                                                                           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




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