtherance in attempt to manufacture. Thus, 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.
We must also reject [Petitioner's] argument that there can be no “second or subsequent conviction” if both convictions involve offenses that were “coterminous in space and time.” We have consistently held 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. In United States v. Parra, 2 F.3d 1058, 1062 (10th Cir. 1993), the offenses underlying two 924(c) convictions were possession of cocaine with intent to distribute and conspiracy to possess with intent to distribute. In United States v. Romero, 122 F.3d 1334, 1337 (10th Cir. 1997), the offenses underlying two 924(c) convictions were carjacking and interference with commerce by robbery and extortion. In both cases, we held that the district court properly treated one of the 924(c) convictions as “second or subsequent conviction.” Parra, 2 F.3d at 1071; Romero, 122 F.3d at 1343-1344.

United States v. Hahn, 38 F.App'x at 555.

         The Tenth Circuit concluded that “prior precedent defeats [Petitioner's] sole argument on appeal. The district court properly treated one of Petitioner's 924(c) convictions as a ‘second or subsequent conviction, ' and the sentence imposed by the district court is therefore AFFIRMED.” Hahn, 38 F.App'x at 555. Petitioner sought a writ of certiorari, but on January 27, 2013, the Supreme Court denied his petition. Hahn v. United States, 537 U.S. 1173 (2003).

         (First § 2255 Petition)

         On January 14, 2004, Petitioner filed a § 2255 motion to vacate his sentence, asserting 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', [ ] and that § 924(c)(1) contains a number of ambiguities, requiring application of the rule of lenity”. United States v. Hahn, 191 Fed.Appx. 758, 760 (10th Cir. 2006). Petitioner claimed that these arguments were not raised on appeal and that they were not raised because his ...


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