                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 14, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                             FO R TH E TENTH CIRCUIT                    Clerk of Court



    U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,

     v.                                             Nos. 04-2344 & 05-2033
                                                 (D.C. Nos. CIV-04-44-JP/ACT
    M A RCUS H A H N ,                                  & CR -00-82-JP)
                                                           (D . N.M .)
              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.


          M arcus Hahn appeals the dismissal of his 28 U.S.C. § 2255 motion for

sentencing relief. He also challenges the transfer to this court of various post-

dismissal motions. W e affirm.



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
                                   B ACKGROUND

      W hile executing a search warrant on Hahn’s residence, police found

firearms and marijuana plants. Following a jury trial, Hahn was convicted on

four counts: manufacturing marijuana; maintaining a place to manufacture,

distribute and use marijuana; possessing a firearm in furtherance of

manufacturing marijuana; and possessing a firearm in furtherance of maintaining

a place to manufacture, distribute and use marijuana. Hahn’s twenty-five year

consecutive sentence for the second firearm offense forms the basis of this appeal.

      Hahn was sentenced under former 18 U.S.C. § 924(c)(1) (2000):

      (A) . . . any person who, during and in relation to any . . . drug
      trafficking crime . . . uses or carries a firearm, or who, in furtherance
      of any such crime, possesses a firearm, shall, in addition to the
      punishment provided for such . . . crime . . .
      (B) . . . be sentenced to a term of imprisonment of not less than 10
      years [if the firearm is a semiautomatic assault w eapon] . . . .
      (C) In the case of a second or subsequent conviction under this
      subsection, the person shall— (i) be sentenced to a term of
      imprisonm ent of not less than 25 years.

(Emphasis added.) Hahn appealed to this court. He argued that his conviction for

possessing a firearm in furtherance of maintaining a place to manufacture

marijuana could not qualify as a second or subsequent conviction to his

conviction for possessing a firearm in furtherance of manufacturing marijuana.

He reasoned that, because the underlying drug crimes “were coterminous in space

and time,” Aplt. App. at 77, it would be “an absurdity to declare that the

possession of a gun in furtherance of the marijuana grow is one offense, and that

                                         -2-
the possession of the same (or even of a different) gun in furtherance of using

one’s residence to grow marijuana is a ‘second or subsequent’ offense,” id. at 78.

Hahn characterized the statute as ambiguous and sought application of the rule of

lenity. Id. at 81. In affirming, we cited prior precedent 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.’” United States v. Hahn, 38 F. App’x. 553, 555 (10th Cir. 2002)

(quoting United States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992)). W e

indicated that there was no double jeopardy problem because Hahn’s drug

convictions were for separate and distinct wrongs. Id. W e were not persuaded

that the time-space overlap between the drug offenses meant that there was only

one firearm offense. W e noted prior precedent that a second or subsequent

§ 924(c) conviction may arise from “a single criminal episode.” Hahn, 38 F.

App’x at 555 (citing United States v. Rom ero, 122 F.3d 1334, 1137 (10th Cir.

1997), and United States v. Parra, 2 F.3d 1058, 1062 (10th Cir. 1993)). Hahn

unsuccessfully sought rehearing en banc and certiorari.

      In January 2004, Hahn moved to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. He argued that double jeopardy bars multiple

§ 924(c)(1) firearm convictions “based on multiple predicate offenses w hich are

factually inseparable in terms of time, space and underlying conduct,” Aplt. App.

at 17, and that § 924(c)(1) contains a number of ambiguities, requiring application

                                         -3-
of the rule of lenity. Hahn claimed that these arguments were not raised on

appeal and that they were not raised because his counsel was ineffective. The

district court dismissed the motion on M ay 12, 2004, finding Hahn’s arguments

procedurally barred and lacking in merit.

         On M ay 20, 2004, Hahn moved for reconsideration under Fed. R. Civ. P.

59(e), disputing that his double jeopardy claim had been resolved on direct appeal

and re-arguing precedent from the Fifth Circuit. On June 7, Hahn moved to

amend his § 2255 motion under Fed. R. Civ. P. 15(a) to include evidence that the

state judge who authorized the search warrant in this case had been arrested for

drunk driving and possessing a controlled substance. On July 13, Hahn filed

another motion to amend, arguing that only the jury, and not the judge, had

authority to determine whether his conviction for possessing a firearm in

furtherance of maintaining a place to manufacture marijuana was a “second or

subsequent conviction” under § 924(c)(1)(C). The district court treated the

motions as successive attempts to secure § 2255 relief and transferred them to this

court.

         Hahn appealed. W e issued a certificate of appealability to consider Hahn’s

§ 924(c)(1) issues.




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                                    D ISCUSSION

      “W e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Orange, 447 F.3d 792,

796 (10th Cir. 2006).

                               I. The Rule of Lenity

      “If a statute is ambiguous, the rule of lenity indicates that courts should

interpret it in favor of the defendant.” United States v. M ichel, 446 F.3d 1122,

1135 (10th Cir. 2006). Lenity is only available, however, if “there is a grievous

ambiguity or uncertainty in the language and structure of a provision.”

Id. (quotation omitted).

      H ahn argues that “it is not clear that Congress intended to prescribe two

punishm ents for the unitary possession of a firearm in furtherance of two

predicate drug trafficking offenses that were spatially and temporally co-

extensive.” Aplt. Br. at 20. But Hahn made that same argument during his direct

appeal, and we rejected it, stating that § 924(c)(1)’s sentencing enhancement

applies “even if possession of a firearm occurs in connection with a single

criminal episode.” Hahn, 38 F. App’x at 555. A § 2255 motion generally cannot

be used, absent an intervening change in circuit law, to raise an argument that was

resolved on direct appeal. United States v. Prichard, 875 F.2d 789, 791 (10th Cir.




                                         -5-
1989). 1 Hahn does not claim in his appellate brief any change in this circuit’s law

that would justify revisiting the ambiguity issue in this case.

                                II. Double Jeopardy

      The Fifth Amendment’s Double Jeopardy Clause prohibits “(1) a second

prosecution for the same offense after acquittal, (2) a second prosecution for the

same offense after conviction, and (3) multiple punishments for the same

offense.” Warnick v. Booher, 425 F.3d 842, 847 (10th Cir. 2005) (quotations

omitted). Hahn states, without any discussion or analysis, that “imposing two,

consecutive sentences” violates “his right to be free from being placed twice in

jeopardy for the same offense of carrying a firearm.” Aplt. Br. at 44. A litigant

who mentions a point in passing but fails to support it with pertinent authority

generally forfeits the point. United States v. Callwood, 66 F.3d 1110, 1115 n.6




1
       Hahn seeks to avoid the procedural bar by characterizing his present
ambiguity argument as a challenge to § 924(c)(1)(A ) and his former ambiguity
argument as a challenge to § 924(c)(1)(C). But no such distinction appeared in
his direct appeal brief. And while this court announced the general issue on
direct appeal as whether one of H ahn’s firearm convictions could be treated as a
“second or subsequent conviction,” Hahn, 38 F. App’x at 554 (citing 18 U.S.C.
§ 924(c)(1)(C)), the court’s analysis did not involve that language. Rather, the
court’s analysis focused on the “the underlying drug crimes,” id., unmistakably
referring to § 924(c)(1)(A ). M oreover, the Second Circuit case Hahn presently
describes as “succinctly explain[ing] the distinct basis for [the] 2255 motion,”
Aplt. Br. at 24, was the centerpiece of Hahn’s ambiguity argument on direct
appeal, Aplt. App. at 78-81 (citing United States v. Finley, 245 F.3d 199 (2d Cir.
2001)). As far as we can tell, H ahn’s ambiguity arguments are identical.

                                         -6-
(10th Cir. 1995) (quotation omitted). M oreover, Hahn’s double jeopardy point is

procedurally barred, either because it w as resolved on direct appeal, see

Prichard, 875 F.2d at 791, or because Hahn failed to mention it in his direct

appeal brief, see United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). Despite

Hahn’s failure to make a double jeopardy argument on direct appeal, this court

reached the issue in deciding whether § 924(c)(1) supported Hahn’s second

firearm sentence. See Hahn, 38 F. App’x at 555.

      Hahn attempts to avoid only the Cox bar. Assuming that we may overlook

the Prichard bar on the basis that such a bar cannot be imposed without the

litigant presenting the issue that is decided on direct appeal, Hahn may avoid the

Cox procedural bar by showing cause and prejudice, as from ineffective assistance

of counsel, or by showing a fundamental miscarriage of justice if the claim is not

considered. Cox, 83 F.3d at 341. Hahn argues that his appellate counsel was

ineffective.

      In order to prevail, Hahn must demonstrate that his counsel’s failure to

argue double jeopardy on direct appeal was deficient performance and prejudicial.

See M allicoat v. M ullin, 426 F.3d 1241, 1248-49 (10th Cir. 2005), cert. denied,

126 S. Ct. 2356 (2006). The omission of a meritless issue on appeal will not

constitute deficient performance. Cargle v. M ullin, 317 F.3d 1196, 1202 (10th

Cir. 2003) If Hahn’s counsel on direct appeal had asserted a double jeopardy

challenge, it would have failed under Sturmoski, 971 F.2d at 461, which upheld

                                         -7-
two convictions for possessing only one firearm in the course of (1) maintaining a

place to manufacture drugs and (2) attempting to manufacture drugs. In

Sturmoski, this court reasoned that because Congress intended multiple

convictions and punishments for the two underlying drug crimes, two consecutive

§ 924(c)(1) sentences could be imposed without subjecting the defendant to

double jeopardy, “even though the underlying offenses [arose] out of the same

criminal episode and even though the same gun [was] paired with each underlying

offense.” Id. (citation omitted). Consequently, Hahn did not receive ineffective

assistance of counsel and he cannot avoid the Cox procedural bar.

                              III. Evidentiary Hearing

      Hahn argues that the district court abused its discretion by resolving his

§ 2255 motion without an evidentiary hearing. W e disagree. A hearing is not

required if, as in this case, “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255.

                      IV. Second or Successive § 2255 Motions

      Hahn contends that the district court abused its discretion in construing his

motion for reconsideration and motions to amend as second or successive § 2255

motions. W e disagree.

      A post-judgment motion must be treated as second or successive— and

certified by an appellate panel— if it asserts or reasserts a substantive claim to set

aside the movant’s conviction. See Gonzalez v. Crosby, 125 S. Ct. 2641, 2648,

                                          -8-
2651 (2005) (deciding the extent to which a Fed. R. Civ. P. 60(b) motion filed in

a 28 U.S.C. § 2254 proceeding should be considered a second or successive

habeas petition); United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005)

(extending Gonzalez to § 2255 motions). On the other hand, if the post-judgment

motion challenges the integrity of the § 2255 proceedings, then it is not second or

successive. See Gonzalez, 125 S. Ct. at 2648.

      Hahn’s motion for reconsideration expressed disagreement with the district

court’s reasoning. Hahn’s motions to amend presented new grounds for relief.

W e conclude that all three motions qualified as second or successive and were

properly referred to this court. See United States v. Lam bros, 404 F.3d 1034,

1036-37 (8th Cir.) (concluding that a R ule 59(e) motion was subject to

precertification because it “sought ultimately to resurrect the denial of [the]

earlier § 2255 motion”), cert. denied, 125 S. Ct. 2953 (2005); United States v.

Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000) (approving district court’s

treatment of a supplemental § 2255 motion as second or successive, rather than as

an amendment, where the motion could not relate back under Fed. R. Civ. P.

15(c) because it raised new claims). The “bar against successive § 2255

petitions” may not be avoided “by simply styling a petition under a different

name.” United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002). 2



2
      Hahn does not argue that any of the points raised in his motions to
                                                                     (continued...)

                                          -9-
      The judgment of the district court is AFFIRMED.

                                                   Entered for the Court


                                                   W ade Brorby
                                                   Circuit Judge




2
 (...continued)
reconsider or amend are certifiable as either: (1) newly discovered evidence
establishing innocence; or (2) a new rule of constitutional law, made retroactive
to cases on collateral review. See 28 U.S.C. § 2255. Nor could he, as the second
or successive proceedings in this court were dismissed for lack of prosecution.
United States v. Hahn, No. 04-2197 (10th Cir. M ar. 16, 2005) (dismissal order).

                                       -10-
