                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     March 26, 2008
                    UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 07-2087
          v.                                                D. N.M.
 JASON LOSSIAH,                                   (D.C. No. CIV-06-467-MV)

               Defendant - Appellant.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY
                         AND DISMISSING APPEAL


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Jason Lossiah, a federal prisoner, filed a pro se 28 U.S.C. § 2255 motion to

vacate, set aside or correct his sentence. 1 The district court, adopting the

magistrate judge’s recommendation, denied the motion. Lossiah filed a notice of



      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir.2003).
appeal with the district court and an application for a Certificate of Appealability

(COA). See 28 U.S.C. § 2253(c)(1)(B). The district court denied his application.

Lossiah renews his application for a COA with this Court and requests permission

to proceed in forma pauperis (ifp). 2 We deny a COA, but grant his request to

proceed ifp and dismiss his application.

                                I. BACKGROUND

      In 2002, Lossiah was convicted by a jury of four counts of sexual assault.

He filed a post-trial motion for acquittal as a matter of law or, in the alternative, a

new trial. The district court denied Lossiah’s motion for acquittal because it

could not “second-guess” the jury’s determination of witness credibility and,

viewing the evidence in the light most favorable to the government, determined a

rational juror could have found Lossiah guilty beyond a reasonable doubt. (R.

Vol. I, Doc. 14 at 2.) The court granted Lossiah’s motion for a new trial based on

improper admission of evidence coupled with the court’s assessment, as a

“thirteenth juror,” of the credibility of the witnesses. (Id.) Lossiah’s second trial

was declared a mistrial when the government’s expert witness cried during her

testimony. A third trial culminated in a guilty verdict on two counts. Lossiah

again filed a motion for judgment of acquittal, or in the alternative, a new trial.

The court denied this motion and sentenced Lossiah to 121 months


      2
         Lossiah did not proceed ifp below and did not file a request with the
district court to permit ifp on appeal.

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imprisonment.

      Lossiah appealed, claiming the evidence was insufficient to support his

conviction and the verdicts were inconsistent. We affirmed his conviction.

United States v. Lossiah, 129 Fed. Appx. 434 (10th Cir. 2005). His subsequent

motion for reconsideration and rehearing in this Court, as well as his petition for

writ of certiorari in the United States Supreme Court, were denied. Lossiah v.

United States, 126 S.Ct. 465 (2005).

      Lossiah filed the instant § 2255 motion on June 5, 2006, alleging his

second and third trials violated the Double Jeopardy Clause and his counsel was

ineffective in failing to raise the double jeopardy issue at the second and third

trials or on appeal. 3 The district court referred Lossiah’s motion to a magistrate

judge, who’s report and recommendation determined: (1) Lossiah’s second and

third trials did not violate the Double Jeopardy Clause because the district court

denied his motion for acquittal, and (2) counsel was not ineffective for failing to

raise a meritless issue. Lossiah objected to the magistrate judge’s conclusions.

After de novo review, the district court adopted the magistrate judge's

recommendations and denied Lossiah’s § 2255 motion and his later application

      3
         Lossiah dos not claim he objected or opposed the declaration of mistrial at
his second trial or that it has any effect on his double jeopardy argument. See
Walck v. Edmondson, 472 F.3d 1227, 1236 n.4 (10th Cir. 2007) (“Where a
defendant requests or consents to a mistrial, there is no bar to retrial unless the
government acted in a manner intended to induce a request for mistrial.”).
Rather, he maintains the ultimate result of the first trial foreclosed the second and
third trials.

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for a COA.

                                II. DISCUSSION

      A COA is a jurisdictional pre-requisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). We will issue a COA only if Lossiah makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] 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). We review the district court’s factual findings for clear

error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282

(10th Cir. 2001).

      “The Double Jeopardy Clause protects defendants against (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.” Anderson v. Mullin, 327 F.3d 1148, 1153 (10th Cir. 2003) (quotations

omitted). “Before the clause is implicated, however, some event, such as an

acquittal, must terminate the original jeopardy.” Id. Lossiah insists that, because

the district court used the words “insufficient evidence” when granting his new

trial, it was a judgment of acquittal. As recognized by the magistrate judge and

the district court, however, his request for acquittal was flatly denied. The

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court’s grant of a new trial is not the equivalent of an acquittal terminating the

original jeopardy. See Tibbs v. Florida, 457 U.S. 31, 42 (1982) (A judge’s

disagreement with a jury’s resolution of conflicting evidence does not have the

same force as an acquittal.) As the Supreme Court observed:

      A reversal [based] on [the court’s assessment of conflicting
      evidence], unlike a reversal based on insufficient evidence, does not
      mean that acquittal was the only proper verdict. Instead, the
      appellate court sits as a “thirteenth juror” and disagrees with the
      jury’s resolution of the conflicting testimony. This difference of
      opinion no more signifies acquittal than does a disagreement among
      the jurors themselves. A deadlocked jury, we consistently have
      recognized, does not result in an acquittal barring retrial under the
      Double Jeopardy Clause.

Id. While the district court’s choice of the phrase “insufficient evidence” when

granting the new trial may have confused Lossiah, the jury’s verdict was not set

aside for insufficient evidence. Double jeopardy did not attach.

      Counsel is not ineffective by failing to raise a meritless issue, thereby

vitiating Lossiah’s ineffective assistance claim. United States v. Orange, 447

F.3d 792, 797 (10th Cir. 2006) (“When, as here, the basis for the ineffective

assistance claim is the failure to raise an issue, we must look to the merits of the

omitted issue. If the omitted issue is without merit, then counsel’s failure to raise

it is not prejudicial, and thus is not ineffective assistance.”) (citation omitted).




                                           -5-
     We DENY a COA and DISMISS Lossiah’s application. Lossiah’s motion

to proceed ifp is GRANTED.

                                        ENTERED FOR THE COURT


                                        Terrence L. O’Brien
                                        Circuit Judge




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