Summary
holding Rehaif claim in guilty plea context subject to procedural default rules on § 2255 motion
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CIVIL ACTION NO. 2:20cv298 [ORIGINAL CRIMINAL NO. 2:17cr145]
11-04-2020
Karlton Ray CHERRY, Petitioner, v. UNITED STATES of America, Respondent.
Counsel for Petitioner: Paul Geoffrey Gill, Office of the Federal Public Defender, 701 E. Broad Street, Suite 3600, Richmond, VA 23219. Counsel for United States: Emily Rebecca Gantt, Assistant United States Attorney, United States Attorney Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
Counsel for Petitioner: Paul Geoffrey Gill, Office of the Federal Public Defender, 701 E. Broad Street, Suite 3600, Richmond, VA 23219.
Counsel for United States: Emily Rebecca Gantt, Assistant United States Attorney, United States Attorney Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
FINAL ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Petitioner's Motion to Correct, Set Aside, and/or Vacate Sentence Pursuant to 28 U.S.C. § 2255 ("Motion"), filed on June 15, 2020. ECF No. 38. The United States filed a Response in opposition on August 11, 2020. ECF No. 51. The Petitioner filed a Reply on October 16, 2020. ECF No. 54. For the reasons below, the court DENIES the Motion.
I. Background
On December 6, 2017, the Petitioner pleaded guilty to a one-count Indictment. ECF No. 19. Count One charged the Petitioner with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ECF No. 11. The parties agree that at the plea hearing, the Petitioner was not advised that, should he proceed to trial, the Government would be required to prove beyond a reasonable doubt that he knew that he had been previously convicted of a felony at the time he possessed a firearm. The court sentenced the Petitioner to one-hundred eight (108) months in prison on May 2, 2018.
II. Motion to Vacate
In the Motion, the Petitioner argues that he is entitled to relief pursuant to the Supreme Court's decision in Rehaif v. United States, ––– U.S. ––––, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). In Rehaif, the Supreme Court held that "in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both 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." Id. at 2200. The Petitioner asserts, and the Government agrees, that the court did not inform him that the Government would be required to prove that he knew he was a felon at the time he possessed a firearm. ECF No. 38 at 1. The Petitioner further contends that he is entitled to vacatur of his conviction because the court incorrectly stated the elements of a § 922(g)(1) offense at his plea hearing and therefore that his guilty plea was not voluntary and intelligent. Id. at 1-7.
The Petitioner concedes, however, that the court correctly identified the elements of a § 922(g)(1) offense pursuant to Fourth Circuit law in effect at the time of the hearing. ECF No. 38 at 1 n.1; see United States v. Langley, 62 F.3d 602, 604-08 (4th Cir. 1995) (en banc) (stating the elements of a § 922(g) offense in the Fourth Circuit prior to Rehaif ). Therefore, the Petitioner argues that Rehaif applies retroactively to convictions, like his, that became final prior to the Rehaif decision. ECF No. 38 at 6-7.
As an initial matter, neither the Supreme Court nor the Fourth Circuit has made Rehaif retroactive to cases on collateral review. Until such time, the Petitioner is not entitled to the relief he seeks. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001) (stating that a § 2255 petitioner was not entitled to relief under Apprendi because that case was not retroactively applicable to cases on collateral review).
Furthermore, even if the Supreme Court or the Fourth Circuit were to hold that Rehaif applies retroactively, the court would still deny the Petitioner's Motion to Vacate. The Petitioner did not assert at any time prior to his conviction, or on direct appeal, that the court incorrectly stated the elements of the offense to which he pleaded guilty. Therefore, the Petitioner has procedurally defaulted his Rehaif claim. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ("[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.").
To overcome a procedural default, the Petitioner bears the burden of showing either "(1) that he is ‘actually innocent’ or (2) ‘cause’ for the default and ‘prejudice’ resulting therefrom." United States v. Fugit, 703 F.3d 248, 253 (4th Cir. 2012) (quoting Bousley, 523 U.S. at 622, 118 S.Ct. 1604 ). The Petitioner does not even attempt to argue that he is actually innocent of violating § 922(g)(1). ECF No. 54. Therefore, his procedural default is excused only if he can satisfy the cause-and-prejudice standard.
With regard to prejudice, the Fifth Circuit has explained,
Demonstrating prejudice under Rehaif will be difficult for most convicted felons for one simple reason. Convicted felons typically know they're convicted felons. And they know the Government would have little trouble proving that they knew. So it is hard to imagine how their conviction or guilty plea was prejudiced by any error under Rehaif.
United States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020). In this case, there is overwhelming evidence that the Petitioner knew of his status as a convicted felon. First, the Presentence Report (PSR) shows that the Defendant has been convicted of twelve felonies and that he has served prison sentences exceeding one (1) year on three distinct occasions. ECF No. 35 at 6-21, 27-28. This rebuts any suggestion that the Petitioner did not know of his status as a convicted felon. See United States v. Huntsberry, 956 F.3d 270, 285 (5th Cir. 2020).
Moreover, the Petitioner admitted in an interview with law enforcement on July 29, 2015, that he knew he was a convicted felon at the time he possessed a firearm. ECF No. 50 at 6. Because the record demonstrates that the Government would have easily proved that the Petitioner knew of his status as a convicted felon had the Petitioner proceeded to trial, there is little to no possibility that any Rehaif error affected the Petitioner's decision to plead guilty. Therefore, the court concludes that he has not shown prejudice. See Bousley, 523 U.S. at 622, 118 S.Ct. 1604. III. Conclusion
The Petitioner argues that he is not required to show prejudice because the Fourth Circuit held in United States v. Gary, 954 F.3d 194 (4th Cir. 2020), that Rehaif error is "structural" error that does not require "a case-specific showing of prejudice." ECF No. 54 at 2. Gary, however, was a case on direct appeal and says nothing about whether a § 2255 petitioner must show cause and prejudice to excuse a procedural default. The court, like other district courts in this Circuit, concludes that Gary does not obviate the need to show cause for a procedural default. See, e.g., McCauley v. United States, 1:13cr423, 2020 WL 5881270, at *7 (M.D. N.C. Sept. 4, 2020).
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For these reasons, the Petitioner's Motion is DENIED . The Petitioner is ADVISED that he may appeal from this Final Order by filing, within sixty (60) days of entry of this Order, a written notice of appeal with the Clerk of the United States District Court, U.S. Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The court declines to issue a certificate of appealability for the reasons stated herein.