Davis v. United States

Full title: DYREHLL LESHAUN DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court: United States District Court, Middle District of Georgia

Date published: Jul 12, 2021

4:15-CR-00019-CDL-MSH (M.D. Ga. Jul. 12, 2021)

Opinion

4:15-CR-00019-CDL-MSH 4:20-CV-00072-CDL-MSH

07-12-2021

DYREHLL LESHAUN DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

28 U.S.C. § 2255

REPORT AND RECOMMENDATION

STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

Pending before the Court are Petitioner Dyrehll Leshaun Davis's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 80) and his amended motion to vacate (ECF No. 91). For the hereinbelow reasons, the Court recommends that Petitioner's motion to vacate and amended motion to vacate be denied.

BACKGROUND

On April 15, 2015, a federal grand jury indicted Petitioner on three counts: (1) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), (2) possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Indictment 1-2, ECF No. 1. Following his arrest pursuant to this indictment, Petitioner had his initial appearance on April 29, 2015, and, through counsel, he pled not guilty. Minute Entry 1, ECF No. 10; Plea Sheet 1, ECF No. 9. Petitioner proceeded to trial, which commenced on January 4, 2016. Minute Entry 1-2, ECF No. 35.

At trial, Petitioner testified in his own defense. Trial Tr. vol. III, at 116:25-117:03, 119:07-119:10, ECF No. 71. On direct, Petitioner admitted that he previously had been convicted of felony aggravated assault in 2008. Id. at 126:22-126:24. On cross-examination, Petitioner also admitted that (1) he knew he was a convicted felon before his arrest in this case, and (2) he knew his convicted felon status prohibited him from possessing a firearm. Id. at 138:20-139:03. At the close of trial and before the jury began deliberations, Petitioner and the Government stipulated

that [Petitioner] has been convicted of a crime punishable by imprisonment for a term in excess of one year and that this fact may be presented to the jury to satisfy the convicted felon element of the violation of 18 U.S.C. § 922(g)(1) in lieu of submission to the jury of [Petitioner's] prior felony conviction.

Trial Stipulation 1-2, ECF No. 42; Trial Tr. vol. III, at 172:20-173:19.¹ Specifically, the stipulation states that Petitioner previously had been convicted of the following felonies in the Superior Court of Muscogee County, Georgia: (1) aggravated assault on March 11, 2003, and (2) aggravated assault on March 4, 2008. Trial Stipulation 1. On January 6, 2016, after a three-day trial, the jury returned a verdict finding Petitioner not guilty of possession of a firearm in furtherance of a drug trafficking crime, not guilty of possession of marijuana with intent to distribute, guilty of the lesser-included offense of possession of marijuana, and guilty of possession of a firearm by a convicted felon. Trial Tr. vol. IV, 8:16-9:14, ECF No. 72; Jury Verdict 1-2, ECF No. 38.

1 Initially, the Court intended to bifurcate Petitioner's trial by separately trying him for possession of a firearm by a convicted felon. Trial Tr. vol. III, 168:16-171:13. The Court intended to bifurcate this charge in order to avoid revealing Petitioner's prior felony convictions to the jury in the event he waived his right to testify as to the other two charges. Id. Once Petitioner took the stand in his own defense as to the first two charges, the Court unbifurcated the trial and read the § 922(g)(1) charge to the jury before reciting the parties' stipulation. Id. at 171:14-173:19.

Before sentencing, the U.S. Probation Office prepared a presentence investigation report (“PSR”) which, inter alia, listed the same felony convictions to which the parties stipulated at trial. Final PSR 8-9, 11-12, ECF No. 49. Although Petitioner objected to the calculation of his criminal history score based on these convictions, he did not object to the inclusion or nature of the convictions. See Pet'r's Objs. to Draft PSR 1-2, ECF No. 46; Sent'g Tr. 5:09-8:21, ECF No. 73. On June 21, 2016, the Court sentenced Petitioner to twelve months imprisonment for possession of marijuana, 120 months imprisonment for possession of a firearm by a convicted felon to be served concurrently, three years supervised release, and a $125 mandatory assessment. Sent'g Tr. 19:15-22:20; Am. Judgment 1-6, ECF No. 56. Petitioner appealed to the U.S. Court of Appeals for the Eleventh Circuit on June 27, 2016. Notice of Appeal 1, ECF No. 55. The Eleventh Circuit affirmed Petitioner's conviction and sentence and issued its Mandate on April 12, 2018. 11th Cir. Mandate 1, ECF No. 77; United States v. Davis, No. 16-14405, 2017 WL 4862505 (11th Cir. Oct. 27, 2018), withdrawn and aff'd on reh'g, 718 Fed.Appx. 946 (11th Cir. 2018) (per curiam).

The Court received Petitioner's pro se motion to vacate his conviction and sentence (ECF No. 80) on April 9, 2020, and his motion to appoint counsel (ECF No. 82) on May 12, 2020. Petitioner, through intended counsel, filed an amended motion to appoint counsel (ECF No. 88) on June 17, 2020. Petitioner also requested that the Court stay any ruling on his original pro se motion to vacate (ECF No. 80) until he filed an amended motion to vacate through appointed counsel. Am. Mot. to Appoint Counsel 1-3, ECF No. 88. On June 18, 2020, the Court granted Petitioner's amended motion to appoint counsel and ordered him to file an amended motion to vacate. Text-only Order, ECF No. 89. Respondent filed a response (ECF No. 90) to Petitioner's original pro se motion to vacate (ECF No. 80) on June 25, 2020. Petitioner, through counsel, filed his amended motion to vacate (ECF No. 91) on September 10, 2020. Respondent responded (ECF No. 96) on October 21, 2020, and Petitioner replied (ECF No. 97) on November 5, 2020. Petitioner's motion to vacate and amended motion to vacate are ripe for review.

DISCUSSION

Petitioner moves to vacate his conviction and sentence, arguing (1) his indictment failed to set forth the essential elements of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) in violation of the Fifth Amendment, and (2) his indictment failed to give him fair notice of the nature of this same charge in violation of the Sixth Amendment. Am. Mot. to Vacate 3-20, ECF No. 91. Respondent contends Petitioner's motion should be denied because (1) Petitioner has procedurally defaulted his claims, and (2) Petitioner fails to that he is entitled to relief on the merits of his claims. Resp. to Am. Mot. to Vacate 3-15, ECF No. 96. The Court recommends that Petitioner's claims be denied for procedural default and, in the alternative, that his claims be denied on the merits.

I. Rehaif v. United States

In support of both of his claims, Petitioner relies on the Supreme Court's decision in Rehaif v. United States, -- U.S. --, 139 S.Ct. 2191 (2019). See Am. Mot. to Vacate 3-8. In Rehaif, petitioner challenged his conviction for unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). Rehaif, 139 S.Ct. at 2194-95. 18 U.S.C. § 922(g) provides that “[i]t shall be unlawful for any person [who qualifies as a person who falls within a category listed at § 922(g)(1) to (9)] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Prior to the Supreme Court's ruling in Rehaif, in order to convict a defendant of violating 18 U.S.C. § 922(g), the Government was required to prove (1) the defendant qualified as a person prohibited from possessing a firearm among the categories listed in § 922(g), (2) the defendant knowingly possessed a firearm or ammunition, and (3) the firearm or ammunition was transported in interstate commerce. United States v. Rehaif, 888 F.3d 1138, 1143-1147 (11th Cir. 2018), rev'd, 139 S.Ct. 2191 (2019); see also United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (per curiam).

In Rehaif, the Supreme Court held that in order to convict a defendant charged with possession of a firearm in violation of § 922(g), the Government must also prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm[]”-referring to this element as “knowledge of status.” Rehaif, 139 S.Ct. at 2200. In Rehaif, the petitioner's relevant status was an alien “illegally or unlawfully in the United States[.]” 18 U.S.C. § 922(g)(5)(A). The Supreme Court “express[ed] no view . . . about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue [there].” Rehaif, 139 S.Ct. at 2200. Following Rehaif, the Eleventh Circuit has held that an indictment charging a defendant with a violation of § 922(g)(1) must allege the knowledge-of-status element of the offense, and if a defendant pleads guilty, a district court must advise the defendant of the Government's burden to prove this element. See United States v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (noting indictment under § 922(g)(1) is “erroneous” if it does not include knowledge of felon status as an element of the crime); United States v. Thomas, 810 Fed.Appx. 789, 797 (11th Cir. 2020) (“[A]s Rehaif makes plain, the district court erred when it failed to advise [the defendant] during the plea colloquy that knowledge of his status as a felon at the time of his offense was an element of his §§ 922(g) and 924(a)(2) offense that the government must prove.”).

II. Procedural Default

Respondent argues Petitioner's motion to vacate should be denied because the procedural default rule bars him from raising his Rehaif claims. Resp. to Am. Mot. to Vacate 4-9. The Court agrees and recommends that Petitioner's motion be denied on this ground.

A. Procedural Default Standards

“Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (per curiam). “This rule generally applies to all claims, including constitutional claims.” Id. “The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504 (2003). “[P]rocedural default can be excused, however, if one of the two exceptions to the procedural default rule applies. The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011); see also Lomelo v. United States, 891 F.2d 1512, 1515 n.9 (11th Cir. 1990) (“The ‘cause and actual prejudice' standard for federal habeas petitioners mirrors the standard used to evaluate collateral attacks on state convictions.” (citations omitted)).

B. Petitioner's Procedural Default of his Rehaif Claims

Here, on direct appeal of his conviction and sentence to the Eleventh Circuit, Petitioner raised four grounds for relief: (1) the Government committed prosecutorial misconduct by remarking on a photograph of Petitioner kissing a wad of cash, (2) this same remark constituted improper victim impact evidence, (3) there was insufficient evidence to support his conviction for possession of a firearm by a convicted felon, and (4) at sentencing, the trial court wrongfully used his felony aggravated assault convictions in determining that he was a career criminal. Davis, 718 Fed.Appx. at 947. As to the third claim, Petitioner argued only that there was insufficient evidence to establish his possession of the firearm. Id. at 950-52. He did not contend that the Government failed to establish that he knew (1) that he was a convicted felon, or (2) that this status barred him from possessing a firearm. He also did not challenge the sufficiency of his indictment. By contrast, in his amended motion to vacate, Petitioner raises two Rehaif claims, arguing for the first time that his indictment was insufficient under the Fifth and Sixth Amendments. Am. Mot. to Vacate 3-20. Because Petitioner failed to raise either of his Rehaif claims on direct appeal, his claims are procedurally defaulted, and he may not raise them in a motion to vacate unless he shows that an exception to the procedural default rule applies. Lynn, 365 F.3d at 1234.

C. Cause for Procedural Default and Prejudice

Petitioner argues the procedural default rule does not bar him from raising his Rehaif claims because he has shown cause for his failure to raise these claims on direct appeal and resulting prejudice. Am. Mot. to Vacate 11-20. Respondent contends Petitioner fails to show either cause or prejudice. Resp. to Am. Mot. to Vacate 4-9. The Court agrees.

1. Cause for Procedural Default

Relying on Reed v. Ross, 468 U.S. 1 (1984), Petitioner asserts that the novelty of his Rehaif claims constitutes cause to excuse his procedural default. Am. Mot. to Vacate 11-15. In Reed, the Supreme Court held “that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed, 468 U.S. at 16; see also Id. at 14-15 (“If counsel has no reasonable basis upon which to formulate a constitutional question, setting aside for the moment exactly what is meant by ‘reasonable basis,' it is safe to assume that he is sufficiently unaware of the question's latent existence that we cannot attribute to him strategic motives of any sort.” (internal citations omitted)). A claim is novel, inter alia, where “a decision may overturn a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Id. at 17.

Here, Petitioner argues there was no reasonable basis for him to challenge the Government's failure to prove knowledge of status because at the time of his conviction and sentencing, the Supreme Court had not yet decided Rehaif, and “all the courts of appeals to address the question [had] held that [§ 922(g)'s mens rea requirement] does not apply to the defendant's status.” Rehaif, 139 S.Ct. at 2210 (Alito, J., dissenting); see Am. Mot. to Vacate 12-13. The Eleventh Circuit was among those courts of appeals. See Jackson, 120 F.3d at 1229; see also Rehaif, 888 at 1143-1147, rev'd, 139 S.Ct. 2191 (2019).

In Bousley v. United States, 523 U.S. 614 (1998), however, the Supreme Court again addressed the novelty exception and held that “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” Bousley, 523 U.S. at 623 (internal quotations omitted) (citing Engle v. Isaac, 456 U.S. 107, 130 (1982)); see also Murray v. Carrier, 477 U.S. 478, 492 (1986) (“[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.”). In Bousley, although the Supreme Court had not identified the error petitioner complained of before he failed to raise it on direct appeal, the Court found that he failed to establish cause for procedural default pursuant to the novelty exception because “at the time of petitioner's plea, the Federal Reporters were replete with cases involving [similar] challenges[.]” Id. at 622 (citations omitted).

Similarly, the Eleventh Circuit has held that in determining whether a petitioner has shown cause pursuant to the novelty exception, “the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all.” Lynn, 365 F.3d at 1235. “Where a number of others had raised the claim before the petitioner failed to do so, the claim is not sufficiently novel to meet the cause requirement.” Howard v. United States 374 F.3d 1068, 1072 (11th Cir. 2004) (citations omitted). Additionally, “[t]he fact that every circuit which had addressed [an] issue had rejected the proposition that became the [Supreme Court's later] rule [on the issue] simply demonstrates that reasonable defendants and lawyers could well have concluded it would be futile to raise the issue.” McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). “[T]he Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default.” Id. at 1259 (citing Bousley, 523 U.S. at 623; Smith v. Murray, 477 U.S. 527, 535 (1996)).

Here, although binding precedent in the Eleventh Circuit at the time Petitioner appealed would have made an argument similar to the one raised in Rehaif seemingly futile, a knowledge-of-status argument was not novel. Like in Bousley, even at the time Petitioner directly appealed to the Eleventh Circuit, petitioners had regularly challenged their convictions under § 922(g)-even before Rehaif-by arguing that the Government failed to allege or prove knowledge of status. See, e.g., United States v. Young, 766 F.3d 621, 629-30 (6th Cir. 2014) (per curiam), cert. denied, __ U.S. __, 135 S.Ct. 1475 (Mem.) (2015); United States v. Butler, 637 F.3d 519, 523-25 (5th Cir. 2011) (per curiam), cert denied, 565 U.S. 1092 (Mem.) (2011); United States v. Reap, 391 Fed.Appx. 99, 103-04 (2d Cir. 2010) (per curiam), cert. denied, __ U.S. __, 131 S.Ct. 3040 (Mem.) (2011); United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999); United States v. Ballentine, 4 F.3d 504, 505-06 (7th Cir. 1993), cert. denied, 510 U.S. 1179 (Mem.) (1994); see also Bousley, 523 U.S. at 622 (finding that petitioner failed to show cause under the novelty exception where “at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges[]” similar to petitioner's); Howard, 374 F.3d at 1073 (“The existence of [courts of appeals] decisions at the time of [petitioner's] sentencing establishes that other defendants had long been raising the issue.”). Contrary to Petitioner's assertion, courts' unanimous rejection of that argument shows merely the possible futility of the argument at that time; it does not show that the argument was so novel that it constitutes cause to excuse procedural default. McCoy, 266 F.3d at 1258-59 (“The fact that every circuit which had addressed the issue had rejected the proposition that became the Apprendi rule simply demonstrates that reasonable defendants and lawyers could well have concluded it would be futile to raise the issue[, ] [but] . . . the Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default.” (citations omitted)).

In a nearly identical case, this Court found that a petitioner who did not challenge his § 922(g) indictment during his pre-Rehaif direct appeal failed to establish cause for procedural default based on the novelty exception. Brown v. United States, Nos. 4:18-cr-19-CDL-MSH, 4:19-cv-208-CDL-MSH, 2021 WL 2546466, at *3-6 (M.D. Ga. Apr. 5, 2021), recommendation adopted by 2021 WL 2544407 (M.D. Ga. June 21, 2021). Other courts in the Eleventh Circuit agree. Cardenas v. United States, Nos. 19-10183-CV-KING, 13-10013-CR-KING, 2021 WL 1078182, at *5 (S.D. Fla. Feb. 25, 2021), recommendation adopted by 2021 WL 1062229 (S.D. Fla. Mar. 19, 2021); Long v. United States, Nos. 17-00026-KD-B, 19-00452-KD-B, 2020 WL 7391292, at *7-8 (S.D. Ala. Nov. 9, 2020), recommendation adopted by 2020 WL 7395140 (S.D. Ala. Dec. 16, 2020); Gilbert v. United States, Nos. CV 119-178, CR 114-125, 2020 WL 4210632, at *8 (S.D. Ga. June 23, 2020), recommendation adopted by 2020 WL 4208240 (S.D. Ga. July 22, 2020); Dawkins v. United States, Nos. 7:16-cr-00440-LSC-SGC-1, 7:19-cv-08047-LSC, 2020 WL 3576841, at *1-3 (N.D. Ala. July 1, 2020), denying certificate of probable cause to appeal, No. 20-12840-D, 2020 WL 8270518 (11th. Cir. Dec. 1, 2020); Davis v. United States, Nos. 4:16-cr-37-CDL-MSH, 4:19-cv-69-CDL-MSH, 2020 WL 8919332, at *16 (M.D. Ga. Dec. 8, 2020), recommendation adopted by 2021 WL 1081117 (M.D. Ga. Mar. 19, 2021). These decisions square with the Eleventh Circuit's analysis of the novelty exception. See Howard, 374 F.3d at 1072; McCoy, 266 F.3d at 1258-59; Lynn, 365 F.3d at 1235. Accordingly, Petitioner fails to show cause for procedural default based on the novelty exception.

2. Resulting Prejudice

Even assuming Petitioner shows cause for procedural default, Respondent argues the procedural default rule still bars Petitioner from raising his Rehaif claims because he fails to show resulting prejudice. Resp. to Am. Mot. to Vacate 6-8; see also McKay, 657 F.3d at 1196 (requiring a petitioner to show both cause and actual prejudice to overcome procedural default). The Court agrees.²

2 Petitioner asserts that Respondent waived any argument that Petitioner cannot show actual prejudice by failing to raise it in its response (ECF No. 90) to Petitioner's original pro se motion to vacate. Am. Mot. to Vacate 15. Respondent argues it has not waived this argument, noting that Petitioner failed to cite any authority supporting his assertion. Resp. to Am. Mot. to Vacate 7 n.2. The Court agrees. First, contrary to Petitioner's assertion, in its response to Petitioner's original pro se motion, Respondent clearly argues that Petitioner's claims should be dismissed for procedural default because he “has not established cause for failing to raise any of his claims on direct appeal and has failed to show that actual prejudice resulted from the alleged error.” Resp. to Mot. to Vacate 7, ECF No. 90 (emphasis added); see also Id. at 11-13 (contending that Petitioner failed to show actual prejudice as to the merits of his claims for the same reasons). Second, Petitioner filed an amended motion to vacate (ECF No. 91) after Respondent responded to Petitioner's original pro se motion. An amended pleading generally supersedes the original pleading. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007); Fritz v. Standard Sec. Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir. 1982). Respondent has not waived its argument as to procedural default and actual prejudice because Respondent raised these arguments in response to both Petitioner's original motion to vacate and his amended motion to vacate.

Petitioner asserts that he satisfies the prejudice requirement for two reasons: (1) the alleged indictment defects constitute structural errors, and (2) he suffered actual prejudice. Am. Mot. to Vacate 15-17; Reply 4-7. First, Petitioner maintains the alleged indictment defects were structural errors which “always result in fundamental unfairness[, ]” abrogating the need for a thorough review for actual prejudice. Am. Mot. to Vacate 15-17 (citing Weaver v. Massachusetts, __ U.S. __, 137 S.Ct. 1899, 1908-11 (2017)); Reply 4-7. “Structural errors are a very limited class of errors that affect the framework within which the trial proceeds such that it is often difficult to assess the effect of the error[.]” United States v. Marcus, 560 U.S. 258, 263 (2010) (internal quotations, alterations, and citations omitted). “The existence of such defects . . . requires automatic reversal of the conviction because they infect the entire trial process.” Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (citations omitted).

The Supreme Court has already found that Rehaif errors do not fall within this limited class of errors. In Greer v. United States, __ U.S. __, 141 S.Ct. 2090 (2021), petitioners challenged omission of the knowledge-of-status element from their jury instructions and plea colloquies, and argued, inter alia, that such errors constitute structural errors. Greer, 141 S.Ct. at 2096, 2099-2100. The Supreme Court rejected this argument,

stating that discrete defects in the criminal process-such as the omission of a single element from jury instructions or the omission of a required warning from a Rule 11 plea colloquy-are not structural because they do not “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”

Id. at 2100 (quoting Neder v. United States, 527 U.S. 1, 8 (1999) (emphasis in original)). The Court held that omission of the knowledge-of-status element from a pre-Rehaif jury instruction or plea colloquy is not a structural error because it neither “affect[s] the entire framework within which the proceeding occurs[]” nor “deprive[s] defendants of basic protections without which a criminal proceeding cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Id. (internal alterations, quotations, and citations omitted).

Although Greer did not address omission of an element from an indictment, the Supreme Court's general conclusion as to Rehaif errors is couched in broad terms: “In short, Rehaif errors fit comfortably within the general rule that a constitutional error does not automatically require reversal of a conviction.” Id. (internal quotations and citation omitted). Moreover, the Eleventh Circuit, this Court, and other courts have all either found that the same reasoning applies to omission of the knowledge-of-status element from pre-Rehaif indictments or analyzed such errors under the standard of review applicable to non-structural errors. See United States v. Leonard, __ F.4th __, 2021 WL 2844904, at *5 (11th Cir. July 8, 2021); United States v. Haynes, 798 Fed.Appx. 560, 564-65 (11th Cir. 2020) (per curiam) (“[Petitioner] asserts that plain-error review does not apply to his claim because . . . the error is structural. . . . [T]hese assertions are wrong.” (citations omitted)); United States v. Price, 828 Fed.Appx. 573, 577 (11th Cir. 2020) (per curiam) (“Despite [petitioner's] claim that Rehaif error is structural, we have consistently reviewed Rehaif arguments raised for the first time on appeal for plain error.” (citing United States v. Bates, 960 F.3d 1278, 1296 (11th Cir. 2020); United States v. McLellan, 958 F.3d 1110, 1118-20 (11th Cir. 2020); United States v. Moore, 954 F.3d 1322, 1337-38 (11th Cir. 2020); United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019))); United States v. Watson, 820 Fed.Appx. 397, 400-01 (6th Cir. 2020, cert. denied, __ U.S. __, __ S.Ct. __, 2021 WL 2519237 (Mem.) (June 21, 2021); Brown, 2021 WL 2546466, at *7-8; Cardenas, 2021 WL 1078182, at *5; United States v. Jones, Nos. 4:16-cr-13/MW/MAF, 4:20-cv-379/MW/MAF, 2020 WL 5260781, at *2 (N.D. Fla. Aug. 3, 2020), recommendation adopted by 2020 WL 5260568 (N.D. Fla. Sept. 2, 2020).

While Petitioner's indictment omitted an element of § 922(g) later recognized in Rehaif, he was represented by competent counsel, proceeded to trial before an impartial judge and jury, and the jury found him guilty after considering all the evidence under the proper standards. See Neder, 527 U.S. at 9 (holding that omission of an element from a jury instruction “did not render [petitioner's] trial ‘fundamentally unfair'” because petitioner “was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to [his] defense[.]”). Petitioner does not dispute any of these facts. Nothing prevented Petitioner from arguing that § 922(g) included a knowledge-of-status element and presenting evidence to show that he was not a convicted felon or that he lacked knowledge of that status. He fails to show prejudice based on a structural error.

Second, Petitioner contends he suffered actual prejudice because the alleged indictment defects affected all subsequent proceedings in his criminal case. Am. Mot. to Vacate 17-20. “To [overcome procedural default] on a cause and prejudice theory, a petitioner must show ‘actual prejudice.'” Fordham v. United States, 706 F.3d 1345, 1350 (11th Cir. 2013) (citation omitted). To establish actual prejudice, a petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); see also Ward v. Hall, 592 F.3d 1144, 1178 (11th Cir. 2010). “The actual prejudice standard is more stringent than the plain error standard.” Granada v. United States, 990 F.3d 1272, 1288 (11th Cir. 2021) (internal quotations and citation omitted).

Petitioner argues that his defective indictment likely affected (1) the grand jury's finding of probable cause that he violated § 922(g)(1), (2) the Magistrate Judge's initial bond determination, (3) trial counsel's investigation of Petitioner's prior felonies, (4) the parties' decision to stipulate to Petitioner's prior felony convictions, (5) the trial judge's instructions to the jury as to the elements of the offense, and (6) the jury's findings as to the sufficiency of the evidence to convict Petitioner of violating § 922(g)(1). Am. Mot. to Vacate 17-18 (“Consider just some of the ways a missing element impacts a prosecution[.]”). In support, he cites, inter alia, Eleventh Circuit cases concerning constructive amendment of indictments. Id. at 19-20 (citing United States v. Madden, 733 F.3d 1314, 1318 (11th Cir. 2013); United States v. Ross, 131 F.3d 970, 980 (11th Cir. 1997)).

Petitioner fails to show prejudice based on these unsubstantiated speculations as to the effects of the indictment's omission of the knowledge-of-status element. He does not particularize these hypothetical examples to his case, and his speculations are particularly unavailing because Petitioner stipulated to his prior felony convictions. See Trial Stipulation 1-2; Trial Tr. vol. III, at 172:20-173:19. Petitioner's examples of the “possibility of prejudice” arising from a defective indictment are insufficient to establish actual prejudice. Frady, 456 U.S. at 170 (emphasis in original). Petitioner fails to show that the defective indictment “worked to [Petitioner's] actual and substantial disadvantage[.]” Id. (emphasis in original).

Petitioner, however, also argues that he suffered prejudice because he would not have taken the stand and testified had his indictment included the knowledge-of-status element. Am. Mot. to Vacate 17-19; see Trial Tr. vol. III, at 126:22-126:24, 138:20-139:03. The Eleventh Circuit has “consult[ed] the entire record” in evaluating whether petitioners could show actual prejudice based on their Rehaif claims. Moore, 954 F.3d at 1337; see also Greer, 141 S.Ct. at 2098.

Even assuming Petitioner would not have taken the stand and testified as to his knowledge of his convicted felon status and concomitant knowledge that he was prohibited from possessing a firearm, he still fails to establish actual prejudice. In Greer, the Supreme Court explained that

[i]n a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily knows he is a felon. Felony status is simply not the kind of thing that one forgets.

Greer, 141 S.Ct. at 2097 (internal quotations and citation omitted). Accordingly, the Court recognized that “absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.” Id. “In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability' that, but for the Rehaif error, the outcome of the district court proceedings would have been different.” Id.; see also Granada, 990 F.3d at 1288 (“The actual prejudice standard is more stringent than the plain error standard.” (internal quotations and citation omitted)).

“[A]s the Fifth Circuit [has] aptly stated, demonstrating prejudice under Rehaif ‘will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons.'” Greer, 141 S.Ct. at 2098 (quoting United States v. Lavalais, 960 F.3d 180, 184 (2020)). The Eleventh Circuit has recognized the same. Leonard, 2021 WL 2844904, at *6 (“[M]ost people convicted of a felony know that they are felons . . . .”). Like the petitioners in Greer, Petitioner had been convicted of multiple felonies-specifically aggravated assault in both 2003 and 2008-before his arrest for possession of a firearm by a convicted felon. Compare Final PSR 8-9, 11-12 with Greer, 414 S.Ct. at 2097 (“Before their respective felon-in-possession offenses, both [petitioners] had been convicted of multiple felonies.”). For the 2003 conviction, Petitioner was sentenced to five years, and he served thirty-four months. Final PSR 8-9. For the 2008 conviction, he was sentenced to five years, he served less than one year, but his probation was revoked twice. Id. at 11-12. Petitioner's PSR listed these convictions, and Petitioner did not object to their inclusion or the nature of the convictions. Id. at 8-9, 11-12.

As courts-including this Court-have consistently recognized, those convictions undermine Petitioner's claim of actual prejudice. See Greer, 414 S.Ct. at 2097-98 (“Those prior convictions are substantial evidence that they knew they were felons.”); Leonard, 2021 WL 2844904, at *6 (“[T]he record is clear that [defendant] had more than one prior conviction. . . . We have no doubt that a jury would recognize that too.” (internal citation omitted)); Brown, 2021 WL 2546466, at *9; Richardson v. United States, Nos. 2:17-cr-11-SPC-MRM, 2:20-cv-305-SPC-MRM, 2021 WL 719613, at *4 (M.D. Fla. Feb. 24, 2021). Moreover, Petitioner appears to state that even before he took the stand, “[a] part of his trial strategy was to stipulate to his felon status.” Am. Mot. to Vacate 18. He, indeed, entered this stipulation and acknowledged his prior felony convictions. Trial Stipulation 1-2; Trial Tr. vol. III, at 172:20-173:19.

Importantly, even disregarding both Petitioner's trial testimony and stipulation, he does not allege that he could present any evidence demonstrating that he did not know he was a convicted felon or that he did not know he was prohibited from possessing a firearm. See Greer, 141 S.Ct. at 2098 (“Importantly, on appeal, neither [petitioner] has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms.”); Leonard, 2021 WL 2844904, at *6 (“[Defendant], for his part, gives us no reason to conclude [that a jury would not have found that he knew he was a convicted felon]-he does not even attempt to argue that he did not know he was a felon at the time he possessed the gun or that he would have offered the jury evidence to prove this point.”). Therefore, even assuming Petitioner has shown cause for procedural default, he has not established prejudice to avoid the procedural default rule because there was ample evidence showing that he knew he was a convicted felon, including his prior felony convictions and his confinement for more than one year.

D. Miscarriage of Justice or Actual Innocence

Although Petitioner does not raise an actual innocence or miscarriage of justice exception to procedural default, Respondent also argues that Petitioner fails to show that this exception applies. Resp. to Am. Mot. to Vacate 8-9; see also Bousley, 523 U.S. at 623-24 (remanding motion to vacate to determine whether petitioner could show actual innocence to excuse procedural default after petitioner failed to show cause and prejudice based on the novelty exception). The Court agrees.

“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); see also McKay, 657 F.3d at 1196. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404 (1993). “‘Actual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24 (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.” Id. at 623 (internal quotations and citations omitted).

Here, as explained above, Petitioner had previously been convicted of multiple felonies before his arrest for possession of a firearm by a convicted felon. Final PSR 8-9, 11-12. Importantly, he does not allege that he lacked knowledge of his status of convicted felon. Thus, Petitioner cannot credibly argue that he did not know he was a convicted felon when he committed the federal offenses. Accordingly, he fails to show actual innocence. Because Petitioner procedurally defaulted his Rehaif claims by failing to raise them on direct appeal and because he has not shown that an exception to the procedural default rule applies, he is barred from raising his Rehaif claims in his motion to vacate. He raises no other claims for relief in his amended motion to vacate, and, therefore, the Court RECOMMENDS that his amended motion to vacate (ECF No. 91) be DENIED for procedural default.

III. Petitioner's Amended Motion to Vacate

Respondent argues that even if the Court does not apply the procedural default rule and reaches the merits of Petitioner's Rehaif claims, his amended motion to vacate should be denied on the merits. Resp. to Am. Mot. to Vacate 9-15. The Court agrees and, in the alternative, recommends that Petitioner's amended motion to vacate be denied on this ground.

As an initial matter, for the reasons explained above, Petitioner fails to show that his indictment defect constitutes a structural error. The Court, therefore, does not apply the structural-error standard and, instead, applies the general habeas standard for evaluating alleged constitutional errors. See Ross v. United States, 289 F.3d 677, 681-82 (11th Cir. 2002) (per curiam) (concluding that an alleged error raised in a motion to vacate under § 2255 was not structural and reviewing for harmless error). “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Rather 28 U.S.C. § 2255(a) provides relief where “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Richards v. United States, 837 F.3d 965, 966 (11th Cir. 1988) (per curiam) (internal quotations and citation omitted).

Here, Petitioner argues the omission of the knowledge-of-status element from his indictment violates his Fifth and Sixth Amendment rights. Am. Mot. to Vacate 4-7. “[T]he appropriate standard for reviewing the harmlessness of a non-structural constitutional error on collateral review of a state court judgment is the standard enunciated in Kotteakos v. United States, 328 U.S. 750, . . . (1946).” Ross, 289 F.3d at 682 (citing Brecht, 507 U.S. at 636-38). The Eleventh Circuit also “applies ‘[this] harmless error standard to the habeas review of federal court convictions.'” Phillips v. United States, 849 F.3d 988, 993 (11th Cir. 2017) (quoting Ross, 289 F.3d at 682). “Under that standard, a defendant is entitled to habeas relief when an error results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury's verdict.'” Ross, 289 F.3d at 682 (quoting Brecht, 507 U.S. at 638). “Stated another way, a § 2255 movant ‘is entitled to reversal only when the error resulted in actual prejudice because it had substantial and injurious effect or influence in determining' the final result.” Rosales-Diaz v. United States, 805 Fed.Appx. 660, 666 (11th Cir. 2020) (per curiam) (internal alterations omitted) (quoting Vines v. United States, 28 F.3d 1123, 1130 (11th Cir. 1994)). A petitioner bears the burden of proving that he is entitled to relief. Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation omitted).

For the purposes of this recommendation, the Court assumes, without deciding, that Petitioner's indictment was erroneous under Rehaif and violated Petitioner's Fifth and Sixth Amendment rights. See United States v. Ndiaye, 434 F.3d 1270, 1299 (11th Cir. 2006) (holding that an indictment must, inter alia, “set[] forth the essential elements of the crime”).³ Nonetheless, he is not entitled to relief because he fails to show that the “error[s] resulted in actual prejudice because [they] had substantial and injurious effect or influence in determining” the final result. Vines, 28 F.3d at 1130. As explained above, even ignoring Petitioner's trial testimony, he could not credibly argue that he did not know his status as a convicted felon because he had previously been convicted of multiple felonies before his arrest for possession of a firearm by a convicted felon. Final PSR 8-9, 11-12; see also Trial Tr. vol. III, at 126:22-126:24, 138:20-139:03. Indeed, he stipulated to his prior felony convictions. Trial Stipulation 1-2; Trial Tr. vol. III, at 172:20-173:19; see also Am. Mot. to Vacate 18 (“A part of his trial strategy was to stipulate to his felon status.”). He does not allege that he could present any evidence showing that he did not know he was a convicted felon. Based on this evidence, Petitioner is not entitled to relief because he fails to establish actual prejudice resulting from the alleged constitutional errors. See Greer, 414 S.Ct. at 2097-98 (“Those prior convictions are substantial evidence that they knew they were felons.”); Leonard, 2021 WL 2844904, at *6; Moore, 954 F.3d at 1337, 1338; Brown, 2021 WL 2546466, at *9; Richardson, 2021 WL 719613, at *4. Therefore, in the alternative, to the extent Petitioner may avoid procedural default, the Court RECOMMENDS that his amended motion to vacate (ECF No. 91) be DENIED on the merits of his claims.

3 In United States v. Moore, 954 F.3d 1322 (11th Cir. 2020), however, the Eleventh Circuit considered a similar Rehaif argument and discussed the requirements for an indictment. The Court noted that “[t]he standard for whether an indictment sufficiently alleges a crime is not demanding.” Moore, 954 F.3d at 1332. “An indictment tracking the statutory language and stating approximately the time and place of an alleged crime is sufficient.” Id. (citing United States v. Brown, 752 F.3d 1344, 1353 (11th Cir. 2014)). Petitioner's indictments in Moore “track[ed]- and cite[d]-the language from 18 U.S.C. § 922(g)(1), ” and the Eleventh Circuit recognized that the “indictment[s] were clearly sufficient prior to Rehaif.” Id. at 1333. While the Supreme Court later interpreted § 922(g) to require proof of knowledge of status in Rehaif, “[r]eading this knowledge requirement into the statute while also holding that indictments tracking the statute's text are insufficient would be incongruous.” Id. The Eleventh Circuit concluded that “[t]he absence of an element of an offense in an indictment is not tantamount to failing to charge a criminal offense against the United States.” Moore, 954 F.3d at 1333. The Moore petitioner did not raise a Fifth or Sixth Amendment challenge. Like in Moore, however, Petitioner's indictment tracks the language of § 922(g) and specifies the firearm Petitioner possessed. See Indictment 1-2. Thus, based on Moore, the Court is not convinced that Petitioner establishes a Fifth or Sixth Amendment violation. See also Ndiaye, 434 F.3d at 1299 (“The constitutional standard is fulfilled by an indictment that tracks the wording of the statute, as long as the language sets forth the essential elements of the crime.”); United States v. Fern, 155 F.3d 1318, 1323 (11th Cir. 1998) (“If an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.”). Regardless, Petitioner is not entitled to relief because he fails to show actual prejudice.

IV. Petitioner's Original Motion to Vacate

In his original pro se motion to vacate, Petitioner raised a similar Rehaif claim, arguing his conviction and sentence must be vacated because his indictment omitted the knowledge-of-status element of § 922(g). Mot. to Vacate 3-6, ECF No. 80. Although Petitioner has filed an amended motion to vacate (ECF No. 91) through appointed counsel, neither Petitioner nor his appointed counsel has indicated whether they intended for his amended motion to replace his original motion. Thus, in an abundance of caution, the Court addresses Petitioner's original pro se motion to vacate.

Respondent argues Petitioner's claims should be dismissed for procedural default because he failed to raise any Rehaif claim on direct appeal. Resp. to Mot. to Vacate 6-8, ECF No. 90. The Court agrees. As explained above, Petitioner cannot show cause and prejudice or actual innocence to excuse procedural default. A Rehaif claim was available to Petitioner on direct appeal, and his prior felony convictions show that he did not suffer actual prejudice and that he was not actually innocent. See Greer, 414 S.Ct. at 2097-98; Leonard, 2021 WL 2844904, at *6; Moore, 954 F.3d at 1337, 1338; Brown, 2021 WL 2546466, at *9. In the alternative, as with his amended motion to vacate, even assuming the Court reaches the merits of his claims and Petitioner could show a constitutional error arising from his defective indictment, he fails to show resulting prejudice because he had previously been convicted of multiple felonies prior to his arrest for possession of a firearm by a convicted felon. Final PSR 8-9, 11-12; Trial Stipulation 1-2; Trial Tr. vol. III, at 172:20-173:19. Moreover, to the extent Petitioner argues the Court lacked subject matter jurisdiction because his indictment omitted the knowledge-of-status element, the Eleventh Circuit has rejected this argument. Moore, 954 F.3d at 1336-37. Therefore, to the extent Petitioner continues to raise the claims advanced in his original motion to vacate, the Court RECOMMENDS that his original motion to vacate (ECF No. 80) be DENIED.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.

CONCLUSION

For the foregoing reasons, the Court recommends that Petitioner's motion to vacate (ECF No. 80) and amended motion to vacate (ECF No. 91) be denied. Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

Petitioner is hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”

SO RECOMMENDED.