Opinion
No. C19-4051-LTS Crim. No. CR16-4067-LTS
2020-12-02
Donavan CROSS, Movant, v. UNITED STATES of America, Respondent.
Jerrold Robert Black, Black Weir Law, 1904 Farnam Street, Suite 425, Omaha, NE 68102, 402-965-1457, rob@blackweirlaw.com, for Movant. John H. Lammers, US Attorney's Office, 600 4th Street, Suite 670, Sioux City, IA 51101, 712-255-6011, jack.lammers@usdoj.gov, for Respondent.
Jerrold Robert Black, Black Weir Law, 1904 Farnam Street, Suite 425, Omaha, NE 68102, 402-965-1457, rob@blackweirlaw.com, for Movant.
John H. Lammers, US Attorney's Office, 600 4th Street, Suite 670, Sioux City, IA 51101, 712-255-6011, jack.lammers@usdoj.gov, for Respondent.
ORDER ON MOTION PURSUANT TO 28 U.S.C. § 2255
Leonard T. Strand, Chief Judge I. INTRODUCTION
This matter is before me on Donavan Cross’ motion (Doc. 1) to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 based on retroactive application of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). The Government has filed a response (Doc. 3) and Cross has filed a reply (Doc. 8). For the reasons discussed herein, I find that an evidentiary hearing is not required.
II. BACKGROUND
On August 24, 2016, the Grand Jury returned an indictment charging Cross with one count of unlawful possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3) and 924(a)(2). See CR16-4067-LTS (Crim. Doc. 2). A jury found him guilty on December 15, 2016. On April 24, 2017, United States District Judge Mark W. Bennett sentenced Cross to 120 months’ incarceration followed by three years of supervised release. Crim. Doc. 79, 113.
On May 3, 2017, Cross filed an appeal, challenging his conviction on multiple grounds. Crim. Doc. 115. The Eighth Circuit Court of Appeals affirmed Cross’ conviction and filed its mandate on June 21, 2018. Crim. Docs. 124–26. On October 4, 2018, Cross filed a petition for writ of certiorari with the Supreme Court. Crim. Doc. 127. The Supreme Court denied certiorari on October 9, 2018. Crim. Doc. 128.
Cross filed his § 2255 motion (Doc. 1) on September 26, 2019, arguing that his conviction was inconsistent with the Supreme Court's subsequent decision in Rehaif because the Government failed to prove that Cross knew he possessed a firearm and knew that he had the relevant prohibited status when he possessed it. See Rehaif , 139 S. Ct. at 2194. In an initial review order, I found that Cross’ claim was not patently frivolous, noting that because the Eighth Circuit has not yet addressed whether Rehaif applies retroactively on collateral review, there is no controlling law on the issue. Doc. 2 at 4. I directed the Government to respond to Cross’ motion and appointed counsel for Cross. Id. The Government filed a response (Doc. 3) in which it concedes the retroactive application of Rehaif but argues that Cross is not entitled to relief because (1) his claim was procedurally defaulted and (2) there was harmless error. Cross then filed a reply (Doc. 8) through counsel.
III. LEGAL STANDARD
A prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside or correct the sentence. See 28 U.S.C. § 2255(a). To obtain relief under § 2255, a federal prisoner must establish:
[T]hat 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 [that the judgment or sentence] is otherwise subject to collateral attack.
Id. ; see also Hill v. United States , 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be claimed); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255 ). If any one of the four grounds is established, the court is required "to vacate and set aside the judgment and [it is required to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
When enacting § 2255, Congress "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Sun Bear v. United States , 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States , 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ). Although it appears to be broad, § 2255 does not provide a remedy for "all claimed errors in conviction and sentencing." Id. (quoting United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) ). Rather, it is intended to redress constitutional and jurisdictional errors and, apart from those errors, only "fundamental defect[s] which inherently [result] in a complete miscarriage of justice" or "omission[s] inconsistent with the rudimentary demands of fair procedure." Hill , 368 U.S. at 428, 82 S.Ct. 468 ; see also Sun Bear , 644 F.3d at 704 (clarifying that the scope of § 2255 is severely limited and quoting Hill , 368 U.S. at 428, 82 S.Ct. 468 ); United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." (citing Poor Thunder v. United States , 810 F.2d 817, 821 (8th Cir. 1987) )). A collateral challenge under § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady , 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (citation omitted).
"Evidentiary hearings on [ § 2255 ] motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists ." Thomas v. United States , 737 F.3d 1202, 1206 (8th Cir. 2013) (emphasis added). "The district court is not permitted to make a credibility determination on the affidavits alone." Id. at 1206 ; see also United States v. Sellner , 773 F.3d 927, 930 (8th Cir. 2014) ("[The] district court abused its discretion when it credited the attorney's affidavit over the petitioner's without first holding an evidentiary hearing."). However, no hearing is required "where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." See New v. United States , 652 F.3d 949, 954 (8th Cir. 2011) (citation omitted).
IV. DISCUSSION
A. Retroactive Application of Rehaif
In Rehaif , the Supreme Court held that the Government must make two separate showings of knowledge to convict a defendant of violating 18 U.S.C. § 922(g) : (1) "that the defendant knew he possessed a firearm" and (2) "that he knew he had the relevant status when he possessed it." Rehaif , 139 S. Ct. at 2194.
The Government concedes that "[b]ecause Rehaif narrows the ‘class of persons that the law punishes,’ Welch v. United States [––– U.S. ––––] 136 S. Ct. 1257, 1267 (2016), it is retroactively applicable in an initial motion under 28 U.S.C. § 2255(f)(3)." Doc. 3. at 3, n.2. Cross argues that I should accept the Government's concession, noting that the Eighth Circuit has previously declined to address retroactive application in the face of a concession by the Government. Doc. 8 at 3 (citing Becht v. United States , 403 F.3d 541, 545 n.3 (8th Cir. 2005) ). Based on the Government's concession and for purposes of this motion, I will assume that Rehaif applies retroactively.
At least one district court in the Eighth Circuit has concluded that Rehaif applies retroactively. See United States v. Bugh , 459 F. Supp. 3d 1184, 1189 (D. Minn. 2020) ("The Court finds that Rehaif recognized a new right, and that the newly recognized right is retroactively applicable to cases on collateral review.").
B. Procedural Default
The Government argues Cross has procedurally defaulted his Rehaif claim because he did not raise the issue at trial or on direct appeal. "In order to obtain collateral review on a procedurally defaulted claim, a habeas petitioner must show either that there was cause for his procedural default and actual prejudice, or that he is actually innocent of the crime for which he was convicted." Jennings v. United States , 696 F.3d 759, 764 (8th Cir. 2012) (citing Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). Because there appears to be no dispute that Cross’ claim is procedurally defaulted, I will consider whether he has established actual innocence or cause and actual prejudice to overcome the default.
1. Actual Innocence
To establish actual innocence, Cross must show that "it is more likely than not that no reasonable juror would have convicted him" had the jury been given the correct instruction and the Government had the opportunity to submit evidence of the omitted element. See Bousley , 523 U.S. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo , 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ). " ‘[A]ctual innocence’ means factual innocence not mere legal insufficiency.’ " Id. "[A] petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent." United States v. Mikalajunas , 186 F.3d 490, 494 (4th Cir. 1999). Actual innocence claims require a movant to "support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial." Weeks v. Bowersox , 119 F.3d 1342, 1351 (8th Cir. 1997) (quoting Schlup , 513 U.S. at 324, 115 S.Ct. 851 ). "This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a ... conviction." Johnson v. United States , 278 F.3d 839, 844 (8th Cir. 2002) (quoting McNeal v. United States , 249 F.3d 747, 749-50 (8th Cir. 2001) ). "Because such evidence is obviously unavailable in the vast majority of cases, claim of actual innocence are rarely successful." Weeks , 119 F.3d at 1351.
Cross argues he is actually innocent of the charge based on the lack of evidence presented by the Government as to his knowledge of his prohibited status at trial or elsewhere in the record. Doc. 8 at 10. Of course, the Government did not present any evidence of Cross’ drug use or past felonies because Cross stipulated to those facts. Nor did it present evidence of Cross’ knowledge of his relevant status, as Cross did not raise the issue and Rehaif had not yet been decided. The relevant question is whether it is more likely than not that no reasonable juror would have convicted him had the jury been given the correct instruction and the Government had the opportunity to submit evidence of the omitted element.
Cross does not present any evidence of his actual innocence. Indeed, his argument appears to be based on a legal insufficiency rather than factual innocence. However, I will address the merits of the argument given that the Government has responded by citing evidence in support of the knowledge element. The Government argues the following evidence establishes Cross’ knowledge of his relevant status:
• During the execution of a search warrant at the house Cross was found in, officers found firearms, ammunition, marijuana pipes and methamphetamine in Cross’ rooms. Officer Paul Yaneff explained to Cross that he could not legally possess firearms or ammunition because he was a convicted felon. Cross did not deny that he was a convicted felon but denied his actual possession of the firearms and ammunition. Yaneff's testimony established Cross’ possession of the firearm and ammunition. Cross’ DNA was also found on the firearm. See Crim. Doc. 105 at ¶ 9; Crim. Doc. 91 at 58-59.
• At trial, Cross stipulated to the fact that he had been convicted of at least one felony crime punishable by imprisonment for more than one year and that on June 4, 2016, he was an unlawful user of an illegal drug.
• During a jail call between Cross and his girlfriend, Cross tried to convince his girlfriend to say she owned the gun stating, "think about me and my background and you and your background" and told her "I'm going away for the fucking rest of my life, dude – are you kidding me?"
The stipulation provided that "at some time before June 4, 2016, defendant had been convicted of at least one felony crime punishable by imprisonment for more than one year" and "that on or about June 4, 2016, defendant was an unlawful user of an illegal drug." Crim. Doc. 92 at 73.
See Government Exhibits 5a and 5b.
Doc. 3 at 7-8.
Courts have held that a reasonable jury could infer the requisite knowledge from a defendant's stipulation to a prior felony conviction. See United States v. Conley , 802 F. App'x 919, 923 (6th Cir. 2020) (stating that while a stipulation to a prior felony status "does not automatically establish knowledge of felony status, it is strongly suggestive of it."). Cross argues the stipulation is insufficient because it established the fact of his prohibited status, not his knowledge of it. Doc. 8 at 8. He argues the jail call does not establish knowledge of his status at the time he possessed the firearm. Id. at 8-9. He contends that the felony offense of terroristic threats is also not enough to demonstrate knowledge because Cross was released on parole after serving approximately nine months. Id. That sentence was also imposed as a probation violation. He states this leaves significant room for doubt as to whether he knew the offense underlying the probation violation was a felony and that he is entitled to argue that doubt to a jury.
Cross has a second felony conviction of possession with intent to deliver marijuana from 2014.
The Eighth Circuit has assumed that a defendant's stipulation does not resolve the issue of whether he knew he was a felon. See United States v. Hollingshed , 940 F.3d 410, 415 (8th Cir. 2019) ("we will assume that Hollingshed's stipulation does not resolve the issue of whether he knew he was a felon."). The Government cites Hollingshed and United States v. Owens , 966 F.3d 700 (8th Cir. 2020), for the proposition that Cross knew he was a felon based on his criminal history. See Doc. 3 at 8-9. In Hollingshed , the defendant had pleaded guilty to possession with intent to distribute cocaine in 2001, was sentenced to 78 months’ imprisonment and served about four years before he began supervised release. Id. at 415-16. He then served an additional 15 months’ imprisonment when his supervised release was revoked. Id. In Owens , the Eighth Circuit found ample evidence that defendant knew he was a felon based on his criminal record, which consisted of eight felonies in 1990 that resulted in a sentence of 80 years’ imprisonment, with defendant actually serving 22 years. 966 F.3d at 706.
Here, Cross has two prior felonies: (1) a 2012 conviction for terroristic threats for which he received 24 months’ probation, but was sentenced to 20 to 36 months’ imprisonment following a probation violation, and (2) a 2014 conviction for possession with intent to deliver a controlled substance for which he received five years’ imprisonment, suspended. Crim. Doc. 105 at ¶¶ 29, 30. Because Cross did not actually serve over a year in prison for either of these convictions, I do not find Hollingshed and Owens to be persuasive as establishing a basis for Cross’ knowledge of his status as a felon. See also United States v. Welch , 951 F.3d 901, 907 (8th Cir. 2020) (concluding it was not reasonably probable that, if the Government had to prove defendant's knowledge of a previous conviction for "a crime punishable by imprisonment for a term exceeding one year," he would have been acquitted given that he had received and served several prison sentences longer than one year); Bugh , 459 F. Supp. 3d at 1189-90 (concluding the government would undoubtedly have proven defendant's knowledge of his status as a felon based on his 10 felony convictions, for which defendant actually served more than a year in prison for most of those convictions).
The Presentence Investigation Report indicates this was in violation of Nebraska Statute § 28-311.01, which states that terroristic threats is a Class IIIA felony.
Cross served approximately nine months of this sentence before he was paroled. Crim. Doc. 105 at ¶ 29.
With regard to the jail call, this took place after Cross’ arrest and does not establish knowledge of his relevant status at the time of possession. Similarly, Officer Yaneff's comments to Cross at the scene were made after-the-fact and have little to no bearing on Cross’ knowledge at the time he possessed the firearm earlier that day. Based on knowledge of his felony status alone, and the evidence cited by Government in its response, I find that Cross has raised a legitimate issue as to whether reasonable jurors would have convicted him if the jury been given the correct instruction and the Government had the opportunity to submit evidence of the omitted element. However, Cross’ conviction was also based on his status as an unlawful user of a controlled substance. Cross’ argument as to his knowledge of that prohibited status is much weaker.
The Government cites the stipulation and argues that Cross was not an unknowing drug user, stating that his unlawful drug use was knowing and intentional. It notes that methamphetamine and marijuana smoking devices were found in Cross’ rooms, see Crim. Doc. 105 ¶ 8, and that Cross has both (1) a prior adjudication for possession of marijuana as a juvenile in 2008 and (2) a felony conviction for possession with intent to distribute marijuana from 2014. Doc. 3 at 10 (citing Crim. Doc. 105 ¶¶ 26, 26A, 30). Cross argues the stipulation at trial does not reflect his knowledge at the time he possessed the firearm. Doc. 8 at 9-10.
The Eighth Circuit Model Jury Instruction provides two different suggested definitions under section 922(g)(3) of one who "is an unlawful user of or addicted to any controlled substance." The first is:
a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of [a] controlled substance[s] during the time [he] [she] possessed the [firearm] [ammunition], but the law does not require that [he] [she] used the controlled substance[s] at the precise time [he] [she] possessed the [firearm] [ammunition]. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. [An inference that a person [was] [is] a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the [firearm] [ammunition] was possessed.]
See Eighth Circuit Criminal Model Jury Instruction 6.18.922B. The term "drug addict" means "any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of a controlled substance as to have lost the power of self-control with reference to [his] [her] addiction." Id. Under Rehaif , the Government would need to prove Cross’ knowledge of being "an unlawful user of or addicted to any controlled substance" under these definitions. The Indictment charged Cross with possession "[o]n or about June 4, 2016." Crim. Doc. 2. Cross’ knowledge in 2008 and 2014 about his status as an unlawful user of a controlled substance, or as a drug addict, has little relevance to his knowledge on or about June 4, 2016, when he possessed the firearm.
At trial, there was no evidence presented about Cross’ drug use due to the stipulation. As noted above, the stipulation provided "that on or about June 4, 2016, defendant was an unlawful user of an illegal drug." Crim. Doc. 92 at 73. I find that reasonable jurors could draw a strong inference of Cross’ knowledge based on his stipulation that he was an unlawful user of a controlled substance on the relevant date. Cross argues the stipulation establishes only the fact of his status as a drug user, not his knowledge of it. However, it is hard to fathom how Cross could admit to being an unlawful user of a controlled substance on June 4, 2016, without having had knowledge of that status on that date. Moreover, even without the stipulation, evidence of the methamphetamine and marijuana smoking devices found in Cross’ room is strong evidence that he was an unlawful user of a controlled substance (or substances) at the time he possessed the firearm. Cross has not demonstrated that it is more likely than not that no reasonable juror would have convicted him had the jury been given the correct instruction and the Government had the opportunity to submit evidence as to his knowledge.
Cross has not demonstrated actual innocence to overcome his procedural default. His argument is based on a legal insufficiency rather than factual innocence. Even if this could be considered an appropriate basis to argue actual innocence, his argument still fails. While the Government's evidence as to Cross’ knowledge of his status as a felon arguably falls short, its evidence of Cross’ knowledge of his status as an unlawful user of a controlled substance is sufficiently strong to make it unlikely that a reasonable jury would have acquitted Cross. Cross’ procedural default is not excused by a showing of actual innocence.
2. Cause and Actual Prejudice
With regard to cause and actual prejudice, Cross argues he had cause for failing to raise the knowledge issue on direct appeal because the claim was "so novel that its legal basis [was] not reasonably available to counsel." Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). The Government argues this exception does not apply because the question presented in Rehaif was litigated in the appellate courts over the last three decades. Doc. 3 at 5-6. The Government contends contrary precedent does not constitute cause for Cross’ failure to raise his Rehaif challenge on appeal and, in any event, he has not demonstrated actual prejudice. Id. at 6. The Supreme Court has held that "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that time." Bousley , 523 U.S. at 622, 118 S.Ct. 1604. However, cause may be shown if the claim "is so novel that its legal basis is not reasonably available to counsel." Id.
Cross argues the underlying principle behind the procedural default doctrine is judicial economy. Doc. 8 at 4. He states that both Bousley and Lindsey v. United States , 615 F.3d 998 (8th Cir. 2010), stand for the proposition that issues which are litigated close in time to a defendant's direct appeal are reasonably available to counsel. Id. at 5. In Bousley , the defendant pleaded guilty in 1990 to "using" a firearm in violation of 18 U.S.C. § 924(c)(1). Bousley , 523 U.S. at 616, 118 S.Ct. 1604. In 1995, the Supreme Court held that the "use" prong under section 924(c)(1) required the Government to show "active employment of the firearm." Bailey v. United States , 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). When Bousley raised this issue on collateral relief, the court found it was procedurally defaulted because the claim was reasonably available to counsel on direct appeal. See Bousley , 523 U.S. at 622, 118 S.Ct. 1604 ("Indeed, at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges to the notion that ‘use’ is synonymous with mere ‘possession.’ ").
In Lindsey , the defendant pleaded guilty and was adjudicated a career offender in 2006. Lindsey , 615 F.3d 998, 999 (8th Cir. 2010). He brought a § 2255 motion to argue he was improperly sentenced as a career offender under Begay v. United States , 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). When Lindsey entered his plea in 2006, the Eighth Circuit had taken up the issue that was decided in Begay but reached the opposite outcome. Because the issue was being litigated at the time Lindsey entered his plea, and in the same timeframe that he filed his appeal, the Eighth Circuit concluded he did not have cause for procedural default. 615 F.3d at 1000-01.
Distinguishing these cases from his own, Cross notes he was convicted in 2016 and sentenced in 2017. His appeal was decided in 2018 and his writ of certiorari to the Supreme Court denied in 2018. Unlike the situation in Bousley and Lindsey , in which the issues were being actively litigated at or near the time of the defendants’ direct appeals, Cross argues the Rehaif issue had not been raised in the Eighth Circuit for eight years before his direct appeal was decided. Doc. 8 at 6 (citing United States v. Thomas , 615 F.3d 895 (8th Cir. 2010) ). He contends the Government's reference to "three decades" of precedent in the Eighth Circuit that is contrary to Rehaif demonstrates why the Rehaif issue was novel and not "reasonably available" on direct appeal, supporting a finding of cause.
Cross is correct that before Rehaif , the issue was firmly resolved in the Eighth Circuit. See United States v. Thomas , 615 F.3d 895, 899 (8th Cir. 2010) (rejecting defendant's argument that government had to prove defendant knew of his status as a felon); United States v. Kind , 194 F.3d 900, 907 (8th Cir. 1999) ("it is well settled in this circuit that the government need only prove defendant's status as a convicted felon and knowing possession of the firearm."). However, under Bousley , this is not enough to establish cause, as the novelty of an issue is not limited to the specific circuit in which the case is pending. See Bousley , 523 U.S. at 622, 118 S.Ct. 1604 ("futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’ " (quoting Engle v. Isaac , 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) )).
A majority of courts have rejected Rehaif challenges for this reason. See United States v. Bryant , No. 11-CR-765, 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020) ("The issue decided in Rehaif was percolating in the courts for years."); United States v. Catlett , Criminal Action No. 10-324-1, 2020 WL 5982266, at *2 (E.D. Pa. Oct. 8, 2020) ("it cannot be said that the question in Rehaif was novel where it was repeatedly litigated in circuit courts."); Dawkins v. United States , Case Nos. 20-80987-CV-BLOOM, 2020 WL 4936978, at *3 (S.D. Fla. Aug. 24, 2020) ("Movant's Rehaif claim is not novel because the issue it presents was repeatedly and thoroughly litigated in the courts of appeals for decades."); Ramsey v. United States , Case No. 4:19CV2643 SNLJ, 2020 WL 5230891, at *10 (E.D. Mo. Sept. 2, 2020) (" Rehaif was thoroughly and repeatedly litigated in the courts of appeals over the last three decades, and as such, it does not qualify under the novelty exception."); United States v. Murphy , No. 1:13-cr-060, 2020 WL 1891791, at *2 (M.D. Pa. Apr. 16, 2020) ("[T]he issue decided in Rehaif was not so novel that its legal basis was not reasonably available to Murphy in the first instance."). But see United States v. Torres , Case No. 2:11-CR-141 JCM, 2020 WL 5518606, at *3 (D. Nev. Sept. 14, 2020) ("Petitioner appropriately satisfies ‘cause’ not to raise the issue of Rehaif on direct appeal. At the time, Ninth Circuit law found in opposite to Rehaif . "); Rosario Figueroa v. United States , 16-CV-4469 (VEC), 2020 WL 2192536, at *5 (S.D.N.Y. May 6, 2020) (finding Petitioner had sufficiently demonstrated cause for failure to raise the claim on direct appeal because Rehaif overturned an interpretation of 18 U.S.C. § 922(g) that had "been adopted by every single Court of Appeals to address the question" (quoting Rehaif , 139 S. Ct. at 2201 (Alito J., dissenting))).
Given that the Rehaif issue was being litigated in other circuit courts of appeal during the time that Cross went to trial and appealed his conviction, the issue cannot be considered novel under Bousley . Therefore, Cross has not demonstrated cause for his procedural default. Absent a showing of cause, there is no need to consider whether Cross can establish actual prejudice.
V. CERTIFICATE OF APPEALABILITY
In a § 2255 proceeding before a district judge, the final order is subject to review on appeal by the court of appeals for the circuit in which the proceeding is held. 28 U.S.C. § 2253(a). However, unless a circuit judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. § 2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability under § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson , 122 F.3d 518, 522 (8th Cir. 1997). Under § 2253(c)(2), a certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell , 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Tiedeman , 122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See Miller-El , 537 U.S. at 335–36, 123 S.Ct. 1029 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds. " ‘[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he [movant] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.’ " Miller-El , 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ). When a motion is dismissed on procedural grounds without reaching the underlying constitutional claim, "the [movant must show], at least, 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." See Slack , 529 U.S. at 484, 120 S.Ct. 1595.
Having thoroughly reviewed the record in this case, I find that Cross failed to make the requisite "substantial showing." See 28 U.S.C. § 2253(c)(2) ; Fed. R. App. P. 22(b). Accordingly, a certificate of appealability will not issue. If he desires further review of his § 2255 motion, Cross may request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman , 122 F.3d at 520–22.
VI. CONCLUSION
For the reasons discussed above, Cross’ motion (Doc. No. 1) under 28 U.S.C. § 2255 is denied as to all claims and this action is dismissed with prejudice . No certificate of appealability shall issue.