                                                                          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


                                          -4-
(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


                                        -5-
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.


                                         -6-
The motion to supplement the brief is GRANTED.

                                   Entered for the Court


                                   Paul J. Kelly, Jr.
                                   Circuit Judge




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