Opinion
Criminal Action 12-92
05-15-2023
RICHARD BUSH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Cathy Bissoon United States District Judge.
Assuming that it is timely, Petitioner's Motion (Doc. 647) under 28 U.S.C. § 2255 will be denied. An evidentiary hearing is unnecessary because the filings of record show that Petitioner is not entitled to relief.
The Court is not entirely convinced that § 2255(f)(3) is applicable. See In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (“[Rehaif] did not set forth a new rule of constitutional law as contemplated by § 2255(h).”).
As the government correctly states, Petitioner's Rehaif claim is procedurally defaulted. See Resp't Br. (Doc. 659) at 1 (“Neither during the trial nor during his initial appeal did [Petitioner] raise the issue about whether the government had to establish that [Petitioner] knew he was a felon at the time of his possession of firearms to establish a violation of 18 U.S.C. § 922(g)(1).”). Under materially similar circumstances, this Court, and the Court of Appeals for the Third Circuit, consistently have held the same. See Rutherford v. United States, 2022 WL 3042661, *2 (W.D. Pa. Aug. 2, 2022) (citing decisions).
Parenthetically, Petitioner's trial and appellate counsel were not ineffective in failing to raise a Rehaif claim. See Stoner v. U.S., 2021 WL 3472385, *5 (M.D. Pa. Aug. 6, 2021) (holding same, because “failing to predict a change in the law is not deficient performance”) (citation to quoted, binding authority omitted)).
Having procedurally defaulted, Petitioner must demonstrate both cause and actual prejudice - or actual innocence. Actual innocence is not meaningfully at issue. Compare Resp't Br. at 1 (“[T]he [Petitioner] stipulated that he was a felon, which obviated the need for the government to present evidence of [his] extensive criminal record, which includes multiple felony convictions.”); with United States v. Adams, 36 F.4th 137, 152 (3d Cir. 2022) (“Greer [v. United States, 141 S.Ct. 2090 (2021)], in effect, created a presumption that the knowledge-of-status element is satisfied whenever a § 922(g)(1) defendant is, in fact, a felon.”).
That leaves “cause” and “actual prejudice.” The Court need not address the former, because Petitioner has not shown the latter. See United States v. De Castro, 49 F.4th 836, 847 (3d Cir. 2022) (“To show prejudice, [the Petitioner] must establish that the Government's failure to prove an essential element of the claim worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”).
Petitioner's Rehaif claim is procedurally defaulted, he cannot overcome the default and his 2255 Motion (Doc. 647) is DENIED.
No certificate of appealability will issue because jurists of reason would not find the Court's conclusions debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.