IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60098
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH CRAWFORD MIXON,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
(2:93-CR-184-B)
April 8, 1997
Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Joseph Mixon appeals the denial of his 28 U.S.C. § 2255
petition arguing that the district court erred in finding that
Bailey v. United States, 116 S.Ct. 501 (1995), did not affect his
convictions for manufacturing marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) & 841(b)(1)(B), possession with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D),
and “using” a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1). We reverse Mixon’s
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th cir. R. 47.5.4.
conviction under 18 U.S.C. § 924(c) only, vacate his sentence, and
remand to the district court for resentencing on Mixon’s remaining
convictions.
I.
On June 17, 1993, Mississippi Bureau of Narcotics (MBN) aerial
surveillance revealed marijuana plants growing on property owned by
Joseph Mixon. Before searching the property, MBN agents contacted
Mixon and asked him to be present during the search. After
obtaining a search warrant and meeting Mixon, MBN agents commenced
a search of the property. After Mixon unlocked a house on the
property, the agents advised him of his rights and asked him if
there were any weapons in the house. Mixon said he had a loaded
gun in the bedroom. The search revealed a loaded .380 semi-
automatic pistol, a loaded .38 revolver, two .22 caliber revolvers,
over 6 kilograms of packaged marijuana, and 308 marijuana plants.
Mixon was arrested and charged with manufacture of in excess
of 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), possession of marijuana with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(D), and using
and carrying four handguns during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1). The jury
convicted him on all counts. On direct appeal, this court denied
Mixon’s challenge to the sufficiency of the evidence on all counts.
On January 4, 1996, Mixon filed a motion under 28 U.S.C. § 2255,
arguing that the evidence presented at trial was insufficient to
2
sustain his conviction after Bailey and that the evidence and
instructions regarding the firearms offense prejudiced his defense
and denied him a fair trial on the remaining drug trafficking
charges. The district court denied the motion on January 17, 1996.
Mixon timely filed a notice of appeal on February 7, 1996.
II.
A.
Before proceeding to the merits of Mixon’s appeal, we must
determine whether he is properly before this court. On April 24,
1996, provisions of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“the Act”),
became effective. The Act amended 28 U.S.C. § 2253 to require
petitioners under 28 U.S.C. § 2255 to obtain a certificate of
appealability before proceeding in this court with a challenge to
the denial of relief.1 The Act also requires a certificate of
appealability for petitions under 28 U.S.C. § 2254. Before the Act
became effective, § 2254 petitioners were required to obtain a
certificate of probable cause, which this court has found to be
equivalent to a certificate of appealability. Drinkard v. Johnson,
97 F.3d 751, 756 (5th Cir. 1996)(petition for cert. filed January
6, 1997). No parallel requirement existed for § 2255 petitioners
1
To receive a certificate of appealability, a petitioner must
demonstrate a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253.
3
before the Act; once they filed their appeal, they were properly
before this court.
Mixon filed his notice of appeal before the effective date of
the Act and had therefore completed all the steps required to
invoke this court’s review. To require a certificate of
appealability from him now would condition his right to review
after it had already been invoked. See Brown v. Cain, 104 F.3d
744, 748-49 (5th Cir. 1997)(finding that a § 2254 petitioner who
had already obtained a certificate of probable cause need not
obtain a certificate of appealability). We may therefore proceed
to the merits of Mixon’s appeal.
B.
On appeal, the government concedes that Mixon’s conviction
under 924(c)(1) should be reversed in light of Bailey. Mixon
argues that the faulty 924(c)(1) instruction and the presentation
of evidence of the presence of guns prejudiced his right to a fair
trial on the drug trafficking counts. Mixon claims that the
evidence connecting him to the marijuana operation was weak and
that the jury therefore must have used his ownership of the weapons
to overcome any doubt they had about his innocence.
Evidence of the guns would have been properly admitted into
evidence even without the 924(c)(1) charge. See United States v.
Martinez, 808 F.2d 1050, 1056-57 (5th Cir. 1987), cert. denied, 481
U.S. 1032 (1987)(“firearms are ‘tools of the trade’ of those
engaged in illegal drug activities and are highly probative in
4
proving criminal intent”(citation omitted)). Therefore, Mixon has
identified no reason for this court to overturn his convictions for
manufacturing and possession with intent to distribute marijuana.
III.
For the reasons stated above, we reverse Mixon’s conviction
under 18 U.S.C. § 924(c)(1), vacate his sentence, and remand to the
district court for resentencing on the possession and manufacturing
counts.
5