Lead Opinion
Petitioner-Appellant Marcus Hahn appeals the final order of the district court denying his petition for a writ of habeas corpus under
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 *298and 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;
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.
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 ,
In 2004, Hahn filed a motion under
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.
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 ,
*300The 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
Hahn contended that he was actually statutorily innocent of his second § 924(c) conviction after Rentz because the charge was procedurally improper. The magistrate judge issued a report that recommended denying Hahn's petition because Hahn could not meet the three-pronged test outlined in In re Jones ,
(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
Id . Hahn objected to the magistrate's report and recommendation, but the district court adopted the magistrate judge's recommendation and denied his petition. Hahn filed a Rule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district court denied the motion as without merit, and Hahn timely appealed.
II.
Generally, defendants who are convicted in federal court must pursue habeas relief from their convictions and sentences through the procedures set out in
As the district court properly recognized, in determining whether to grant habeas relief under the savings clause, we consider (1) whether the conviction was proper under the settled law of this circuit or Supreme Court at the time;
*301(2) if the law of conviction changed after the prisoner's direct appeal and first § 2255 motion; and (3) if the prisoner cannot meet the traditional § 2255 standard because the change is not one of constitutional law. In re Jones ,
A.
The first prong of In re Jones requires that "at the time of conviction, settled law of the circuit or the Supreme Court established the legality of the conviction."
There are two legal principles that may limit the Government's power to pursue multiple charges for the same underlying conduct in this case: (1) the statute's unit of prosecution and (2) the Double Jeopardy Clause. At the time of Hahn's conviction, Tenth Circuit law held that the only requirement for charging multiple § 924(c)(1)(A) counts based on a single criminal event was that the crimes of violence or drug trafficking crimes underlying each count be separate to avoid violations of the Double Jeopardy Clause.
In Sturmoski , the Tenth Circuit rejected the defendant's argument that multiple § 924(c) convictions for the same underlying conduct were impermissible, reasoning that "separate convictions can arise from essentially identical facts" if the convictions do not violate double jeopardy.
B.
Our decision in In re Jones next requires that we ask whether "subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal."
In 2013, a panel of the Tenth Circuit heard United States v. Rentz , a case in which a defendant's single use of a firearm, resulting in one gun shot, led to convictions for two crimes: assault and murder.
On appeal, the Tenth Circuit reversed. Id . at 1254. The panel, relying on Sturmoski , "held that the proper 'unit of prosecution' under § 924(c) is a single underlying offense-meaning that two convictions under § 924(c) arising from the same course of conduct were proper under the language of § 924(c)."
The Tenth Circuit later granted rehearing en banc to decide the unit of prosecution issue that led to the reversal of the district court's decision. See Rentz ,
Hahn argues that the en banc decision in Rentz constitutes a substantial change in the law because it introduces a new statutory framework that was not present in Sturmoski . We agree. Under Sturmoski , whether or not conduct could lead to multiple charges under § 924(c) in the Tenth Circuit depended solely on whether the charge violated the Double Jeopardy Clause. Now under Rentz , it is not enough that the multiple charges pass muster under the Double Jeopardy Clause. Rather, multiple charges must also comply with a unit-of-prosecution statutory analysis that examines how many distinct instances of conduct exist. When the charges or counts exceed the number of acts, those extra charges or counts cannot form the basis of additional criminal liability. In sum, Rentz constitutes a substantive change in the law that renders Hahn's firearm possession no longer sufficient to support two § 924(c) convictions.
The Government advances several arguments to the contrary, none of which we find persuasive. Relying on Schlup v. Delo ,
Moreover, the Government argues that Rentz does not control because there are factual differences between Sturmoski and Rentz that make them distinguishable. However, Rentz outlines a new statutory scheme of interpretation that is not a fact-dependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis in criminal matters implicating § 924(c). The newly required analysis applies to any § 924(c) charge regardless of the particular facts of the case.
The Government further argues that Hahn's case involves multiple possessions and that the petition should therefore still be denied. We also find this argument unavailing. Hahn was charged with two counts based on a single gun collection that the police discovered at his home on a single day. The same firearm collection was listed in the indictment as support for both of the firearm counts. The Government argues that Hahn should still be found to have separate possessions under Rentz because the guns were found at different locations throughout his house. See United States v. Hutching ,
In conclusion, Rentz substantively changed the law of the Tenth Circuit. Because of this change, Hahn's petition satisfies the second prong of In re Jones . Only one firearm possession exists, and therefore-under Rentz -only one § 924(c) charge is proper here.
C.
Finally, our decision in In re Jones provides that Hahn can pursue § 2241 relief only if he "cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law."
III.
Hahn's conviction on Count IV-the second of his § 924(c) convictions-cannot stand because it is not supported by an independent firearm possession under recent Tenth Circuit precedent. We therefore reverse the district court's decision and remand with instructions to grant Hahn's writ of habeas corpus and vacate his second conviction under
REVERSED AND REMANDED WITH INSTRUCTIONS
The Government requested that this Court stay the current proceedings in anticipation of the Supreme Court's decision whether to grant certiorari in United States v. Wheeler ,
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Id .
The sentencing court characterized the Count IV firearm conviction as a "second or subsequent" conviction under § 924(c), for which the statute mandated a consecutive sentence of twenty-five years. United States v. Hahn ,
The district court had jurisdiction over Hahn's § 2241 petition under
The Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when determining the propriety of multiple charges or counts.
The Government correctly notes that the Tenth Circuit in Rentz explains that the exact definition of possession, carry, and use remains unsettled. However, this does not diminish the Tenth Circuit's holding in Rentz that where, as here, the Government charges two § 924(c) counts for the same single carry, use, or possession, the multiple charges are in error.
Concurrence Opinion
I concur fully in the majority opinion.
I write separately to further explain why the "actual innocence" test proposed by the government-which the Supreme Court has directed courts to apply in determining whether a habeas petitioner may pursue a procedurally defaulted constitutional claim, see Bousley v. United States ,
Under the Schlup / Bousley "actual innocence" test, Petitioner Marcus Hahn would have to show that "no reasonable juror would have found [him] guilty."
Several compelling reasons support our conclusion that the actual innocence framework does not apply in determining whether a petitioner is entitled to pursue relief under the savings clause as a result of a statutory construction error. First, Jones -which established this Court's three-prong test for determining whether a petitioner may avail himself of the savings clause as a result of a later-corrected error in statutory construction-does not use the term "actual innocence," instead requiring a petitioner to show that "the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal." Jones ,
Notably, Jones focused not on whether a petitioner was "actually innocent," but whether a subsequent change in statutory construction amounted to a "fundamental defect" in the petitioner's prosecution.
Second, this Court's holding in United States v. Wheeler ,
Third, it makes no theoretical sense to extend the Schlup / Bousley actual innocence test to the savings clause context, at least in cases like the instant case in which the petitioner pressed his legal argument in his original proceedings. As explained above, the Schlup / Bousley actual innocence test applies when a prisoner procedurally defaulted the claim at issue. Typically, a federal prisoner seeks to rely on Schlup / Bousley actual innocence test when he cannot meet the "cause" and "prejudice" necessary to excuse the procedural default under Section 2255. For instance, the prisoner in Bousley , who had "pleaded guilty to 'using' a firearm in violation of
By contrast, both before his original trial court and on direct appeal, Petitioner argued that the single indicted possession did not, as a matter of statutory construction, support his two Section 924(c)(1) convictions. The only reason that argument failed was because it was foreclosed by circuit precedent. Accordingly, at least when, as here, a petitioner does not procedurally default a claim, it is improper to subject that petitioner to a standard more onerous than the cause-and-prejudice standard applied in procedural default cases.
Finally, it is patently unfair to subject a petitioner to the onerous actual innocence standard when an appellate court's errant statutory construction foreclosed the petitioner from making a potentially meritorious argument to a jury or in a motion for acquittal. As the majority opinion explains, Petitioner repeatedly argued before his trial court and on direct appeal that the single indicted possession could not support two Section 824(c)(1) convictions. Under its actual innocence approach, the government theorizes that the jury could have found that firearms stored in different parts of the house constituted distinct possessions. But because circuit precedent foreclosed Petitioner's unit-of-prosecution argument-and, therefore, the government never needed to advance an independent possession argument to the jury-Petitioner was never given the opportunity to argue to the jury that all the firearms amounted to a single possession.
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I further note that even if Schlup 's actual innocence standard applied-and, as explained above, this Court rightly holds that it does not-Petitioner would be entitled to relief because, as the majority opinion explains, his indictment alleges that a single possession supported both of his 924(c)(1)(A) convictions. In Bousley , the Supreme Court held that in determining whether a prisoner is "actually innocent," a court may not consider factual theories not alleged in a habeas petitioner's indictment or which, based on record evidence, the government elected not to charge in exchange for obtaining a guilty plea.
As in Bousley , Petitioner's indictment charged him only with a single possession-it did not allege that subsets of the uniform list of firearms set forth in each charge of the indictment constituted independent "possessions." Accordingly, any holding that a reasonable juror could have found that subsets of the firearms constituted distinct possessions would amount to an impermissible constructive amendment of the indictment. See Stirone v. United States ,