Opinion
4:13-CR-00003-CDL-MSH 4:20-CV-00124-CDL-MSH
07-28-2021
CHARLES OAKES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court are pro se Petitioner Charles Oakes's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 38) and motion to appoint counsel (ECF No. 39). For the hereinbelow reasons, the Court recommends that Petitioner's motion to vacate be denied. His motion to appoint counsel is denied.
BACKGROUND
On January 9, 2013, a federal grand jury returned a seven-count indictment against Petitioner, charging him with (1) two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 (e)(1), (2) two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), (3) one count of carjacking in violation of 18 U.S.C. § 2119, and (4) two counts of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). Indictment 1-6, ECF No. 1. Following his arrest pursuant to this indictment, Petitioner appeared for an initial appearance on October 28, 2013, and, through counsel, pled not guilty. Minute Entry 1, ECF No. 12; 1st Plea Sheet 1, ECF No. 13. On December 18, 2013, Petitioner pled guilty to one count of possession of a firearm by a convicted felon and one count of possession of methamphetamine with intent to distribute-counts five and seven of the indictment-and the remaining charges were dismissed. Plea Agreement 2-3, 6-7, ECF No. 21; 2d Plea Sheet 1, ECF No. 22; Plea Tr. 17:24-18:24, ECF No. 49; Judgment 1, ECF No. 32.
Petitioner agreed that the Government could prove at trial that on the morning of May 23, 2012, bounty hunters searched for Petitioner because he had missed an Alabama court date, and they located him at a Columbus, Georgia residence. Plea Agreement 8; Plea Tr. 19:12-19:17. The bounty hunters subdued Petitioner outside the residence after he dropped a loaded .223 caliber rifle. Plea Agreement 8; Plea Tr. 19:17-19:19. Muscogee County, Georgia Sheriff's deputies arrived at the scene and took Petitioner into temporary custody. Plea Agreement 8; Plea Tr. 19:20-19:22. Petitioner was immediately transferred to Russell County, Alabama due to outstanding warrants. Plea Agreement 8-9; Plea Tr. 19:22-19:24. Muscogee County Sheriff's deputies searched the residence and discovered two bags and two eyeglass cases containing suspected narcotics, glass smoking pipes, plastic baggies, straws, digital scales, and another bag containing seven smaller bags of suspected methamphetamine. Plea Agreement 9; Plea Tr. 19:25-20:06. The contents of the bags tested positive for methamphetamine. Plea Agreement 9; Plea Tr. 20:06-20:11. A Bureau of Alcohol, Tobacco, Firearms, and Explosives agent interviewed Petitioner at the Russell County, Alabama Jail. Plea Agreement 9; Plea Tr. 20:12-20:14. After he was advised of his rights, Petitioner signed a written waiver of his rights and voluntarily gave a statement. Plea Agreement 9; Plea Tr. 20:15-20:17. He stated that he purchased the rifle from another individual, claimed possession of the bag of drugs, and stated that it contained mostly methamphetamine. Plea Agreement 9; Plea Tr. 20:18-20:21. Petitioner also stated that he did not exit the residence with the rifle, but he threw the rifle down before he exited because he did not intend to harm anyone. Plea Agreement 9; Plea Tr. 20:21-21:01. As part of his plea agreement, Petitioner stipulated that he had previously been convicted of three felonies. Plea Agreement 10; Plea Tr. 21:15-21:25.
The Court sentenced Petitioner to 211 months imprisonment on each count to be served concurrently to each other but consecutively to any state sentence, four years supervised release, and a $200 mandatory assessment. Sen'g Tr. 24:04-26:18, ECF No. 50; Judgment 2-6. Judgment was entered against him on March 25, 2014. Judgment 1. The Court received Petitioner's motion to vacate (ECF No. 38) on June 10, 2020. Respondent responded (ECF No. 41) on July 21, 2020. The Court received Petitioner's first motion for extension of time (ECF No. 42) on August 6, 2020, wherein he requested an additional sixty days to file a reply. 1st Mot. for Extension of Time 1, ECF No. 42. On August 24, 2020, the Court granted in part Petitioner's motion and ordered him to file a reply within thirty days. Order 1, ECF No. 43.
The Court received Petitioner's second motion for extension of time (ECF No. 44) on September 29, 2020, requesting an additional extension of thirty days to file his reply. 2d Mot. for Extension of Time 1, ECF No. 44. On September 30, 2020, the Court granted Petitioner's motion. Text-only Order, ECF No. 46. The Court received Petitioner's third motion for extension of time (ECF No. 47) on November 6, 2020, requesting an extension of sixty days. 3d Mot. for Extension of Time 1, ECF No. 47. On the same day, the Court granted in part Petitioner's motion and ordered him to file a reply within thirty days. Text-only Order, ECF No. 48. Petitioner's reply was due on December 7, 2020-over four months after Respondent filed a response. Petitioner, however, failed to file a reply. His motion to vacate is ripe for review.
DISCUSSION
I. Motion to Appoint Counsel
The Clerk separately docketed Petitioner's motion to vacate (ECF No. 38) as a motion to appoint counsel (ECF No. 39) on June 10, 2020. Therein, he requests appointed counsel and an evidentiary hearing, but he offers no reasons in support. Mot. to Appoint Counsel 1, 3, ECF No. 39.
Criminal defendants are not generally entitled to appointment of counsel for collateral proceedings. See, e.g., Johnson v. Avery, 393 U.S. 483, 487 (“In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing.”). Under Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts, “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” According to that code section, a movant seeking relief under 28 U.S.C. § 2255 may be provided counsel if they are financially eligible and “the United States magistrate judge or the court determines that the interests of justice so require[.]” 18 U.S.C. § 3006A(a)(2).
Under 28 U.S.C. § 2255(b), a petitioner is not entitled to an evidentiary hearing where “the files and records of the case conclusively show that the prisoner is entitled to no relief.” An evidentiary hearing is not required “every time a section 2255 petitioner simply asserts a claim of ineffective assistance of counsel: ‘A hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the petitioner's allegations are affirmatively contradicted by the record.'” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (quoting Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir. 1979)).
Here, as explained more thoroughly below, the Court finds that an evidentiary hearing is not warranted. The facts stated in Petitioner's motion to vacate are not unusually complicated, and the law governing his claims is neither novel nor complex. The Court finds that the interests of justice do not require Petitioner be appointed counsel. Accordingly, Petitioner's motion to appoint counsel (ECF Nos. 39) is DENIED.
II. Motion to Vacate
Petitioner moves to vacate his conviction and sentence for possession of a firearm by a convicted felon, arguing the Government failed to allege or prove that he knew he qualified as a person prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1). Mot. to Vacate 1-3, ECF No. 38. Respondent contends Petitioner's motion should be denied because (1) Petitioner has procedurally defaulted his claim, and (2) Petitioner is not entitled to relief on the merits. Resp. to Mot. to Vacate 5-13, ECF No. 41. The Court recommends that Petitioner's claim be denied for procedural default and, in the alternative, that his claim be denied on the merits.
A. Rehaif v. United States
In support of his motion, Petitioner relies on the Supreme Court's decision in Rehaif v. United States, -- U.S. --, 139 S.Ct. 2191 (2019). See Mot. to Vacate 1-3. In Rehaif, petitioner challenged his conviction for unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). Rehaif, 139 S.Ct. at 2194-95. 18 U.S.C. § 922(g) provides that “[i]t shall be unlawful for any person [who qualifies as a person who falls within a category listed at § 922(g)(1) to (9)] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Prior to the Supreme Court's ruling in Rehaif, in order to convict a defendant of violating 18 U.S.C. § 922(g), the Government was required to prove (1) the defendant qualified as a person prohibited from possessing a firearm among the categories listed in § 922(g), (2) the defendant knowingly possessed a firearm or ammunition, and (3) the firearm or ammunition was transported in interstate commerce. United States v. Rehaif, 888 F.3d 1138, 1143-1147 (11th Cir. 2018), rev'd, 139 S.Ct. 2191 (2019); see also United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (per curiam).
In Rehaif, the Supreme Court held that in order to convict a defendant charged with possession of a firearm in violation of § 922(g), the Government must also prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm[]”-referring to this element as “knowledge of status.” Rehaif, 139 S.Ct. at 2200. In Rehaif, the petitioner's relevant status was an alien “illegally or unlawfully in the United States[.]” 18 U.S.C. § 922(g)(5)(A). The Supreme Court “express[ed] no view . . . about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue [there].” Rehaif, 139 S.Ct. at 2200. Following Rehaif, the Eleventh Circuit has held that an indictment charging a defendant with a violation of § 922(g)(1) must allege the knowledge-of-status element of the offense, and if a defendant pleads guilty, a district court must advise the defendant of the Government's burden to prove this element. See United States v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (noting indictment under § 922(g)(1) is “erroneous” if it does not include knowledge of felon status as an element of the crime); United States v. Thomas, 810 Fed.Appx. 789, 797 (11th Cir. 2020) (“[A]s Rehaif makes plain, the district court erred when it failed to advise [the defendant] during the plea colloquy that knowledge of his status as a felon at the time of his offense was an element of his §§ 922(g) and 924(a)(2) offense that the government must prove.”).
B. Procedural Default
Respondent argues Petitioner's motion to vacate should be denied because the procedural default rule bars him from raising his Rehaif claim. Resp. to Mot. to Vacate 7-11. The Court agrees and recommends that Petitioner's motion be denied on this ground.
1. Procedural Default Standards
“Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (per curiam). “This rule generally applies to all claims, including constitutional claims.” Id. “The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504 (2003). “[P]rocedural default can be excused, however, if one of the two exceptions to the procedural default rule applies. The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011); see also Lomelo v. United States, 891 F.2d 1512, 1515 n.9 (11th Cir. 1990) (“The ‘cause and actual prejudice' standard for federal habeas petitioners mirrors the standard used to evaluate collateral attacks on state convictions.” (citations omitted)).
2. Petitioner's Procedural Default of his Rehaif Claim
Here, Petitioner failed to appeal his convictions and sentence to the Eleventh Circuit, and he did not otherwise raise his Rehaif claim before filing his motion to vacate. Because he failed to raise his Rehaif claim on direct appeal, his claim is procedurally defaulted, and he may not raise it in a motion to vacate unless he shows that an exception to the procedural default rule applies. Lynn, 365 F.3d at 1234.
3. Cause for Procedural Default and Prejudice
Petitioner appears to argue the procedural default rule does not bar him from raising his Rehaif claim because he has shown cause for his failure to raise his claim on direct appeal and resulting prejudice. Mot. to Vacate 1-2. Respondent contends Petitioner fails to show either cause or prejudice. Resp. to Mot. to Vacate 8-11. The Court agrees.
i. Cause for Procedural Default
Petitioner appears to assert that the novelty of his Rehaif claim constitutes cause to excuse his procedural default. Mot. to Vacate 1-2 (arguing a Rehaif claim “was unavailable to him on direct appeal[]”); id. at 2-3 (noting that courts of appeals had rejected the argument raised in Rehaif). In Reed v. Ross, 468 U.S. 1 (1984), the Supreme Court held “that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed, 468 U.S. at 16; see also Id. at 14-15 (“If counsel has no reasonable basis upon which to formulate a constitutional question, setting aside for the moment exactly what is meant by ‘reasonable basis,' it is safe to assume that he is sufficiently unaware of the question's latent existence that we cannot attribute to him strategic motives of any sort.” (internal citations omitted)). A claim is novel, inter alia, where “a decision may overturn a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Id. at 17.
In Bousley v. United States, 523 U.S. 614 (1998), however, the Supreme Court again addressed the novelty exception and held that “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” Bousley, 523 U.S. at 623 (internal quotations omitted) (citing Engle v. Isaac, 456 U.S. 107, 130 (1982)); see also Murray v. Carrier, 477 U.S. 478, 492 (1986) (“[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.”). In Bousley, although the Supreme Court had not identified the error petitioner complained of before he failed to raise it on direct appeal, the Court found that he failed to establish cause for procedural default pursuant to the novelty exception because “at the time of petitioner's plea, the Federal Reporters were replete with cases involving [similar] challenges[.]” Id. at 622 (citations omitted).
Similarly, the Eleventh Circuit has held that in determining whether a petitioner has shown cause pursuant to the novelty exception, “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. “Where a number of others had raised the claim before the petitioner failed to do so, the claim is not sufficiently novel to meet the cause requirement.” Howard v. United States 374 F.3d 1068, 1072 (11th Cir. 2004) (citations omitted). Additionally, “[t]he fact that every circuit which had addressed [an] issue had rejected the proposition that became the [Supreme Court's later] rule [on the issue] simply demonstrates that reasonable defendants and lawyers could well have concluded it would be futile to raise the issue.” McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). “[T]he Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default.” Id. at 1259 (citing Bousley, 523 U.S. at 623; Smith v. Murray, 477 U.S. 527, 535 (1996)).
Here, although binding precedent in the Eleventh Circuit at the time of Petitioner's conviction would have made an argument similar to the one raised in Rehaif seemingly futile, a knowledge-of-status argument was not novel. Like in Bousley, even at the time Petitioner was convicted, petitioners had regularly challenged their convictions under § 922(g)-even before Rehaif-by arguing that the Government failed to allege or prove knowledge of status. See, e.g., United States v. Young, 766 F.3d 621, 629-30 (6th Cir. 2014) (per curiam), cert. denied, -- U.S. --, 135 S.Ct. 1475 (Mem.) (2015); United States v. Butler, 637 F.3d 519, 523-25 (5th Cir. 2011) (per curiam), cert denied, 565 U.S. 1092 (Mem.) (2011); United States v. Reap, 391 Fed.Appx. 99, 103-04 (2d Cir. 2010) (per curiam), cert. denied, -- U.S. --, 131 S.Ct. 3040 (Mem.) (2011); United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999); United States v. Ballentine, 4 F.3d 504, 505-06 (7th Cir. 1993), cert. denied, 510 U.S. 1179 (Mem.) (1994); see also Bousley, 523 U.S. at 622 (finding that petitioner failed to show cause under the novelty exception where “at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges[]” similar to petitioner's); Howard, 374 F.3d at 1073 (“The existence of [courts of appeals] decisions at the time of [petitioner's] sentencing establishes that other defendants had long been raising the issue.”). Courts' unanimous rejection of that argument shows merely the possible futility of the argument at that time; it does not show that the argument was so novel that it constitutes cause to excuse procedural default. McCoy, 266 F.3d at 1258-59 (“The fact that every circuit which had addressed the issue had rejected the proposition that became the Apprendi rule simply demonstrates that reasonable defendants and lawyers could well have concluded it would be futile to raise the issue[, ] [but] . . . the Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default.” (citations omitted)).
In a nearly identical case, this Court found that a petitioner who did not challenge his § 922(g) indictment during his pre-Rehaif direct appeal failed to establish cause for procedural default based on the novelty exception. Brown v. United States, Nos. 4:18-cr-19-CDL-MSH, 4:19-cv-208-CDL-MSH, 2021 WL 2546466, at *3-6 (M.D. Ga. Apr. 5, 2021), recommendation adopted by 2021 WL 2544407 (M.D. Ga. June 21, 2021). Other courts in the Eleventh Circuit agree. Cardenas v. United States, Nos. 19-10183-CV-KING, 13-10013-CR-KING, 2021 WL 1078182, at *5 (S.D. Fla. Feb. 25, 2021), recommendation adopted by 2021 WL 1062229 (S.D. Fla. Mar. 19, 2021); Long v. United States, Nos. 17-00026-KD-B, 19-00452-KD-B, 2020 WL 7391292, at *7-8 (S.D. Ala. Nov. 9, 2020), recommendation adopted by 2020 WL 7395140 (S.D. Ala. Dec. 16, 2020); Gilbert v. United States, Nos. CV 119-178, CR 114-125, 2020 WL 4210632, at *8 (S.D. Ga. June 23, 2020), recommendation adopted by 2020 WL 4208240 (S.D. Ga. July 22, 2020); Dawkins v. United States, Nos. 7:16-cr-00440-LSC-SGC-1, 7:19-cv-08047-LSC, 2020 WL 3576841, at *1-3 (N.D. Ala. July 1, 2020), denying certificate of probable cause to appeal, No. 20-12840-D, 2020 WL 8270518 (11th. Cir. Dec. 1, 2020); Davis v. United States, Nos. 4:16-cr-37-CDL-MSH, 4:19-cv-69-CDL-MSH, 2020 WL 8919332, at *16 (M.D. Ga. Dec. 8, 2020), recommendation adopted by 2021 WL 1081117 (M.D. Ga. Mar. 19, 2021). These decisions square with the Eleventh Circuit's analysis of the novelty exception. See Howard, 374 F.3d at 1072; McCoy, 266 F.3d at 1258-59; Lynn, 365 F.3d at 1235. Accordingly, Petitioner fails to show cause for procedural default based on the novelty exception.
ii. Resulting Prejudice
Even assuming Petitioner shows cause for procedural default, Respondent argues the procedural default rule still bars Petitioner from raising his Rehaif claim because he fails to show resulting prejudice. Resp. to Mot. to Vacate 11-13; see also McKay, 657 F.3d at 1196 (requiring a petitioner to show both cause and actual prejudice to overcome procedural default). The Court agrees.
First, Rehaif errors are not structural errors which require automatic vacatur of Petitioner's conviction. See United States v. Marcus, 560 U.S. 258, 263 (2010) (“Structural errors are a very limited class of errors that affect the framework within which the trial proceeds such that it is often difficult to assess the effect of the error[.]” (internal quotations, alterations, and citations omitted)). Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (“The existence of such defects . . . requires automatic reversal of the conviction because they infect the entire trial process.” (citations omitted)). The Supreme Court has already found that Rehaif errors do not fall within this limited class of errors. In Greer v. United States, -- U.S. --, 141 S.Ct. 2090 (2021), petitioners challenged omission of the knowledge-of-status element from their jury instructions and plea colloquies pursuant to Rehaif, and argued, inter alia, that such errors constitute structural errors. Greer, 141 S.Ct. at 2096, 2099-2100. The Supreme Court rejected this argument, stating that
discrete defects in the criminal process-such as the omission of a single element from jury instructions or the omission of a required warning from a Rule 11 plea colloquy-are not structural because they do not “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”Id. at 2100 (quoting Neder v. United States, 527 U.S. 1, 8 (1999)) (emphasis in original).
The Court held that omission of the knowledge-of-status element from a pre-Rehaif jury instruction or plea colloquy is not a structural error because it neither “affect[s] the entire framework within which the proceeding occurs[]” nor “deprive[s] defendants of basic protections without which a criminal proceeding cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Id. (internal alterations, quotations, and citations omitted).
Although Greer did not address omission of an element from an indictment, the Supreme Court's general conclusion as to Rehaif errors is couched in broad terms: “In short, Rehaif errors fit comfortably within the general rule that a constitutional error does not automatically require reversal of a conviction.” Id. (internal quotations and citation omitted). Moreover, the Eleventh Circuit, this Court, and other courts have all either found that the same reasoning applies to omission of the knowledge-of-status element from pre-Rehaif indictments or analyzed such errors under the standard of review applicable to non-structural errors. See United States v. Leonard, -- F.4th --, 2021 WL 2844904, at *5 (11th Cir. July 8, 2021); United States v. Haynes, 798 Fed.Appx. 560, 564-65 (11th Cir. 2020) (per curiam) (“[Petitioner] asserts that plain-error review does not apply to his claim because . . . the error is structural. . . . [T]hese assertions are wrong.” (citations omitted)); United States v. Price, 828 Fed.Appx. 573, 577 (11th Cir. 2020) (per curiam) (“Despite [petitioner's] claim that Rehaif error is structural, we have consistently reviewed Rehaif arguments raised for the first time on appeal for plain error.” (citing United States v. Bates, 960 F.3d 1278, 1296 (11th Cir. 2020); United States v. McLellan, 958 F.3d 1110, 1118-20 (11th Cir. 2020); United States v. Moore, 954 F.3d 1322, 1337-38 (11th Cir. 2020); United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019))); Brown, 2021 WL 2546466, at *7-8; Cardenas, 2021 WL 1078182, at *5; United States v. Jones, Nos. 4:16-cr-13/MW/MAF, 4:20-cv-379/MW/MAF, 2020 WL 5260781, at *2 (N.D. Fla. Aug. 3, 2020), recommendation adopted by 2020 WL 5260568 (N.D. Fla. Sept. 2, 2020). Nothing prevented Petitioner from arguing that § 922(g) included a knowledge-of-status element and presenting evidence to show that he was not a convicted felon or that he lacked knowledge of that status. He fails to show prejudice based on a structural error.
Second, Petitioner fails to show that he suffered actual prejudice. “To [overcome procedural default] on a cause and prejudice theory, a petitioner must show ‘actual prejudice.'” Fordham v. United States, 706 F.3d 1345, 1350 (11th Cir. 2013) (citation omitted). To establish actual prejudice, a petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); see also Ward v. Hall, 592 F.3d 1144, 1178 (11th Cir. 2010). “The actual prejudice standard is more stringent than the plain error standard.” Granada v. United States, 990 F.3d 1272, 1288 (11th Cir. 2021) (internal quotations and citation omitted).
In Greer, the Supreme Court explained that
[i]n 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.Greer, 141 S.Ct. at 2097 (internal quotations and citation omitted). Accordingly, the Court recognized that “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.” Id. “In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability' that, but for the Rehaif error, the outcome of the district court proceedings would have been different.” Id.; see also Granada, 990 F.3d at 1288 (“The actual prejudice standard is more stringent than the plain error standard.” (internal quotations and citation omitted)).
“[A]s the Fifth Circuit [has] aptly stated, demonstrating prejudice under Rehaif ‘will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons.'” Greer, 141 S.Ct. at 2098 (quoting United States v. Lavalais, 960 F.3d 180, 184 (2020)). The Eleventh Circuit has recognized the same. Leonard, 2021 WL 2844904, at *6 (“[M]ost people convicted of a felony know that they are felons . . . .”). Like the petitioners in Greer, Petitioner had been convicted of the following felonies before his arrest for possession of a firearm by a convicted felon: (1) distribution of a controlled substance in an Alabama court in 1994, (2) distribution of marijuana in an Alabama court in 1994, (3) two convictions for possession of methamphetamine in a Georgia court in 2004, (4) second degree manufacturing a controlled substance in an Alabama court in 2005, and (5) possession of a controlled substance in an Alabama court in 2011. Compare Final PSR 8-11 with Greer, 414 S.Ct. at 2097 (“Before their respective felon-in-possession offenses, both [petitioners] had been convicted of multiple felonies.”). Petitioner was sentenced to more than one year confinement for each of these six convictions, and he actually served more than one year for at least the 1994 Alabama conviction for possession of a controlled substance. Final PSR 8-11. In his plea agreement, Petitioner stipulated to his two 1994 convictions and his 2005 conviction. Plea Agreement 10; see also Plea Tr. 21:15-21:25. Petitioner's PSR also listed these convictions, and Petitioner did not object to their inclusion or the nature of the convictions. Final PSR 8-11; see Pet'r's Objs. to Draft PSR 1-6, ECF No. 24.
As courts-including this Court-have consistently recognized, those convictions undermine Petitioner's claim of actual prejudice. See Greer, 414 S.Ct. at 2097-98 (“Those prior convictions are substantial evidence that they knew they were felons.”); Leonard, 2021 WL 2844904, at *6 (“[T]he record is clear that [defendant] had more than one prior conviction. . . . We have no doubt that a jury would recognize that too.” (internal citation omitted)); Brown, 2021 WL 2546466, at *9; Richardson v. United States, Nos. 2:17-cr-11-SPC-MRM, 2:20-cv-305-SPC-MRM, 2021 WL 719613, at *4 (M.D. Fla. Feb. 24, 2021). Importantly, Petitioner does not allege that he could present any evidence demonstrating that he did not know he was a convicted felon or that he did not know he was prohibited from possessing a firearm. See Greer, 141 S.Ct. at 2098 (“Importantly, on appeal, neither [petitioner] 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.”); Leonard, 2021 WL 2844904, at *6 (“[Defendant], for his part, gives us no reason to conclude [that a jury would not have found that he knew he was a convicted felon]-he does not even attempt to argue that he did not know he was a felon at the time he possessed the gun or that he would have offered the jury evidence to prove this point.”). Therefore, even assuming Petitioner has shown cause for procedural default, he has not established prejudice to avoid the procedural default rule because there was ample evidence showing that he knew he was a convicted felon, including his prior felony convictions and his confinement for more than one year.
3. Miscarriage of Justice or Actual Innocence
Although Petitioner does not raise an actual innocence or miscarriage of justice exception to procedural default, Respondent also argues that Petitioner fails to show that this exception applies. Resp. to Mot. to Vacate 9-11; see also Bousley, 523 U.S. at 623-24 (remanding motion to vacate to determine whether petitioner could show actual innocence to excuse procedural default after petitioner failed to show cause and prejudice based on the novelty exception). The Court agrees.
“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); see also McKay, 657 F.3d at 1196. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404 (1993). “‘Actual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). “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.” Id. at 623 (internal quotations and citations omitted).
Here, as explained above, Petitioner had previously been convicted of six felonies before his arrest for possession of a firearm by a convicted felon, and he stipulated to three of these convictions in his plea agreement. Final PSR 8-11; Plea Agreement 10. Importantly, he does not allege that he lacked knowledge of his status of convicted felon. Thus, Petitioner cannot credibly argue that he did not know he was a convicted felon when he committed the federal offenses. Accordingly, he fails to show actual innocence. Because Petitioner procedurally defaulted his Rehaif claim by failing to raise it on direct appeal and because he has not shown that an exception to the procedural default rule applies, he is barred from raising his Rehaif claim in his motion to vacate. He raises no other claims for relief in his motion to vacate, and, therefore, the Court RECOMMENDS that his motion to vacate (ECF No. 38) be DENIED for procedural default.
C. Petitioner's Claim
Respondent argues that even if the Court does not apply the procedural default rule and reaches the merits of Petitioner's Rehaif claim, his motion to vacate should be denied on the merits. Resp. to Mot. to Vacate 11-13. The Court agrees and, in the alternative, recommends that Petitioner's motion to vacate be denied on this ground.
As an initial matter, for the reasons explained above, Petitioner's claimed Rehaif error does not constitute a structural error. The Court, therefore, does not apply the structural-error standard and, instead, applies the general habeas standard for evaluating alleged constitutional errors. See Ross v. United States, 289 F.3d 677, 681-82 (11th Cir. 2002) (per curiam) (concluding that an alleged error raised in a motion to vacate under § 2255 was not structural and reviewing for harmless error). “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Rather 28 U.S.C. § 2255(a) provides relief where “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 is otherwise subject to collateral attack.” “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Richards v. United States, 837 F.3d 965, 966 (11th Cir. 1988) (per curiam) (internal quotations and citation omitted).
“[T]he appropriate standard for reviewing the harmlessness of a non-structural constitutional error on collateral review of a state court judgment is the standard enunciated in Kotteakos v. United States, 328 U.S. 750, . . . (1946).” Ross, 289 F.3d at 682 (citing Brecht, 507 U.S. at 636-38). The Eleventh Circuit also “applies ‘[this] harmless error standard to the habeas review of federal court convictions.'” Phillips v. United States, 849 F.3d 988, 993 (11th Cir. 2017) (quoting Ross, 289 F.3d at 682). “Under that standard, a defendant is entitled to habeas relief when an error results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury's verdict.'” Ross, 289 F.3d at 682 (quoting Brecht, 507 U.S. at 638). “Stated another way, a § 2255 movant ‘is entitled to reversal only when the error resulted in actual prejudice because it had substantial and injurious effect or influence in determining' the final result.” Rosales-Diaz v. United States, 805 Fed.Appx. 660, 666 (11th Cir. 2020) (per curiam) (internal alterations omitted) (quoting Vines v. United States, 28 F.3d 1123, 1130 (11th Cir. 1994)). A petitioner bears the burden of proving that he is entitled to relief. Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation omitted).
For the purposes of this recommendation, the Court assumes, without deciding, that Petitioner's indictment was erroneous under Rehaif and violated Petitioner's Fifth and Sixth Amendment rights. See United States v. Ndiaye, 434 F.3d 1270, 1299 (11th Cir. 2006) (holding that an indictment must, inter alia, “set[] forth the essential elements of the crime”). During Petitioner's plea colloquy, neither the prosecutor nor the trial court stated that the Government must prove the mens rea elements identified in Rehaif to convict Petitioner under § 922(g). See Plea Tr. 6:11-6:21; Thomas, 810 Fed.Appx. at 797. Nonetheless, he is not entitled to relief because he fails to show that the “error[s] resulted in actual prejudice because [they] had substantial and injurious effect or influence in determining” the final result. Vines, 28 F.3d at 1130.
In United States v. Moore, 954 F.3d 1322 (11th Cir. 2020), however, the Eleventh Circuit considered a similar Rehaif argument and discussed the requirements for an indictment. The Court noted that “[t]he standard for whether an indictment sufficiently alleges a crime is not demanding.” Moore, 954 F.3d at 1332. “An indictment tracking the statutory language and stating approximately the time and place of an alleged crime is sufficient.” Id. (citing United States v. Brown, 752 F.3d 1344, 1353 (11th Cir. 2014)). Petitioner's indictments in Moore “track[ed]- and cite[d]-the language from 18 U.S.C. § 922(g)(1), ” and the Eleventh Circuit recognized that the “indictment[s] were clearly sufficient prior to Rehaif.” Id. at 1333. While the Supreme Court later interpreted § 922(g) to require proof of knowledge of status in Rehaif, “[r]eading this knowledge requirement into the statute while also holding that indictments tracking the statute's text are insufficient would be incongruous.” Id. The Eleventh Circuit concluded that “[t]he absence of an element of an offense in an indictment is not tantamount to failing to charge a criminal offense against the United States.” Moore, 954 F.3d at 1333. The Moore petitioner did not raise a Fifth or Sixth Amendment challenge. Like in Moore, however, Petitioner's indictment tracks the language of § 922(g) and specifies the firearm Petitioner possessed. See Indictment 1. Thus, based on Moore, the Court is not convinced that Petitioner establishes a Fifth or Sixth Amendment violation. See also Ndiaye, 434 F.3d at 1299 (“The constitutional standard is fulfilled by an indictment that tracks the wording of the statute, as long as the language sets forth the essential elements of the crime.”); United States v. Fern, 155 F.3d 1318, 1323 (11th Cir. 1998) (“If an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.”). Regardless, Petitioner is not entitled to relief because he fails to show actual prejudice.
As explained above, Petitioner could not credibly argue that he did not know his status as a convicted felon because he had previously been convicted of six felonies and confined for more than one year before his arrest for possession of a firearm by a convicted felon. Final PSR 8-11. He stipulated to three of these convictions in his plea agreement. Plea Agreement 10. He does not allege that he could present any evidence showing that he did not know he was a convicted felon. Based on this evidence, Petitioner is not entitled to relief because he fails to establish actual prejudice resulting from the alleged constitutional errors. See Greer, 414 S.Ct. at 2097-98 (“Those prior convictions are substantial evidence that they knew they were felons.”); United States v. Dudley, -- F.4th --, 2021 WL 3086186, at *12 (11th Cir. July 22, 2021); Leonard, 2021 WL 2844904, at *6; Moore, 954 F.3d at 1337, 1338; Brown, 2021 WL 2546466, at *9; Richardson, 2021 WL 719613, at *4. Therefore, in the alternative, to the extent Petitioner may avoid procedural default, the Court RECOMMENDS that his motion to vacate (ECF No. 38) be DENIED on the merits of his claims.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate 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.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, the Court recommends that Petitioner's motion to vacate (ECF No. 38) be denied. His motion to appoint counsel (ECF No. 39) is denied. Pursuant to 28 U.S.C. § 636(b)(1), Petitioner 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 hereof. The district judge shall 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.
Petitioner is hereby 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 ORDERED AND RECOMMENDED.