F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 05-7068
v. (D.C. Nos. 04-CV-106-P and
00-CR-21-P)
RALPH DOUGLAS GANN, (E.D. Okla.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
Ralph Douglas Gann, an inmate appearing pro se, seeks to appeal from the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. In order to merit a certificate of appealability (“COA”), Mr.
Gann must make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To
make such a showing, he must demonstrate that reasonable jurists would find the
district court’s resolution of the constitutional issue contained in his motion
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we
determine that Mr. Gann has not made such a showing, we deny a COA and
dismiss the appeal.
A jury convicted Mr. Gann of maintaining a place for the purpose of
manufacturing, distributing and using methamphetamine (Count III), 21 U.S.C.
§ 856(a)(1) & 18 U.S.C. § 2; and possession of a firearm by a person who has
been convicted of a felony (Count X), 18 U.S.C. § 922(g)(1) & § 2. He was
sentenced to the statutory maximum of 240 months on Count III, and 120 months
on Count X, with the sentences running consecutively, with three years of
supervised release on each count running concurrently thereafter. His conviction
and sentence were affirmed on direct appeal. United States v. Gann, 58 Fed.
Appx. 792 (10th Cir. 2003). The Supreme Court denied certiorari. Gann v.
United States, 538 U.S. 954 (2003).
In his § 2255 motion, Mr. Gann claimed ineffective assistance of counsel
based on a failure (1) to challenge the drug quantities contained in the
presentence report (“PSR”), (2) to argue his lack of participation in the
underlying controlled substance offense so as invoke a more lenient sentencing
guideline, (3) to argue successfully that his sentences should not run
consecutively, and (4) to object to the indictment and the jury instructions based
on the indictment’s specifying two different locations in Count III. Mr. Gann
later supplemented his § 2255 motion contending that (5) his Sixth Amendment
rights were violated given Blakely v. Washington, 542 U.S. 296 (2004).
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In seeking a COA, Mr. Gann relies upon issues (1), (2) and (4). To prevail
on an ineffective assistance claim, Mr. Gann must show deficient performance by
counsel and prejudice from counsel’s error or omission. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Concerning issue (1), Mr. Gann argues
that counsel’s ineffectiveness resulted in the district court failing to exclude
waste water from the drug quantity calculation in accordance with U.S.S.G.
§ 2D1.1, n.1 (2000). The district court rejected this for lack of a factual
predicate: the Pre-Sentence Report (“PSR”) derived the quantity from
methamphetamine in powder form and liquid methamphetamine. R. Doc. 10 at 6;
see also R. Doc. 4 at 6. This claim is not reasonably debatable.
As for issue (2), although couched as an ineffective assistance claim, the
district court’s resolution is not reasonably debatable because this court rejected
the idea that Mr. Gann was a non-participant that could not be held responsible
for the drug quantities in the PSR. Gann, 58 Fed. Appx. at 799-800. Mr. Gann
cannot demonstrate prejudice in an ineffectiveness claim because this court has
rejected the substantive issue on the merits. See United States v. Warner, 23 F.3d
287, 291 (10th Cir. 1994) (ordinarily, matters rejected on direct appeal are not
proper grounds for § 2255 relief).
Finally, Mr. Gann argues that counsel should have objected to the
indictment on Count III and the jury instructions because the indictment charged
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that he maintained a place for manufacturing, distributing or using
methamphetamine in two locations. He contends that the two locations should
have been in separate counts, and the jury instructions pertaining to Count III did
not require specification of one or both locations, thereby depriving him of his
Fifth Amendment rights and a unanimous verdict. R. Doc. 1 at 13. According to
Mr. Gann, “[h]ad the jury been instructed that they must have a unanimous verdict
on both places, it might have resulted in only the one where the firearm was not
at, which would have resulted in an acquittal of Count 10.” Aplt. Br. at 13.
An indictment is duplicitous if it charges two or more separate offenses in
the same count. United States v. Haber, 251 F.3d 881, 888 (10th Cir. 2001). The
proper way to challenge a duplicitous indictment is by a pretrial motion to elect.
United States v. Henry, 504 F.2d 1335, 1338 (10th Cir. 1974). Alternatively,
specific unanimity instructions may cure a duplicitous indictment. In plain error
challenges, we have held that, absent a realistic possibility of confusion, a general
unanimity instruction is adequate to tell the jury that it must be unanimous on
underlying factual specifications. United States v. Phillips, 869 F.2d 1361, 1366-
67 (10th Cir. 1988) (collecting cases).
The issue here is whether maintaining each location for a prohibited
purpose constitutes separate offenses, or are merely different means of
committing a single offense. See Richardson v. United States, 526 U.S. 813, 816
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(1999); United States v. Weller, 238 F.3d 1215, 1219-20 (10th Cir. 2001). The
law of the Tenth Circuit is clear: where two or more acts could be charged as
separate counts but are part of the same scheme or course of conduct, they are not
necessarily duplicitous and may be charged in one count. See United States v.
Jaynes, 75 F.3d 1493, 1502-1503 (10th Cir. 1996); United States v. Browning,
Inc., 572 F.2d 720, 725-26 (10th Cir. 1978). That seems to apply here: in
describing the situation on direct appeal, we noted that this “was a ‘family
business[]’ involving Doug Gann, Doss Gann and Irene Gann, and others, at both
the Ridge Drive and Chicken Creek properties.” Gann, 58 Fed. Appx. at 798.
Though not determinative of the duplicity issue, we found ample evidence that
Mr. Gann maintained both locations for the manufacture of methamphetamine
(Count III). Id. at 796-99; United States v. Ramirez, 273 F.3d 903, 915 (9th Cir.
2001) (sufficiency does not cure duplicity).
Regardless of whether the duplicity issue is reasonably debatable, what is
not reasonably debatable is that Mr. Gann cannot show prejudice. Mr. Gann
claims he was prejudiced by counsel’s failure to argue duplicity based upon the
potential for an acquittal on the firearms count (Count X). Mr. Gann theorizes
that had the jury been given a specific instruction on unanimity on Count III, the
jury might have convicted based solely on the Ridge Drive location, and decided
to acquit on Count X which involved the firearm found at the Chicken Creek
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location. This assumes a legal nexus between the two counts that is absent.
Moreover, ample evidence supported the conviction on Count X, including Mr.
Gann’s stipulation concerning the prior felony conviction, as well as his presence
near the gun. Gann, 58 Fed. Appx. at 798. We do not think the prejudice prong
on an ineffective assistance claim is reasonably debatable–in assessing prejudice,
we must presume that a jury would act rationally and consider the evidence
pertaining to each count. See Strickland, 466 U.S. at 695. Thus, Mr. Gann has
not shown a reasonable probability that, but for counsel’s alleged error, the result
of the proceeding would have been different.
Mr. Gann has filed a motion for leave to supplement his brief based on
Dodd v. United States, 125 S. Ct. 2478 (2005). That case held that the one-year
limitation period of 28 U.S.C. § 2255, ¶ 6(3), runs from the date the Supreme
Court recognizes a right and declares it retroactive, not the date on which a lower
federal court applies the right retroactively. Dodd, 125 S. Ct. at 2482. This does
not alter the conclusion that Blakely v. Washington and Booker v. United States,
do not apply retroactively on collateral review. United States v. Bellamy, 411
F.3d 1182, 1186-88 (10th Cir. 2005). Thus, Mr. Gann’s claim that he has until
January 12, 2006, to preserve his Booker contentions is without merit because the
Supreme Court has not declared Booker to be retroactive.
Accordingly, we DENY the application for COA and DISMISS the appeal.
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The motion to supplement the brief is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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