Opinion
CA 9:20-cv-01294-JFA-MHC
09-10-2021
Robert Priester, Petitioner, v. Warden Travis Briggs, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Robert Priester (“Petitioner”), a federal inmate currently incarcerated at Federal Correctional Institution (“FCI”) Bennettsville, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(1)(c) (D.S.C.), the assigned District Judge referred the Petition to the undersigned for a Report and Recommendation. Respondent filed a Motion for Summary Judgment, ECF No. 39; Petitioner filed a Response in Opposition, ECF No. 42; and Respondent filed a Reply, ECF No. 43. For the reasons that follow, the Court recommends granting Respondent's Motion and denying the Petition.
I. BACKGROUND
A. Petitioner's conviction and sentence
In August 2008, Petitioner pled guilty to drug conspiracy charges involving the sale of five grams or more of cocaine base (this was a “lesser included” charge of the drug conspiracy charged in Count 1 in the indictment). United States v. Priester, No. 3:07-cr-1014-JFA-16 (D.S.C. entered August 25, 2008), ECF No. 586. In the plea agreement, signed by Petitioner and his counsel, Petitioner acknowledged that he had “[one] prior felony drug conviction that has become final and that the Attorneys for the Government have filed an Information pursuant to 21 U.S.C. § 851 which subjects him to a mandatory minimum term of imprisonment of [ten] years[.]” Id., ECF No. 586 at 7. Petitioner agreed “to not contest the Information that [was] filed pursuant to 21 U.S.C. § 851[.]” Id., ECF No. 586 at 8. During the plea hearing, Petitioner acknowledged that he had one prior felony drug conviction which subjected him to a mandatory minimum sentence of ten years imprisonment. Id., ECF No. 986 at 22-23.
Petitioner was allowed out on bond after his guilty plea. In December 2008, while he was on bond, Petitioner was involved in a shooting that resulted in death. See United States v. Priester, No. CR 3:07-1014-JFA, 2012 WL 887473, at *1 (D.S.C. Mar. 15, 2012). He was charged in November 2009 in a second indictment for being a felon in possession of a firearm while on bond in violation of 18 U.S.C. § 922(g)(1) and § 3147(1). United States v. Priester, No. 3:09-cr-01176-JFA-1 (D.S.C. entered November 3, 2009), ECF No. 2.
Petitioner ultimately pled guilty to the second indictment in August 2010. The guilty plea provided, in pertinent part:
The Defendant agrees to plead guilty to . . . “Possession of a Firearm by a Felon, ” in violation of Title 18, United States Code, Section 922(g)(1) and 3147(1).
In order to sustain its burden of proof, the Government is required to prove the following:
FIRST: The defendant had previously been convicted of a crime punishable by a term of imprisonment exceeding one year;
SECOND: The defendant knowingly possessed, transported, shipped, or received, the firearm;
THIRD: The possession was in or affecting commerce, because the firearm had traveled in interstate or foreign commerce at some point during its existence; and
FOURTH: The possession occurred while the defendant was on release pursuant to an order under Title 18, United States Code, Chapter 207.United States v. Priester, No. 3:09-cr-01176- JFA-1 (D.S.C. entered April 28, 2010), ECF No. 37 at 1-2. The plea agreement further stipulated that Petitioner should receive a total sentence of 300 months for the two counts in the two separate criminal cases (3:07-cr-1014 and 3:09-cr-01176). See id., ECF No. 54 at 13.
B. Petitioner's post-conviction motions
In 2011, Petitioner filed a § 2255 motion, arguing ineffective assistance of counsel. The Court granted the government's motion for summary judgment in that matter. See United States v. Priester, No. CR 3:07-1014-JFA, 2012 WL 887473, at *1-3 (D.S.C. Mar. 15, 2012). Petitioner filed the present § 2241 habeas petition (“Petition”) in April 2020. ECF No. 1. He contends that his conviction and sentence for being a felon-in-possession under § 922(g)(1) should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019) because an element of the offense was not charged and was not proven beyond a reasonable doubt. ECF No. 1-1 at 1-2.
II. LEGAL STANDARD
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
Petitioner contends in this § 2241 Petition that his 18 U.S.C. § 922(g)(1) conviction obtained via his guilty plea is invalid in light of Rehaif v. United States, 139 S.Ct. 2191 (2019), which held that, to prove an offense under 18 U.S.C. §§ 924(a)(2) and 922(g), the government must prove the defendant knew he possessed a firearm and knew he belonged to a category of persons barred from possessing a firearm at the time of possession. Petitioner argues that the essential knowledge-of-status element was missing in his indictment and guilty plea. See ECF No. 1-1 at 3-4. Accordingly, he asks the Court to vacate his conviction. ECF No. 1 at 8.
A. Jurisdiction via the savings clause exception in 28 U.S.C. § 2255
Before the Court can consider the underlying merits of Petitioner's claim, the Court must determine whether it has jurisdiction.
Despite Respondent's concession that jurisdiction exists, federal courts have an independent duty to ensure that jurisdiction is proper and must dismiss a case whenever it appears that subject matter jurisdiction is lacking. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); see also Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (explaining that because “no action of the parties can confer subject-matter jurisdiction upon a federal court . . . the consent of the parties is irrelevant”).
Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective, ” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, a petitioner must show that:
(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d at 333-34.
Initially, the Court notes that Petitioner meets the first and third prongs of the Jones test because the legality of his felon-in-possession conviction was established by settled precedent at the time of his conviction, and Rehaif is not a new rule of constitutional law. See United States v. Lockhart, 947 F.3d 187, 196 (4th Cir. 2020) (“The Court's holding in Rehaif abrogated the prior precedent of this Circuit, which did not require proof of a defendant's knowledge that he belonged to the relevant category.”).
“In evaluating substantive claims under the savings clause, ” a district court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Because Petitioner was convicted in the District of South Carolina, this Court's analysis relies only on Fourth Circuit precedent. Cf. Hughes v. Mackelburg, No. CV81903390HMHJDA, 2020 WL 1429351, at *1 n.2 (D.S.C. Mar. 24, 2020) (applying the procedural law of the Fourth Circuit and the substantive law of the Eleventh Circuit in analyzing a § 2241 petition brought via § 2255's savings clause).
At issue is whether Petitioner satisfies the second prong of the Jones test: that subsequent to Petitioner's direct appeal and first § 2255 motion, the substantive law changed and made the conduct for which Petitioner was convicted no longer criminal. In re Jones, 226 F.3d at 333-34. “The plain meaning of the phrase ‘the conduct of which the prisoner was convicted' refers to the conduct that a jury found beyond a reasonable doubt supported the prisoner's conviction.” Hahn v. Moseley, 931 F.3d 295, 304-05 (4th Cir. 2019) (Wynn, J., concurring). In other words, in analyzing whether the second prong of the Jones test is satisfied, the Court looks to the facts the government introduced to the jury at trial. See id. (Wynn, J., concurring) (“Notably, Jones focused not on whether a petitioner was ‘actually innocent,' but whether a subsequent change in statutory construction amounted to a ‘fundamental defect' in the petitioner's prosecution.” (emphasis added)).
Similarly, Rehaif concerned the government's burden of proof at trial-specifically, the Supreme Court held that in order to prove an offense under the felon-in-possession statutes 18 U.S.C. §§ 922(g) and 924(a)(2), the government must show that a defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed the firearm. 139 S.Ct. at 2194. In short, the word “knowingly” applied both to a defendant's conduct and to a defendant's status. Id. The Fourth Circuit has clarified that Rehaif “only extends [the knowledge requirement] to the elements of § 922(g), which the Supreme Court defined as: (1) status, (2) possession, (3) a firearm, and (4) a jurisdictional requirement that the gun have entered the stream of interstate commerce.” United States v. Moody, 2 F.4th 180, 197 (4th Cir. 2021).
In the instant matter, Petitioner did not go to trial, but rather pled guilty to the felon-in-possession charge under § 922(g)(1). In the context of a guilty plea, it has been held by this Court multiple times that “Rehaif did not create a substantive change in the law but simply clarified the elements that the Government would have had to prove at trial had Petitioner exercised his right to a trial.” Rhodes v. Dobbs, No. CV 1:20-1725-JFA-SVH, 2021 WL 1413583, at *5 (D.S.C. Jan. 22, 2021) (citation and internal quotation marks omitted) (collecting cases), report and recommendation adopted, No. 1:20-CV-1725-JFA-SVH, 2021 WL 805503 (D.S.C. Mar. 3, 2021); but see Moore v. Warden of FCI Edgefield, No. 9:20-CV-02089-TLW, 2021 WL 3828828, at *5 (D.S.C. Aug. 27, 2021) (reasoning in a case where the defendant stipulated to his felony status at trial that “Rehaif changed the substantive law such that the conduct of which Moore was convicted is ‘no longer a source of criminal liability,' [and therefore, ] he has satisfied the second element of the Jones test”). Moreover, courts in this district have focused, as they should, on the conduct for which the defendant pled guilty-that is, whether the defendant acknowledged during the plea hearing that he knew of his felon status when possessing the firearm. See, e.g., Russaw v. Kellie, No. CV 4:19-02127-MGL, 2020 WL 4381946, at *2 (D.S.C. July 31, 2020) (examining the guilty plea transcript and determining that “Russaw's conduct, as deduced from the plea colloquy, is still criminal, even after Rehaif”).
However, complicating matters here is that the plea transcript is not available for review, as Respondent noted:
Consistent with then-controlling law, the indictment did not specifically allege, and the plea agreement did not set forth, that Petitioner knew of his status as a felon at the time he possessed a firearm. Although the guilty plea transcript has not been transcribed, in 2010 this Court did not have defendants pleading guilty to § 922(g) admit that they knew they had been convicted of a crime punishable by more than one year in prison at the time he possessed a firearm.ECF No. 39-1 at 6. Moreover, as noted above, the elements set forth in the plea agreement for the § 922(g)(1) charge did not include a requirement that Petitioner know that he had been convicted of a crime punishable by a term of imprisonment exceeding one year. See United States v. Priester, No. 3:09-cr-01176-JFA-1 (D.S.C. entered April 28, 2010), ECF No. 37 at 1-2.
Thus, the conduct to which Petitioner admitted he was guilty-and which the government said it could prove-was merely being a felon at the time of possession and knowingly possessing a firearm that entered the stream of interstate commerce. As Rehaif makes clear: this conduct is not a crime in and of itself, as it is missing the necessary knowledge-of-status element that makes it criminal. Rehaif, 139 S.Ct. at 2197 (noting that a “defendant's status is the ‘crucial element' separating innocent from wrongful conduct” (citation omitted)); Moody, 2 F.4th at 197 (noting the knowledge requirement extends to the elements of § 922(g): “(1) status, (2) possession, (3) a firearm, and (4) a jurisdictional requirement that the gun have entered the stream of interstate commerce”). In other words, Petitioner did not admit to the necessary knowledge-of-status element that Rehaif now requires of guilty pleas under § 922(g). The Court is unable to definitively say otherwise. Cf. Rogers v. Dobbs, No. 6:20-CV-00066-RBH, 2021 WL 267826, at *3 (D.S.C. Jan. 27, 2021) (“The record in Petitioner's criminal case confirms he knew he was a convicted felon when he possessed the firearms at issue, as evidenced by the plea and sentencing transcripts.” (emphasis added)). With no evidence to the contrary, and a government concession that an essential element was not admitted to, the Court is constrained to agree in this scenario that Petitioner satisfies the Jones test for purposes of the Court's jurisdiction under § 2241.Accordingly, the Court turns to whether Petitioner is entitled to habeas relief.
Indeed, Petitioner argues that “the court told him he did not have to know he was a convicted felon in order to be guilty of 18 U.S.C. 922(g).” ECF No. 1-1 at 4.
This, of course, does not establish that Petitioner is “actually innocent” of the § 922(g) offense. “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998) (internal quotation marks omitted). The undersigned wants to emphasize that this analysis is limited to the Court's inquiry as to whether the Court has jurisdiction to entertain the § 2241 Petition under Jones. Whether Petitioner is entitled to habeas relief is an entirely different question. As explained below, Petitioner cannot show that, at the time he possessed the firearm, he was somehow unaware that he had been convicted of a crime punishable by more than one year in prison.
To the extent Petitioner may be challenging the validity of his sentence via Rehaif, he cannot meet the savings clause under Wheeler, because Rehaif has not been held to be retroactive on collateral review. See Asar v. Travis, No. CV 6:20-394-BHH, 2020 WL 3843638, at *2 (D.S.C. July 8, 2020).
B. Petitioner is not entitled to habeas relief for any alleged Rehaif errors
Petitioner argues Rehaif errors in the indictment and guilty plea entitle him to habeas relief. See ECF No. 1-1 at 3-4. Respondent moves for summary judgment, arguing that although Petitioner's claim may pass through § 2255's savings clause, he is not entitled to habeas relief because (1) his claim is procedurally barred, and, in any event, (2) he cannot show that any Rehaif errors had a substantial and injurious effect on the proceedings. The Court agrees with Respondent.
1. Petitioner procedurally defaulted his claim
A petitioner seeking relief under § 2241 who failed to raise the issue on direct appeal faces certain barriers to relief for what the courts have described as “procedural default.” Bousley v. United States, 523 U.S. 614, 622 (1998). This procedural default can be excused under two, very limited circumstances.
First, the petitioner can show “cause” for failing to raise the issue on direct appeal and “actual prejudice.” Id. The case law has been very demanding on establishing “cause” for procedural default, rejecting “novelty” and “futility” arguments where other defendants have timely raised the same issue at trial and/or on direct appeal. See id.; see also United States v. Sanders, 247 F.3d 139, 144-46 (4th Cir. 2001); United States v. Harris, 183 F.3d 313, 317-18 (4th Cir. 1999). The case law has been similarly demanding regarding the showing of “actual prejudice, ” requiring more than “a possibility of prejudice, but . . . actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (citation omitted).
Second, a petitioner, even in the face of an unexcused procedural default, may still obtain relief under § 2241 where he can establish “actual innocence, ” which means “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S at 623-24. Here, Petitioner has failed to show any grounds to overcome the procedural default.
a) Cause and Prejudice
First, Petitioner has failed to show cause. Although Petitioner argues that his Rehaif claim should not be barred because the “rule of new statutory law announced in Rehaif was not available until after Petitioner had exhausted all appeals available, ” ECF No. 1 at 8, his claim of novelty is not an exception to this requirement and does not establish cause. Indeed, at the time of Petitioner's guilty plea in 2010, the Federal Reporters were “replete” with the argument on which Petitioner bases his Petition. See, e.g., United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc); United States v. Smith, 940 F.2d 710, 714-15 (1st Cir. 1991). Novelty does not occur when an attorney was capable of making a claim, but the claim was likely to lose before the relevant courts. Bousley, 523 U.S. at 623. It occurs only when a claim is not “‘available' at all.” Smith v. Murray, 477 U.S. 527, 537 (1986). Because Petitioner's claims were readily available, he has failed to show cause.
Second, even if his claims were novel, Petitioner cannot establish prejudice. On collateral review-as opposed to a direct appeal-the prejudice standard is more difficult to establish. See United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting “use of the ‘plain error' standard to review [a] § 2255 motion” and stating “that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal”); accord United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994) (holding that “the Frady cause and prejudice standard applies to . . . collateral challenges to unappealed guilty pleas”).
Here, Petitioner has not shown how he was substantially disadvantaged by any lack of knowledge regarding the knowledge-of-status requirement or how this prejudiced his defense. Rather, Petitioner simply points out the error and suggests that the existence of the error entitles him to relief. Indeed, he has not alleged that, at the time he possessed the firearm, he did not know he had been convicted of an offense punishable by imprisonment for a term exceeding one year. See Greer v. United States, 141 S.Ct. 2090, 2098 (2021) (noting, in a direct appeal involving a Rehaif error, “neither [defendant] 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”).
Nor could he-in the plea agreement for the drug conspiracy charge in case number 3:07-cr-1014, Petitioner acknowledged that he had “[one] prior felony drug conviction that has become final and that the Attorneys for the Government have filed an Information pursuant to 21 U.S.C. § 851 which subjects him to a mandatory minimum term of imprisonment of [ten] years.” United States v. Priester, No. 3:07-cr-1014-JFA-16 (D.S.C. entered August 25, 2008), ECF No. 586 at 7. Petitioner agreed “to not contest the Information that [was] filed pursuant to 21 U.S.C. § 851.” Id., ECF No. 586 at 8. During the guilty plea hearing on August 29, 2008, for that charge, Petitioner acknowledged that he had one prior felony drug conviction which subjected him to a mandatory minimum sentence of ten years imprisonment. Id., ECF No. 986 at 22-23.
Subsequent to that guilty plea and his acknowledgement that he was a convicted felon, Petitioner was out on bond when he was involved in a shooting that resulted in death and the subsequent § 922(g) charge at issue here. See United States v. Priester, No. 3:09-cr-01176-JFA-1 (D.S.C. entered November 3, 2009), ECF No. 2. The shooting occurred on December 28, 2008- less than four months after his guilty plea in case number 3:07-cr-1014. See Id. So, while the defendant in Rehaif reasonably could have been confused about his immigration status, Petitioner could make no such argument about the status of his prior felony conviction where he had been reminded of it less than four months before his illegal possession of a firearm.
In other words, Petitioner has not shown how failing to advise him of § 922(g)'s knowledge-of-status element materially affected his decision to plead guilty in his case. See Greer, 141 S.Ct. at 2098 (“[Defendant] likewise cannot show that, but for the Rehaif error during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty.”). Because Petitioner has provided no evidence which could have raised reasonable doubt at trial as to whether he knew he was a felon, he has failed to show prejudice from pleading guilty without knowing that the government would have had to prove the knowledge-of-status element. See Murray, 477 U.S. at 494 (noting actual prejudice requires a showing of substantial disadvantage that infected the entire proceedings with “error of constitutional dimensions”). Consequently, because the Rehaif error did not “work[ ] to his actual and substantial disadvantage, ” he has not demonstrated prejudice. Id.
b) Actual innocence
Finally, Petitioner cannot show actual innocence because there was sufficient evidence in the record to establish that he knew he was a felon. As his factual guilt is supported by the record evidence (as noted above) and he has not come forward with any evidence to undermine the Court's confidence of his factual guilt, Petitioner has failed to show his actual innocence. See Bousley, 523 U.S at 623 (“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.”); see also Greer, 141 S.Ct. at 2097 (“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. That simple truth is not lost upon juries. Thus, 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.” (internal quotation marks and citation omitted) (emphasis in original)). Consequently, Petitioner has failed to overcome the procedural default and the Court recommends that Respondent's Motion for Summary Judgment be granted. See Moore, 2021 WL 3828828, at *6-8 (dismissing Rehaif claim as procedurally defaulted in § 2241 case); see also Wilson v. United States, No. 3:14-CR-254-RJC-DSC-1, 2020 WL 4950930, at *8-9 (W.D. N.C. Aug. 24, 2020) (dismissing Rehaif claim as procedurally defaulted in § 2255 case), appeal dismissed, No. 20-7436, 2020 WL 9148121 (4th Cir. Nov. 30, 2020).
2. Petitioner cannot show any Rehaif errors had a substantial and injurious effect on the proceedings
Even if Petitioner were able to overcome his procedural default, the Court concludes that his claim would fail on the merits because he has failed to show any Rehaif errors had a substantial and injurious effect on his conviction or otherwise prejudiced him.
The Supreme Court has held, a “less onerous harmless-error standard” applies on collateral review. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (holding an error is harmless unless it had a “substantial and injurious effect or influence in determining the jury's verdict”); see also United States v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (holding Brecht's harmless-error review standard, applicable to § 2254 cases, is also applicable to § 2255 cases). An error is harmless on collateral review unless it had a “substantial and injurious effect” on the defendant's conviction. Smith, 723 F.3d at 517; see also Walker v. Rivera, 820 F.Supp.2d 709, 715 (D.S.C. 2011) (applying the “substantial and injurious effect” standard on a § 2241 petition that satisfied the § 2255 savings-clause exception), aff'd, 468 Fed.Appx. 341 (4th Cir. 2012).
On collateral review, it is Petitioner's burden to establish that he is entitled to habeas relief, United States v. Pettiford, 612 F.3d 270, 277 (4th Cir. 2010), and that means showing the omission of the knowledge-of-status element had a “substantial or injurious effect” on the outcome of the proceedings. See Brecht, 507 U.S. at 623. In other words, a habeas petitioner is not entitled to habeas relief based on trial error unless he can establish that it resulted in “actual prejudice.” Id. at 637 (internal quotation marks omitted). “Under this test, relief is proper only if the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining [the outcome of the proceeding].” Davis v. Ayala, 576 U.S. 257, 267-68 (2015) (citation and internal quotation marks omitted). That is, there must be more than a “reasonable possibility” that the error was harmful. Id. at 268 (citing Brecht, 507 U.S. at 637).
Here, Petitioner fails to show prejudice. Based on the events leading up to his arrest, Petitioner cannot credibly argue that, at the time he possessed the firearm that gave rise to his felon in possession conviction, he was unaware he had been convicted of a crime punishable by imprisonment for a term exceeding one year. See generally Greer, 141 S.Ct. at 2095 (“As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons.”). Moreover, the government could have easily proven the knowledge-of-status element had Petitioner elected to go to trial instead of plead guilty. Cf. United States v. Norman, No. CR 7:17-527-HMH, 2020 WL 4043648, at *8 (D.S.C. July 17, 2020) (“The Government could have easily proven that Norman knew he was a felon at the time he possessed a firearm, as there is overwhelming evidence to establish this element”); see also United States v. Pascal, 817 Fed.Appx. 713, 717 (11th Cir. 2020) (“Because the facts in the record, taken together, indicate that Pascal knew of his status as a felon at the time of his possession of the firearm, he cannot show a reasonable probability that he would not have pled guilty if the knowledge requirement in Rehaif had to be proven.”).
This Court recently applied the plain-error standard of review to a Rehaif-based § 2255 motion arising out of a trial. See United States v. Norman, Cr. No. 7:17-527-HMH, 2020 WL 4043648, at *7-8 (D.S.C. July 17, 2020). Under that standard, a petitioner must show that (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). For an error to affect a petitioner's substantial rights, the error “must have been prejudicial: [i]t must have affected the outcome of the district court proceedings.” United States v. White, 405 F.3d 208, 217 (4th Cir. 2005) (citation and internal quotation marks omitted). The difference between the two standards is not critical here, as plain-error review is similar to habeas review, in that both require the petitioner to show the error in question prejudiced him. See Id. Under either standard, Petitioner is not entitled to habeas relief because of his failure to show prejudice.
Thus, even if Petitioner could satisfy § 2241's jurisdictional requirements and overcome his procedural default, he cannot meet his burden to show any Rehaif error in the indictment or guilty plea had a “substantial or injurious effect” on the outcome of the proceedings. The undersigned, therefore, recommends that Respondent's Motion for Summary Judgment be granted.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned recommends DENYING the Petition for a writ of habeas corpus and GRANTING Respondent's Motion for Summary Judgment (ECF No. 39).
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).