Opinion
Civil 3:20-cv-47 CRIMINAL 3:17-cr-51 (CAR)
08-04-2023
DONTAVIOUS MAURICE JACKSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
Proceedings Under 28 U.S.C. § 2255 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Before the Court is a motion to vacate, set aside or correct sentence filed by Dontavious Maurice Jackson under 28 U.S.C. § 2255. (Docs. 59, 61, 63, 77). Movant contends that his plea of guilty to the charge of possession of a firearm by a convicted felon is invalid under Rehaif v. United States, 139 S.Ct. 2191 (2019), because he did not stipulate that he was knowingly a convicted felon. Because Movant did not raise this argument on direct appeal, his claim is procedurally defaulted, and he has failed to show cause and prejudice for this default or to show his actual innocence. Moreover, his claim would also fail on the merits, as he waived any non-jurisdictional defenses by entering a guilty plea and has not shown that his plea was not entered knowingly and voluntarily. Accordingly, it is RECOMMENDED that Jackson's Section 2255 motion be DENIED.
PROCEDURAL BACKGROUND
On November 15, 2017, a federal grand jury returned, in this Court, a two-count indictment charging Movant with (1) possession of marijuana with intent to distribute in violation of 21 U.S.C. § 844(a)(1), and (2) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Doc. 1, pp. 1-2). On October 1, 2018, Movant entered a plea of guilty to count two of the indictment. (Doc. 31). In a written plea agreement, Movant stipulated to the following facts:
On August 29, 2017, members of the Northeast Georgia Regional Drug Task Force, and the Athens-Clarke County Police Department, executed a search warrant for 140 Morningview Drive in Athens, Georgia. The search warrant was for marijuana and items associated with the distribution of marijuana. Dontavious Jackson was the primary target of the search warrant. Jackson was present when the search warrant was executed.
Two large baggies of marijuana were located in the toilet of the master bathroom. One of the baggies was stuck in the bottom of the drain of the toilet, and another was floating on the top of the water. Also located in the bathroom were five (5) additional bags of marijuana, next to the toilet.
In the living room, officers located a Ruger LCR, .38 caliber special revolver, serial number 543-18960. Also located within the living room: a digital scale covered in marijuana residue, an open box of plastic sandwich baggies, a plastic baggie with corners torn off and a digital scale located on top of a speaker. Officers located an additional bag of marijuana in the master bedroom, as well as multiple vacuum seal bags containing marijuana residue. In the laundry room, two additional firearms were located, including a Ruger 9mm pistol and an H&R model 929 .22 caliber revolver.
During the investigation, officers were able to download the contents of Defendant's cell phone. The phone contained images of large quantities of marijuana and a digital scale. Text messages confirmed that distribution of marijuana was taking place. The marijuana was later tested by Robin Floyd and was confirmed positive for marijuana. The total net weight was 202.2 grams. (7 oz.) The total net weight tested was 144.6 grams, or 5.1 oz.
Officers located mail addressed to “Don” Jackson in the kitchen and a box of .38 special ammunition. The firearm was manufactured in Newport, New Hampshire, therefore interstate commerce was affected.
Jackson has been previously convicted of the following felonies:
1. February 21, 2012, Jackson County Superior Court for Fraud in Obtaining Controlled Substance in Case No. B12CR0033;
2. December 22, 2008, Clarke County Superior Court for Entering an Automobile in Case No. SU-08-2093; and
3. August 11, 2011, Clarke Superior Court for Forgery in the First Degree, in Case No. SU-11-CR-0623.
Jackson now admits that he was a prohibited person at the time he possessed the firearm.(Doc. 32, pp. 9-10).
At his plea hearing, Movant testified that this stipulation was true and truly described what took place in this case. (Doc. 52, p. 12). The written plea agreement contained a waiver of appeal, in which Movant waived any right to appeal his sentence, except in the event the Court imposed a sentence that exceeded the advisory guideline range as calculated by the Court. (Doc. 32, pp. 3-4). Movant was sentenced on March 5, 2019, to a term of 110 months in prison, the bottom of a Guidelines range of 110-120 months that was based on a total offense level of 25 and a criminal history category of VI. (Doc. 53, p. 2).
Movant appealed his sentence to the Eleventh Circuit Court of Appeals, contesting the Court's two-level enhancement of the base offense under U.S.S.G. § 2K2.1(a)(4)(B) and (b)(1)(A), which was based on a factual finding that Movant possessed at least three but less than seven firearms. The Eleventh Circuit affirmed the sentence in an order dated February 20, 2020. (Doc. 57).
Movant filed a timely Section 2255 motion on April 10, 2020, which raised two claims of ineffective assistance of counsel at the plea stage and at sentencing.(Doc. 59). On May 8, 2020, Movant filed a supplemental motion, in which he added claims of ineffective assistance of counsel based on Rehaif v. United States. 139 S.Ct. 2191 (2019). On June 19, 2020, the Court appointed counsel to represent Movant and later stayed the case pending the outcome of an appeal in United States v. Roosevelt Coats III, a case pending before the Eleventh Circuit. The Eleventh Circuit issued its opinion in Coats on August 12, 2021. United States v. Coats, 8 F.4th 1228 (11th Cir. 2021). Movant's counsel filed an amended motion on November 21, 2021, raising five claims: (1) Movant's guilty plea was constitutionally involuntary; (2) Movant's guilty plea was involuntary under Rule 11 of the Federal Rules of Criminal Procedure; (3) Movant's guilty plea was not supported by an adequate factual basis; (4) Movant's indictment was inadequate under the Fifth Amendment; and (5) Movant's indictment was inadequate under the Sixth Amendment.
Movant filed an amended petition (Doc. 61) on April 21, 2021, which merely added a signature to his previously filed motion.
ANALYSIS
In June 2019, after Movant was sentenced and while his direct appeal was pending, the Supreme Court decided Rehaif v. United States. In Rehaif, the Court interpreted the statutory language of 18 U.S.C. § 922(g) and § 924(a)(1) to hold that the mens rea element of § 924(a)(1) applied to both elements of the charge of possession of a firearm by a convicted felon. At the time Rehaif was decided, 18 U.S.C. § 924(a)(1) provided that “[w]hoever knowingly violates [§ 922(g)] shall be . . . imprisoned not more than 10 years.”(emphasis added). Section 922(g)(1) makes it unlawful for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess any firearm which has been shipped or transported in interstate or foreign commerce. The Court thus held that “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.” Rehaif, 139 S.Ct. at 2200.
The statute has since been amended to provide, at 18 U.S.C. § 924(a)(8), that whoever knowingly violates § 933(g) shall be imprisoned for not more than 15 years. Pub.L. 117-159, Div.A, Title II, § 12004(c), June 25, 2022, 136 Stat. 1329.
Rehaif reversed a decision of the Eleventh Circuit Court of Appeals which held that the “knowingly” mens rea requirement applied only to the possession element of 922(g) and not to the status element. See United States v. Rehaif, 888 F.3d 1138 (11th Cir. 2018).
In a case under 922(g), then, the Government must prove that at the time of the offense the defendant knew that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year. The Government does not have to prove, however, that the defendant knew that he was prohibited from possessing a firearm under federal law, as the Eleventh Circuit has explained:
[U]nder Rehaif's knowledge-of-status requirement, that a defendant does not recognize that he personally is prohibited from possessing a firearm under federal law is no defense if he knows he has a particular status and that status happens to be one prohibited by § 922(g) from possessing a firearm. United States v. Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). Rather, that is a mistake of law, which is not a defense. See [Liparota v. United States, 471 U.S. 419, 425 n.9, 105 S.Ct. 2084 (1985)]. As we have mentioned, “a defendant generally must ‘know the facts that make his conduct fit the definition of the offense,' even if he does not know that those facts give rise to a crime.” [Elonis v. United States, 135 S.Ct. 2001, 2009 (2015) (quoting Staples v. United States, 511 U.S. 600, 608 n.3, 114 S.Ct. 1793 (1994))].United States v. Johnson, 981 F.3d 1171, 1189 (11th Cir. 2020)
I. Movant's Claims Are Procedurally Defaulted
In his amended motion, Movant argues that his guilty plea was not knowing and voluntary and that the indictment against him was insufficient. These are claims that could have been raised on direct appeal but were not. Section 2255 is not a substitute for appeal (Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)), and claims not raised on appeal generally are procedurally defaulted, meaning they “may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). In addition to showing cause and prejudice, there are three other ways that movants can overcome a procedural default. First, a movant “can raise a claim for the first time on collateral review without demonstrating cause and prejudice, if the alleged error is jurisdictional.” United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020). Second, a Movant may overcome a procedural default by showing that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Lynn, 365 F.3d at 1234. A “gateway” showing of actual innocence requires a showing of “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). A third route for overcoming procedural default, and the most common approach in Section 2255 actions, is to raise the claims in the context of ineffective assistance of counsel either at the trial level or at the appellate level.
In this case, Movant has shown neither cause nor prejudice for failing to raise these issues on direct appeal, Movant cannot make a plausible showing of actual innocence, and the claims Movant raises are not jurisdictional Although Movant does not raise ineffective assistance of counsel in his amended motion, the record of this case makes plain that Movant would not have a viable claim of ineffective assistance.
Movant did raise ineffective assistance of counsel in his original, pro se motions.
A. Movant has not shown cause and prejudice to excuse his default.
1. Cause
Generally, to show cause for a procedural default, a movant must show that “some objective factor external to the defense” prevented the movant from raising the claims on direct appeal and that “this factor cannot be fairly attributable to [the movant's] own conduct.” Lynn, 365 F.3d at 1235. Movant argues that “[t]he novelty of claims based on Rehaif is cause for [his] failure to raise them at trial or on direct appeal.” (Doc. 77, p. 14). The novelty of a claim may constitute cause for excusing a procedural default, “but only when the claim is truly novel, meaning that ‘its legal basis [was] not reasonably available to counsel.'” Bane, 948 F.3d at 1296-97 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). In such cases, “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.
Although the Supreme Court had not decided Rehaif at the time Movant pled guilty and was sentenced, the legal basis of the claim- that the “knowingly” mens rea of § 924(a)(1) applied to both the possession and status elements of § 922(g)- was reasonably available at the time. Movant entered his guilty plea on October 1, 2018. The Eleventh Circuit had issued its opinion in Rehaif six months earlier, on March 26, 2018. In its opinion, the Eleventh Circuit acknowledged a circuit split on the issue, noting that then-judge of the Tenth Circuit Neil Gorsuch had written an opinion finding that “the plain language of the statute compelled the opposite conclusion.” Rehaif, 888 F.3d at 1143 (citing United States v. Games-Perez, 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment)). The Supreme Court granted a writ of certiorari in Rehaif on January 11, 2019, less than two months before Movant was sentenced. The Supreme Court's decision in Rehaif was based upon a question of statutory interpretation that was known to be in dispute at the time Movant entered his plea. As the Eleventh Circuit observed in Bane, “[a]n argument for an interpretation of a statute that is consistent with its ordinary meaning and structure is not something that counsel would not be aware of or that courts would ‘reject . . . out of hand.'” Bane, 948 F.3d at 1297. Citing Bane, a later panel of the Eleventh Circuit has noted that “Rehaif was not ‘truly novel' in the sense necessary to excuse procedural default.” United States v. Innocent, 977 F.3d 1077, 1084 (11th Cir. 2021).
2. Prejudice
Even if the novelty of Rehaif did constitute cause for Movant's failure to raise an objection at the trial level or on direct appeal, he cannot show that he was prejudiced by the error. To establish prejudice, Movant must show that an error “of constitutional dimensions” worked to his “actual and substantial disadvantage.” Bane, 948 F.3d at 1297 (quoting Fordham v. United States, 706 F.3d 1345, 1350 (11th Cir. 2013)). To establish actual prejudice in the case of his guilty plea, Movant would have to show that he would not have entered his plea if he had known that the Government was required to prove that he knew, at the time he possessed the firearms, that he had previously been convicted of a crime punishable by a term of imprisonment exceeding one year. Movant has not presented any evidence to make such a showing, and there is no plausible evidence that he could present. At his plea hearing, Movant acknowledged that he had previously been convicted of three felony offenses. (Doc. 52, p. 12). The presentence report shows that Movant (1) was adjudicated guilty on August 11, 2011, on three separate indictments for entering an automobile with intent to commit a theft and was sentenced to three years confinement (Doc. 42, p. 9-11, ¶¶ 45, 50, 54); (2) pled guilty to forgery in the first degree and was sentenced on February 10, 2012, to three years confinement (Id., at 11, ¶ 57); and (3) pled guilty to fraud in obtaining a controlled substance and was sentenced on February 21, 2012 to three years confinement (Id., at 11, ¶ 60). The PSR indicates that Movant actually served 21 months in prison on those convictions, from August 8, 2011, until he was released on parole on May 15, 2013.
There is no evidence to indicate that Movant was somehow unaware, on August 29, 2017, that he had previously been convicted- and sentenced to prison- in three different felony cases. And it is difficult to imagine any evidence that could do so. As the Supreme Court has observed:
In 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.” [United States v. Gary, ] 963 F.3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh'g en banc). 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. A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.Greer v. United States, ___U.S.___, 141 S.Ct. 2090, 2097 (2021). Movant has shown nothing that would suggest he would have decided to go to trial had he known that the Government was required to prove that he was knowingly convicted of prior felony offenses, as there is nothing to suggest that he did not know of those convictions. As such, he cannot show any prejudice resulting from his failure to perceive the Rehaif issue.
B. The Defect in the Indictment Is Not Jurisdictional
Movant cannot overcome procedural default by showing that the defect in his indictment was jurisdictional because the indictment in this case was sufficient to give the Court subject matter jurisdiction over the case. The law is clear that “the omission of an element in an indictment does not deprive the district court of subject matter jurisdiction. A defective indictment only affects jurisdiction when it fails to allege an offense against the United States.” United States v. Moore, 954 F.3d 1322, 1336 (11th Cir. 2020). An indictment is sufficient to establish jurisdiction if it tracks the statutory language and states approximately the time and place of an alleged crime. Id. at 1332. In Moore, the Eleventh Circuit held that an indictment using language essentially identical to the indictment in this casewas sufficient to establish jurisdiction, even if it omitted the mens rea element required under Rehaif:
The indictment in this case is slightly more complete than the indictment in Moore, in that it references both 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2), whereas the indictment in Moore cites only § 922(g). The court in Moore found that this omission was also not a jurisdictional defect, as § 922(g) provides the actual criminal prohibition, whereas § 924(a)(2) “is confined to stating the penalties for violating § 922(g).” Moore, 954 F.3d at 1337.
While the indictment does not allege that Appellants were aware of their status as felons at the time they possessed the firearms, the text of 18 U.S.C. § 922(g) contains no such requirement. In Rehaif, the Supreme Court interpreted the statutory language of 18 U.S.C. § 922(g) as requiring a defendant to have knowledge of his status. Reading this knowledge requirement into the statute while also holding that indictments tracking the statute's text are insufficient would be incongruous. Although the government may be well advised to include such mens rea allegations in future indictments, that language is not required to establish jurisdiction.Id. at 1333.
C. Movant Has Not Shown that He Is Actually Innocent of the Charge
The actual innocence exception can be used as a “gateway” to excuse a procedural default, where a movant “can show that he is actually innocent of . . . the crime of conviction.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). Actual innocence, in the context of this exception, “means factual innocence, not mere legal insufficiency.” Id. at 1196. To show actual innocence, “a movant ‘must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'” Id., quoting Schlup v. Delo, 513 U.S. 298, 327 (1995). As noted above, Movant has presented no evidence to show that he did not know he was a convicted felon at the time of the offense, much less sufficient evidence to make it more likely than not that no reasonable juror would have found him guilty.
D. The Record Does Not Support a Claim of Ineffective Assistance of Counsel
Although Movant does not raise a claim of ineffective assistance of counsel in his amended motion, it is worth noting that the record of this case would not support such a claim. Claims of ineffective assistance of counsel are generally not subject to procedural default, as they cannot be raised prior to a collateral attack. Such claims are considered under the standard set by the Supreme Court's decision in Strickland v. Washington. 466 U.S. 668 (1984). To obtain relief under Strickland, a Section 2255 movant must demonstrate both (1) deficient performance, meaning “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment,” and (2) prejudice, meaning “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687, 694.
On the record before the Court, Movant cannot meet either prong of the Strickland standard. First, Movant cannot show deficient performance because at the time Movant entered his plea, circuit precedent held that the “knowing” mens rea element of § 922(g) applied only to the possession of the firearm, not to the defendant's status as a convicted felon. Strickland's guarantee of reasonably effective representation “cannot and does not include a requirement to make arguments based on predictions of how the law may develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994). Even if counsel had anticipated the Supreme Court's decision to overrule the Eleventh Circuit in Rehaif, a decision to advise Movant to go forward with the plea would have been “within the wide range of reasonable professional assistance” Strickland acknowledges. It would not have been reasonable for counsel to advise Movant to go to trial on the remote hope that the Government would be unable to prove that Movant knew, at the time he possessed the firearm, that he had previously been convicted of an offense “punishable by imprisonment for a term exceeding one year.” Movant stipulated that he had been convicted of three such crimes. The presentence report shows that Movant actually served nearly two years in prison on those sentences before being released on parole. As the Supreme Court noted in Greer, cited above, that “is simply not the kind of thing one forgets.” Greer, 141 S.Ct. at 2097. It would also have been within the range of reasonable representation for counsel to decide not to insist upon adding a sentence to the stipulation of fact noting that Movant was aware he was a convicted felon at the time of the offense or requiring the Government to present a superseding indictment to the grand jury on such an obvious fact. That would have served only to delay the resolution of the case.
For the same reasons, Movant cannot show that he was prejudiced by any failure to object to the sufficiency of the indictment or the factual stipulation in the plea agreement. “To establish prejudice in the context of a guilty plea, a defendant must show that there is ‘a reasonable probability that, but for counsel's error, he would not have pleaded guilty but would have insisted on going to trial.'” Robinson v. United States, 2021 WL 6551365, *1 (11th Cir., Nov. 5, 2021) (quoting Premo v. Moore, 562 U.S. 115, 129 (2011)). There is nothing in the record to suggest that Movant would have insisted on going to trial had he known about the mens rea element required by Rehaif, and it is highly unlikely that any such showing could be made. See United States v. Bates, 960 F.3d 1278, 1296 (11th Cir. 2020) (“Had Bates known that the Government needed to prove that he knew he was a felon, the probability is virtually zero that it would have changed his decision to plead guilty.”)
II. Movant's Claims Fail on the Merits
Even if Movant's claims were not procedurally defaulted, they would not succeed on their merits. Movant's five specific claims fall into two categories: claims that his indictment was insufficient and claims that his guilty plea was involuntary or inadequate under Rule 11. Movant's claims that his indictment was insufficient are foreclosed because the entry of a guilty plea waives challenges to the sufficiency of an indictment except for challenges raising jurisdictional defects. Movant's claims that his guilty plea was involuntary or inadequate are not supported by the record.
A. Claims Regarding the Sufficiency of the Indictment Are Waived
Movant raises two specific claims related to the sufficiency of the indictment. He argues that the indictment was insufficient under the Fifth Amendment because it did not set forth all the elements of the crime and insufficient under the Sixth Amendment because it did not give him fair notice of the crime alleged. These claims are foreclosed by Movant's guilty plea. “A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). As explained above, the indictment's failure to state the correct mens rea element of the crime is not a jurisdictional defect. See Moore, 954 F.3d at 1332-37; Bates, 960 F.3d at 1295. Even if Movant had not waived the claims by the entry of a plea, the Rehaif defect in the indictment would not have warranted relief. In cases where a defendant was convicted at trial before the Rehaif decision and filed a direct appeal after the Rehaif decision, courts have reviewed the conviction for plain error. See Moore, 954 F.3d 1322; United States v. Reed, 941 F.3d 1018 (11th Cir. 2019). In such cases, the defendant must show that the error affected his substantial rights, ordinarily by showing “a reasonable probability that, but for the error the outcome of the proceeding would have been different.” Moore, 954 F.3d at 1337 (quoting Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)). In Moore and in Reed, the court rejected the defendant's Rehaif challenges, finding that the Rehaif error did not affect the defendant's substantial rights because the defendants “cannot establish that they were unaware of their felon status when they possessed firearms due to the nature of their prior felonies.” Moore, 954 F.3d at 1338. In this case as well, where Movant stipulated that he had previously been convicted of three crimes, for each of which he was sentenced to a term of three years in prison, and for which he actually served nearly two years in prison before being paroled, there is nothing in the record to suggest that Movant was somehow unaware of these experiences at the time he possessed the firearm in question.
B. Movant Cannot Show the His Plea Was Not Knowing and Voluntary
Movant contends that his guilty plea (1) was constitutionally involuntary because he did not receive “real notice of the true nature of the charge against him,” (2) was involuntary in violation of Rule 11 of the Federal Rules of Criminal Procedure because neither the Court nor the Government explained the correct elements of the offense, and (3) was not supported by an adequate factual basis. Had Movant raised these claims on direct appeal, they would have been subject to review for plain error. As noted above, “the third prong of the plain-error test requires a defendant to show that a Rehaif error affected his substantial rights.” United States v. Coats, 8 F.4th 1228, 1237 (11th Cir. 2021). “In the context of a challenge to a guilty plea, this burden requires that a defendant ‘show[ ] that, if the District Court had correctly advised him of the mens rea element of the offense, there is a reasonable probability that he would not have pled guilty.'” Id. at 1237-38 (quoting Greer, 141 S.Ct. at 2097). In an extended analysis, the court in Coats showed why defendant in a Rehaif case is unable to do so without an extraordinary showing. The analysis is directly applicable to this case and warrants an extended quotation:
As any defendant who was convicted pre-Rehaif under § 922(g)(1) was necessarily a felon when he possessed a firearm, the Supreme Court acknowledged
in Greer that carrying this burden will typically be an “uphill climb.” [Greer, 141 S.Ct. at 2097.] As Justice Kavanaugh noted, the reason why this is so is “simple”: “If a person is a felon, he ordinarily knows he is a felon.” Id. Why? Because “[f]elony status is simply not the kind of thing that one forgets.” Id. (quotation marks omitted). Moreover, “[t]hat simple truth is not lost upon juries,” who “will usually find that a defendant knew he was a felon based on the fact that he was a felon.” Id. (emphasis in original).
Given that a prior felony conviction constitutes “substantial evidence” that a defendant knew he was a felon, “a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” Id. at 2097-98, 2100. “When a defendant advances such an argument or representation on appeal, the court must determine whether the defendant has carried the burden of showing a ‘reasonable probability' that the outcome of the district court proceeding would have been different.” Id. at 2100. Absent such an argument or representation, however, a defendant who pled guilty necessarily fails to show a reasonable probability that he would have gone to trial but for the Rehaif error. See id. at 2098 (holding that the defendants could not show prejudice because, “[i]mportantly, on appeal, neither Greer nor Gary 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”).
Here, we conclude that Defendant has not carried his burden to show that the Rehaif error affected his substantial rights. First, Defendant has made no attempt to show that he would not have pled guilty but for the Rehaif error. See id. Although arguing that allowing his guilty plea to stand would be unfair, he has not asserted that he would have gone to trial had he understood the knowledge-of-status element. See United States v. Hicks, 958 F.3d 399, 402 (5th Cir. 2020) (inferring that the defendant had not suffered prejudice given his failure to even assert “that he would have gone to trial if he had been informed of the knowledge of felon status requirement”); see also United States v. Coleman, 961 F.3d 1024, 1030 (8th Cir. 2020) (concluding that the defendant had not shown a reasonable probability that
he would have gone to trial but for the Rehaif error where, among other things, he did “not argue [on appeal] that he would not have pleaded guilty had he known of Rehaif” and did “not assert that he in fact” was “unaware of his felon status”).
Defendant's failure to attempt an explanation as to why awareness of the knowledge-of-status element would have caused him to reconsider his choice to plead guilty is unsurprising. The record here demonstrates that the Government could have readily proven beyond a reasonable doubt that Defendant had the relevant knowledge. See United States v. Bates, 960 F.3d 1278, 1296 (11th Cir. 2020) (finding no prejudice because, “[h]ad the government been required to prove that [the defendant] knew he was a felon at the time he possessed a firearm, there is overwhelming evidence to show that it would have easily done so”); United States v. McLellan, 958 F.3d 1110, 1118, 1120 (11th Cir. 2020) (finding no prejudice where “the record reveal[ed] no basis for concluding that the government would have been unable to prove that [the defendant] knew he was a felon when he possessed the gun”); United States v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019) (“Our own review of the record nevertheless reveals no reason to think that the government would have had any difficulty at all in offering overwhelming proof that [the defendant] knew that he had previously been convicted of offenses punishable by more than a year in prison.”).
Indeed, given Defendant's criminal history, no reasonable juror could have found otherwise. See United States v. Hobbs, 953 F.3d 853, 858 (6th Cir. 2020) (“No reasonable juror could have believed that [the defendant] did not know he had been convicted of a crime punishable by imprisonment for a term exceeding one year” when the defendant “had served six years in prison.” (alterations accepted) (emphasis in original) (quotation marks omitted)); see also United States v. Williams, 946 F.3d 968, 973 (7th Cir. 2020) (noting that the defendant “cannot plausibly argue that he did not know his conviction had a maximum punishment exceeding a year” when he had served more than a year in prison).Id. at 1238-39.
There is nothing of significance to distinguish this case from Coats. As explained above, Movant has offered nothing to show that he would not have entered his guilty had he been informed of the mens rea element required by Rehaif, and it is highly unlikely that he could make such a showing giving the simplicity of proving that he was aware of his status as a convicted felon. See also Bates, 960 F.3d at 1296 (applying similar analysis on plain error review).
EVIDENTIARY HEARING
No evidentiary hearing is needed to resolve Movant's Section 2255 motion. Movant makes no allegations that, if proved true, would entitle him to relief. Rather, for reasons discussed above, “the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §2255(b). See also Rosin v. United States, 786 F.3d 873, 877-78 (11th Cir. 2015) (“an evidentiary hearing is unnecessary when the petitioner's allegations are ‘affirmatively contradicted by the record'”).
CONCLUSION
Because Movant's Rehaif claims are procedurally defaulted and meritless, it is RECOMMENDED that the Court DENY Movant's Section 2255 motion. (Docs. 59, 61, 63, 77). Additionally, because Movant has not made a substantial showing of the denial of a constitutional right, it is further RECOMMENDED that the Court deny a certificate of appealability. See 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Pursuant to 28 U.S.C. § 636(b)(1), the parties 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 thereof. The District Judge will 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.
The parties are further 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.