Opinion
CIVIL 1:21-CV-774
07-25-2022
WILLIAM BENJAMIN BROWN, Petitioner v. WARDEN MACKENBURD, Respondent
Wilson, Judge
AMENDED REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Introduction
William Brown, a federal prisoner housed in the United States Penitentiary, Lewisburg, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This is Brown's third § 2241 petition, his first two petitions having been dismissed in other jurisdictions. In this petition, Brown seeks relief from his 2011 guilty plea to a superseding indictment in Southern District of Georgia, which charged him with a violation of the Sex Offender Registration and Notification Act (“SORNA”) for his failure to register as a sex offender, and a violation of 18 U.S.C. § 922(g) for his possession of firearms and ammunition by a prohibited person. These charges stemmed from Brown's previous convictions in Michigan state court for rape and breaking and entering in 1971, 1975, and 1981, for which Brown served more than 25 years in state prison.
This petition was initially filed in the District of South Carolina but was subsequently transferred to the Middle District of Pennsylvania upon Brown's transfer to USP Lewisburg.
After consideration, and for the reasons set forth below, we recommend that this petition be dismissed.
II. Statement of Facts and of the Case
In 2011, William Brown pleaded guilty to a violation of SORNA for his failure to register as a sex offender, and a violation of 18 U.S.C. § 922(g) for his possession of firearms and ammunition by a prohibited person and was sentenced to a term of 180 months in prison. At the time of his guilty pleas Brown had spent more than 25 years in prison on charges of rape and breaking and entering, arising from a string of rapes and break-ins committed by Brown in 1971, 1975, and 1981. Following his release from prison, Brown moved to Georgia with his wife, but he failed to register as a sex offender. Accordingly, Brown was indicted for the SORNA violation, and a district judge in the Southern District of Georgia issued a search warrant for his residence. Upon a search of his residence, the Deputy United States Marshals found three firearms and ammunition, and Brown was arrested. He was then charged in a superseding indictment with possession of firearms and ammunition by a prohibited person.
Following his guilty plea and sentencing, Brown appealed his 180-month sentence to the Eleventh Circuit, and the Court of Appeals dismissed Brown's appeal based on the appeal waiver contained in his plea agreement. Brown then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In his motion, Brown argued that upon his release from state prison for his state convictions, he was no longer a sex offender or a felon because Michigan law restored his rights after his sentence had been served. The court dismissed Brown's § 2255 motion, reasoning that Brown had clearly and unequivocally waived his right to appeal in his plea agreement. See Brown v. United States, 2013 WL 3831649 (S.D. Ga. July 23, 2013), report and recommendation adopted 2013 WK 3967352 (S.D. Ga. Aug. 1, 2013). The Eleventh Circuit denied Brown's request for a certificate of appealability.
Brown then filed his first petition under 28 U.S.C. § 2241 for habeas relief, asserting that he was actually innocent of the federal charges to which he pleaded guilty because Michigan law had restored his rights at the time of the superseding indictment. He also argued that his failure to register conviction violated the Ex Post Facto clause of the Constitution. The district court dismissed his petition on the grounds that Brown failed to demonstrate how his claims, which were claims that are typically brought in a § 2255 motion, were properly brought pursuant to § 2241. Brown v. Mansukhani, 2015 WL 2452768, at *5-6 (D.S.C. May 22, 2015). On this score, the court reasoned that Brown failed to demonstrate a substantive change in the law that would permit him to seek relief under § 2241, and further, failed to advance a viable claim of “actual innocence.” Id., at *1. The Fourth Circuit Court of Appeals affirmed the dismissal of Brown's § 2241 petition. Brown v. Mansukhani, 621 Fed.Appx. 200 (4th Cir. 2015).
In May 2016, Brown sought leave from the Eleventh Circuit to file a second or successive § 2255 motion. The Eleventh Circuit denied his request, but before the Eleventh Circuit made this decision, Brown filed a second or successive § 2255 motion. Brown v. United States, 2016 U.S. Dist. LEXIS 101793 (S.D. Ga. Aug. 2, 2016). In this motion, he again raised the same argument that his civil rights had been restored by Michigan law prior to the federal indictment. This motion was dismissed by the district court. Id.
In 2017, Brown filed a second petition under § 2241, again claiming that he was actually innocent of the crimes to which he pleaded guilty in 2011. Brown presented almost identical arguments to that of his first petition, asserting that his civil rights had been restored following his release from prison, and thus he was not a sex offender or a prohibited person after his release. The district court adopted the magistrate judge's Report and Recommendation and dismissed Brown's petition. Brown v. Mansukhani, 2017 WL 9324772 (D.S.C. July 27, 2017) report and recommendation adopted Brown v. Mansukhani, 2017 WL 3725318 (D.S.C. Aug. 30, 2017). The court first found that Brown had not shown a change in the substantive law since his direct appeal but prior to his § 2255 motion, as Brown was convicted pursuant to the federal SORNA law, not the Michigan Sex Offenders Registration Act, which Brown argued violated the Ex Post Facto clause. Id. at *3-4.
Moreover, and significant to the claims Brown brings in the instant petition, the court held that Brown failed to state a viable claim of “actual innocence” with respect to his claims that his civil rights were restored prior to the date he was indicted. Id. at *4. On this score, the court noted:
Petitioner argues that pursuant to United States v. Tait, 202 F.3d 1320 (11th Cir. 2000), Michigan law provides for all key civil rights to be restored to all convicted felons following release from custody and completion of probation. However, in Tait, the Eleventh Circuit noted that even if civil rights are restored, a petitioner does not automatically qualify for the exemption in § 921(a)(2), because this provision:
[C]ontains an “unless” clause: the restoration of civil rights exempts a convicted felon from the prohibition against possessing a firearm “unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms.” 18 U.S.C. § 921(a)(20).
Tait, 202 F.3d at 1322. “[T]he law of the State of conviction, not federal law, determines the restoration of civil rights.” Caron v. United States, 524 U.S. 308, 316 (1998). Hence, to the extent that Petitioner had a past conviction of a specified felony (as discussed above), he has not alleged
that he had applied for and received the restoration of those rights prior to the criminal behavior of which he now stands convicted, and thus has failed to demonstrate “actual innocence” of the 18 U.S.C. § 922(g)(1) charge. See, e.g., U.S. v. Samonek, Criminal No. 09-20225, Civil No. 12-14703, 2014 WL 2931829 (E.D. Mich. June 30, 2014).
Moreover, even if Petitioner does not have a specified felony as a past conviction, Michigan law generally restores a felon's right to possess firearms three years after the felon completes his term of imprisonment, conditions of probation, and finishes paying his fines. Mich. Comp. Laws Ann. § 750.224f(1). However, three years had not passed from the time Petitioner completed his state court term(s) of imprisonment (Petitioner states he completed his sentence on March 17, 2008-see ECF No. 1 at 3) and the superceding [sic] indictment on the federal charges in question (on March 3, 2011, as discussed above), such that he cannot show that his right to possess firearms had been restored. By its very implication, Mich. Comp. Laws § 750.224f stands for the proposition that “even after a person's civil rights have been restored, Michigan law restricts a convicted person's right to possess firearms for a period of time after the sentence imposed for a particular crime has been served.” United States v. Cooper, No. 08-20464, 2012 WL 12706, at *4 (E.D. Mich. Jan. 4, 2012), quoting Melton v. Hemingway, 40 Fed.Appx. 44, 45 (6th Cir. 2002).Brown, 2017 WL 9324772, at *5 (footnote omitted). Ultimately the court dismissed the petition without prejudice, noting that Brown could file a second motion under § 2255 upon receiving permission from the appropriate court to do so. Id. at *6, n.8. The Fourth Circuit affirmed the dismissal of Brown's petition. Brown v. Mansukhani, 712 Fed.Appx. 320 (4th Cir. 2018).
Instead, on August 22, 2019, Brown filed the instant petition for writ of habeas corpus. (Doc. 1). In his petition, Brown advances the same arguments raised in his previous petitions-that his civil rights were restored under Michigan law after he was released from prison. In this third petition, he additionally asserts that the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), supports his position that his conviction for possession of a firearm or ammunition is illegal because he did not know he was in a category of persons prohibited from possessing a firearm or ammunition. Thus, Brown contends that he was not aware at the time of this firearms possession conviction that he had previously been convicted of crimes punishable by imprisonment for more than one year. Remarkably, Brown advances this assertion even though he had been incarcerated for two decades on his rape and burglary convictions, an immutable fact which certainly should have alerted him to his status as a felon.
For the reasons set forth below, we conclude that while Brown's claims under Rehaif are properly brought in a § 2241 petition, this claim fails as a matter of law. We further conclude that Brown's claim that his SORNA conviction violates the Ex Post Facto clause is without merit. Accordingly, it is recommended that this petition be dismissed.
III. Discussion
The respondent first contends that Brown's claims are properly brought in a § 2255 motion, rather than a § 2241 habeas petition, and thus should be dismissed. Indeed, it is well settled that “the usual avenue for federal prisoners seeking to challenge the legality of their confinement,” including a challenge to the validity of a sentence, is by way of a motion filed under 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). See also United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999) (stating that § 2255 provides federal prisoners a means by which to bring collateral attacks challenging the validity of their judgment and sentence); Snead v. Warden, F.C.I. Allenwood, 110 F.Supp.2d 350, 352 (M.D. Pa. 2000) (finding that challenges to a federal sentence should be brought in a motion filed under 28 U.S.C. § 2255). Indeed, it is now clearly established that § 2255 specifically provides the remedy to federally sentenced prisoners that is the equivalent to the relief historically available under the habeas writ. See Hill v. United States, 368 U.S. 424, 427 (1962) (stating, “it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined”).
Therefore, as a general rule, a § 2255 motion “supersedes habeas corpus and provides the exclusive remedy” to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972). Indeed, it is clear that “Section 2241 ‘is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255.'” Gomez v. Miner, No. 3:CV-06-1552, 2006 WL 2471586, at *1 (M.D. Pa. Aug. 24, 2006) (quoting Myers v. Booker, 232 F.3d 902 (10th Cir. 2000)). Instead, § 2255 motions are now the exclusive means by which a federal prisoner can challenge a conviction or sentence that allegedly is in violation of the Constitution or federal laws or that is otherwise subject to collateral attack. See Davis v. United States, 417 U.S. 333, 343 (1974). Thus, federal inmates who wish to challenge the lawfulness of their sentences must typically file motions with the sentencing court under § 2255.
This general rule admits of only one narrowly tailored exception-a defendant is permitted to pursue relief under 28 U.S.C. § 2241 only where he shows that the remedy under § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000) (recognizing availability of § 2241 in cases where petitioners have no other means of having claims heard). The inadequacy or ineffectiveness must be “a limitation of scope or procedure . . . prevent[ing] a § 2255 proceeding from affording . . . a full hearing and adjudication of [a] wrongful detention claim.” Okereke v. United States, 307 F.3d 120 (3d Cir. 2002) (citing Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam)). “It is the inefficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle, 290 F.3d at 538-39 (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Accordingly, “[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.” Cradle, 290 F.3d at 539. Furthermore, if a petitioner improperly challenges a federal conviction or sentence under § 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In Dorsainvil, the Third Circuit held that § 2241 relief was available only in very narrow instances to a petitioner who had no earlier opportunity to challenge his conviction for conduct that an intervening change in substantive law made no longer criminal. Id. at 251. On this score, the Third Circuit has recently held that a claim under Rehaif does not fall within the purview of § 2255, as it “did not set forth a new rule of constitutional law,” and as such, a second or successive § 2255 motion based on Rehaif would be improper. In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020); see also Cartman v. Finley, 2021 WL 2682034, at *3 n. 2 (M.D. Pa. June 30, 2021) (noting the government's concession that the court had jurisdiction over the petitioner's Rehaif claim in a § 2241 petition); Guerrero v. Quay, 2020 WL 1330667, at *3 (M.D. Pa. Mar. 23, 2020) (addressing the merits of a Rehaif claim in a § 2241 petition). Accordingly, we conclude that Brown's claim under Rehaif is properly brought in this § 2241 petition.
However, when we consider the merits of Brown's Rehaif claim, it is clear that this claim fails as a matter of law and does not afford Brown habeas relief. Brown contends that after Rehaif, his conviction for a felon in possession of a firearm or ammunition is no longer valid. Thus, we must decide whether Brown was convicted of conduct that is no longer criminal in light of Rehaif. On this score, “[i]t is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). “To establish actual innocence, petitioner must demonstrate that, ‘ “ ‘in light of all the evidence,”' ‘it is more likely than not that no reasonable juror would have convicted him.'” Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (citations omitted)).
In the instant case, Brown challenges his § 922(g) conviction for possession of a firearm or ammunition by a prohibited person under Rehaif, arguing that he did not know he was in the category of persons who was prohibited from possessing a firearm. In Rehaif, the Supreme Court held that under § 922, the Government must demonstrate that the defendant “knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.Ct. at 2200. Following the Supreme Court's decision, courts in the Third Circuit have had the opportunity to consider Rehaif in the context of a violation of 18 U.S.C. § 922(g). In Cartman, 2021 WL 2682034, Judge Conner discussed the application of Rehaif to § 922(g):
Importantly, the government was not required to prove that Cartman specifically knew that he was prohibited from possessing firearms. See United States v. Boyd, 999 F.3d 171,--, slip op. at 17-18 (3d Cir. May 28, 2021) (noting that knowledge that one “could not legally possess a firearm” is “a bar far higher than the Government's actual burden” (citing Rehaif, 139 S.Ct. at 2198; United States v. Kaspereit, 994 F.3d 1202, 1208 (10th Cir. 2021)); United States v. Maez, 960 F.3d 949, 955 (7th Cir. 2020); United States v. Bowens, 938 F.3d 790, 797 (6th Cir. 2019)). Rather, under Rehaif, the government must prove that a defendant knew, at the time he possessed the firearm, that he had one of the statuses described in Section 922(g), such as a prior felony conviction. Rehaif, 139 S.Ct. at 2200.Id., at *4. Moreover, Judge Conner reiterated the Supreme Court's recognition that “demonstrating prejudice under Rehaif ‘will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons.'” Id. (quoting Greer v. United States, 141 S.Ct. 2090, 2098 (2021) (quoting United States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020)). Additionally, as Judge Rambo noted in Guerrero, “Rehaif, however, ‘did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.'” Guerrero, 2020 WL 1330667, at *4 (quoting United States v. Bowens, 938 F.3d 790, 797 (6th Cir. 2019)).
Here, we conclude that Rehaif does not afford Brown relief because Brown has not demonstrated that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him” of the § 922(g) offense. Bousley, 523 U.S. at 623. We reach this conclusion based on the simple premise recognized and reiterated by the Supreme Court-that convicted felons typically know they are convicted felons. In the instant case, there is ample evidence that Brown knew he was a convicted felon and thus was prohibited from possessing a firearm or ammunition. First, Brown pleaded guilty to the § 922(g) charge. Second, and significantly, Brown spent over a quarter century in a Michigan state prison for rape and burglary convictions. Thus, it strains credulity to believe that Brown did not know he was a convicted felon. See e.g., Cartman, 2021 WL 2682034, at *6; United States v. Howard, 2021 WL 2401392, at *3 (W.D. Pa. June 11, 2021); Guerrero, 2020 WL 1330667, at *4; see also United States v. Boyd, 999 F.3d 171, 180-81 (3d Cir. 2021) (finding on direct appeal that a failure to charge the jury on Rehaif was harmless error because there was overwhelming record evidence of Boyd's knowledge that he was a convicted felon).
Moreover, to the extent Brown continues to assert that his rights were restored under Michigan law prior to the federal indictment, the District Court in the Southern District of Georgia aptly explained why this argument is meritless:
Petitioner argues that pursuant to United States v. Tait, 202 F.3d 1320 (11th Cir. 2000), Michigan law provides for all key civil rights to be restored to all convicted felons following release from custody and completion of probation. However, in Tait, the Eleventh Circuit noted
that even if civil rights are restored, a petitioner does not automatically qualify for the exemption in § 921(a)(2), because this provision:
[C]ontains an “unless” clause: the restoration of civil rights exempts a convicted felon from the prohibition against possessing a firearm “unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms.” 18 U.S.C. § 921(a)(20).
Tait, 202 F.3d at 1322. “[T]he law of the State of conviction, not federal law, determines the restoration of civil rights.” Caron v. United States, 524 U.S. 308, 316 (1998). Hence, to the extent that Petitioner had a past conviction of a specified felony (as discussed above), he has not alleged that he had applied for and received the restoration of those rights prior to the criminal behavior of which he now stands convicted, and thus has failed to demonstrate “actual innocence” of the 18 U.S.C. § 922(g)(1) charge. See, e.g., U.S. v. Samonek, Criminal No. 09-20225, Civil No. 12-14703, 2014 WL 2931829 (E.D. Mich. June 30, 2014).
Moreover, even if Petitioner does not have a specified felony as a past conviction, Michigan law generally restores a felon's right to possess firearms three years after the felon completes his term of imprisonment, conditions of probation, and finishes paying his fines. Mich. Comp. Laws Ann. § 750.224f(1). However, three years had not passed from the time Petitioner completed his state court term(s) of imprisonment (Petitioner states he completed his sentence on March 17, 2008-see ECF No. 1 at 3) and the superceding [sic] indictment on the federal charges in question (on March 3, 2011, as discussed above), such that he cannot show that his right to possess firearms had been restored. By its very implication, Mich. Comp. Laws § 750.224f stands for the proposition that “even after a person's civil rights have been restored, Michigan law restricts a convicted person's right to possess firearms for a period of time after the sentence imposed for a particular crime has been served.” United States v. Cooper, No. 08-20464, 2012 WL 12706, at *4 (E.D. Mich. Jan. 4, 2012), quoting Melton v. Hemingway, 40 Fed.Appx. 44, 45 (6th Cir. 2002).Brown, 2017 WL 9324772, at *5 (footnote omitted). Accordingly, this claim affords Brown no relief, and his habeas petition should be denied on this ground.
Brown also asserts that he is entitled to relief because the indictment charging him with failure to register as a sex offender violated the Ex Post Facto Clause of the Constitution. He claims that there was an intervening change in the Michigan Sex Offender Registration Act (“SORA”) which rendered his conviction unconstitutional. However, as the Southern District of Georgia recognized when it dismissed this claim in Brown's prior petition, Brown was indicted pursuant to the federal SORNA laws, not Michigan state law. Brown, 2017 WL 9324772, at *3-4. Moreover, the Third Circuit has held that SORNA does not implicate the Ex Post Facto Clause. See United States v. Shenandoah, 595 F.3d 151, 158-59 (3d Cir. 2010), abrogated on other grounds by Reynolds v. United States, 565 U.S. 432 (2012); Thomas v. Blocker, 2021 WL 1392134 (M.D. Pa. April 13, 2021).
In sum, neither of Brown's claims challenging his convictions to which he pleaded guilty entitle him to relief under § 2241. Brown's Rehaif claim fails as a matter of law because there is ample evidence to show that Brown knew he was a prohibited person under § 922(g), and this his felon in possession conviction is not unconstitutional. Further, Brown's failure to register conviction under SORNA, to which he pleaded guilty, does not implicate the Ex Post Facto Clause. Accordingly, Brown's § 2241 petition should be denied.
III. Recommendation
For the reasons set forth above, it is RECOMMENDED that the Court GRANT the Respondent's Motion for Summary Judgment (Doc. 34) and DENY this petition for a writ of habeas corpus. (Doc. 1).
Petitioner is placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.