Opinion
09-CR-283-1
11-25-2020
UNITED STATES OF AMERICA v. MARC JAMES HARRIS
ORDER BERLE M. SCHILLER, J.
AND NOW, this day of , 2020, upon careful and independent consideration of the Motion to Vacate, Set Aside, or Correct a Federal Sentence, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Motion for Section 2255 Relief is STAYED pending the exhaustion of Petitioner's pending appeal of his initial Motion pursuant to Section 2255.
3. There is no basis for the issuance of a certificate of appealability.
BY THE COURT:
/s/_________
BERLE M. SCHILLER, J.
REPORT AND RECOMMENDATION
JACOB P. HART UNITED STATES MAGISTRATE JUDGE
This is a pro se motion filed pursuant to 28 U.S.C. § 2255, to Vacate, Set Aside or Correct his Sentence, by an individual who is currently incarcerated at FCI Schuylkill, in Schuylkill County, Pennsylvania. For the reasons that follow, I recommend that the motion be stayed pending completion of Petitioner's appeal of his initial Section 2255 motion. I. FACTS AND PROCEDURAL HISTORY:
On April 28, 2009, a grand jury returned a federal indictment charging Petitioner, Marc Harris ("Harris") or ("Petitioner") with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The government submitted that the ACCA applied as a result of Petitioner's five prior felony convictions for drug trafficking, aggravated assault, and robbery.
On March 10, 2010, Harris entered a guilty plea. At the sentencing hearing, on July 12, 2010, pursuant to a plea agreement, Harris was sentenced to 180 months imprisonment, at the bottom of the guideline range for an armed career criminal.
On May 6, 2016, Harris filed a motion pursuant to 28 U.S.C. § 2255, seeking relief pursuant to the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the "residual clause" in the definition of a "violent felony" in the ACCA. Harris argued that as a result of the Court's holding in Johnson, his prior convictions for aggravated assault and robbery no longer qualified as predicate offenses under the ACCA. The District Court denied his motion without an opinion and later denied a certificate of appealability. Harris filed a timely notice of appeal (No. 17-1861).
The Third Circuit Court of Appeals granted a certificate of appealability as to "the question whether [Petitioner's] due process rights were violated by the use of his Pennsylvania robbery and aggravated assault convictions to enhance his sentence under the Armed Career Criminal Act." Following briefing and oral argument, on March 17, 2020, the Court of Appeals held the mater pending the United States Supreme Court's decision in Borden v. United States, No. 19-5410, in which the Court will decide whether an offense committed with reckless intent may qualify as a "violent felony" under the revised definition in the ACCA.
On June 2, 2020, Harris filed this pro se motion seeking to add a claim pursuant to Rehaif v. United States, 139 S. Ct. 2191 (2019), as an addendum to his pending 2255 motion. The government has now responded noting that this current petition cannot be considered at this time. Furthermore, Respondents note that his claim lacks merit. For the following reasons, I agree that the claim may not be considered at this time and recommend that the motion be stayed pending conclusion of his appeal of his initial Section 2255 petition.
II. STANDARD OF REVIEW
Collateral relief pursuant to Section 2255 is available to vacate, set aside or correct a sentence when (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence was otherwise subject to collateral attack. See 28 U.S.C. § 2255. In order for an error of law to be the basis for collateral attack, Petitioner must demonstrate that the error constituted "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 2240 (1979), quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471. A district court has discretion as to whether or not to hold a hearing on the motion. United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court may dismiss the motion where it is clear from the records that he is not entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
III. DISCUSSION
Harris's appeal of his initial Section 2255 petition remains pending in the Third Circuit. Therefore, as Respondents assert, this petition is not "second or successive" since it was filed prior to Petitioner's exhaustion of his appellate remedies with respect to the denial of his initial petition. United States v. Santarelli, 929 F.3d 95, 105 (3d Cir. 2019). The petition should be considered as a motion to amend the original petition. Id. However, the District Court does not have jurisdiction to consider it while the appeal is pending, unless and until the case is remanded to the district court. Id. Therefore, this new claim must be stayed pending the conclusion of the appeal. If Harris' appeal is unsuccessful, the Court of Appeals will then consider this petition as a motion for permission to file a second or successive petition. However, if Harris's appeal is successful and the matter is remanded to the district court, the district court will consider this new petition as a motion to amend under Federal Rule of Civil Procedure 15(c). Id. at 106. Since Harris filed this petition while his appeal as to his initial petition is pending, it should be stayed at this time.
Furthermore, although the District Court may not consider Petitioner's Rehaif claim at this time, he will not be entitled to relief pursuant to this claim. Harris alleges his conviction is invalid pursuant to Rehaif. In Rehaif, the United States Supreme Court held that the knowledge element of 922(g) requires that in addition to knowingly possessing a firearm, the defendant must also have known of the status that made the possession illegal. However, the Supreme Court clearly held that the government is not required to prove that the defendant knew that his possession was illegal.
If Petitioner's pending appeal is not successful and this new filing is considered as a motion for a second or successive petition, it will not be approved. As Respondents argue, the Court held in In re Sampson, 954 F.3d 159 (3d Cir. 2020), that a claim pursuant to Rehaif may not be presented in a second or successive 2255 motion. The Court held that Rehaif presents an issue of statutory interpretation, which is not one of the exclusive grounds upon which a successive 2255 motion is permitted (i.e., a claim of innocence based on newly discovered evidence, or a n new rule of constitutional law made retroactive by the Supreme Court).
Harris's claim based upon Rehaif could ultimately be considered if he is successful with his current appeal and permitted to amend his original 2255 petition. However, even if reviewed as part of an amended petition on remand, Harris in not entitled to relief pursuant to his Rehaif claim. The government acknowledges that at the time Harris was convicted, knowledge of the status causing possession to be illegal was not considered an element of the offense and therefore it was not admitted by the defendant when he entered his guilty plea.
He also may be able to seek relief under 28 U.S.C. § 2241. See In re Dorsainvil, 119 F.32d 245 (3d Cir. 1997) (holding that a defendant claiming innocence based upon a new statutory interpretation, who has exhausted his § 2255 claim, may seek relief under § 2241, via the savings clause of § 2255, by filing in the district of confinement). However, Harris would still not be entitled to relief. Under Section 2241, Harris would need to show his "actual innocence" in light of the new statutory interpretation. This is the same standard that applies where a petitioner seeks to overcome procedural default. See Cordaro v. United States, 933 F.3d 232, 240-41 (3d Cir. 2019). As addressed herein, Harris is unable to demonstrate that in light of all of the evidence, it is more likely than not that no reasonable juror properly instructed on the knowledge element, would have convicted him. Therefore, even in a Section 2241 petition, he would not be entitled to relief.
Since Harris did not raise this claim on direct appeal, his claim is now procedurally defaulted. See Bousley v. United States, 523 U.S. 614, 621 (1998). In order to excuse the default, Harris must demonstrate either (1) cause for the default and prejudice, or (2) that he is actually innocent. Murray v. Carrier, 477 U.S. 478, 485 (1986). Cause to excuse procedural default may exist "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16 (1984). While the issue had previously been denied by the Court of Appeals, "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. The issue decided in Rehaif is not so novel as to qualify because it "had been litigated in a number of circuit courts for decades." United States v. Saunders, Civ. A. No. 10-442, 2020 WL 5569785 (Bartle, J. Sept. 17, 2020), citing, United States v. Reap, 391 Fed. App'x 99, 103-04 (2d Cir. 2010); United States v. Kafka, 222 F.3d 1129, 1131-33 (9th Cir. 2000); United States v. Hutzsell, 217 F.3d 966, 967-68 (8th Cir. 2000); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995); United States v. Ballentine, 4 F.3d 504, 506 (7th Cir. 1993); United States v. Dancy, 861 F.2d 77, 80 (5th Cir. 1988). "The issue decided in Rehaif was percolating in the courts for years," certainly before Harris's plea. United States v. Murphy, 13-cr-060, 2020 WL 1891791, at *2 (Apr. 16, 2020), quoting United States v. Bryant, 11-765, 2020 WL 353424, at *3 (E.D.N.Y. Jan 21, 2020) (collecting cases). Therefore, Petitioner cannot establish cause for his failure to raise his claims on direct appeal, and his Rehaif claim is procedurally defaulted.
Harris's claim can still be reviewed only if he can prove his actual innocence, meaning "factual innocence not mere legal insufficiency." Bousley, 523 U.S. at 623-24. To establish "actual innocence", a petitioner must demonstrate that in light of all of the evidence it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 327-28 (1995). Harris must demonstrate that it is more likely than not that no reasonable juror would have convicted him had the district court correctly instructed the jury as to this element and given the government the opportunity to present evidence as to the element of knowledge of his status. Id.
The issue the government must prove is not whether Harris had knowledge that his possession was illegal, but rather whether he had knowledge of his status as a person previously convicted of a crime punishable by more than a year in prison. See United States v. Bowens, 938 F.3d 790, 797 (6th Cir. 2019). He must have had knowledge of his status making possession illegal, which would be knowledge that he was convicted of a crime punishable by more than a year. In order to show actual innocence, the defendant must show that it is more likely than not, that upon consideration of all of the available evidence, no reasonable juror would conclude that he knew of his status as a convicted felon.
Petitioner's presentence report shows that prior to the possession charge at issue, on February 5, 1995, Harris was sentenced to 71/2 to 15 years of imprisonment for robbery and aggravated assault and for another robbery during that time period he was sentenced to 11/2 to 10 years imprisonment. Harris served these sentences beginning in 1995 and was paroled on September 16, 2003. On May 9, Harris was sentenced to 2 to 4 years imprisonment for a drug trafficking offense and on October 25, 2005, he was recommitted as a parole violator. He was released to a work release program on June 30, 2008. He was arrested for the instant offense on January 20, 2009.
According to his presentence report, Harris spent most of the 14 years preceding this offense in state prison due to a variety of convictions. Therefore, Petitioner was clearly aware of his status as a person convicted of a crime punishable by more than a year and would not be entitled to relief. Not only was he convicted of a crime punishable by more than a year, but he actually served much more than a year in prison, on multiple occasions. Harris cannot demonstrate that if the government was able to present this available evidence as to his prior convictions that no reason able juror would have concluded that he knew of his status. Accordingly, Harris is unable to establish his actual innocence to excuse the default.
Even if he could demonstrate cause, he has not shown that he was actually prejudiced by the Rehaif error or not being informed of the knowledge requirement. There is certainly no reason to believe his decision to plead guilty would have been different if the government was required to prove he was aware that he had been convicted of as crime punishable by more than a year. United States v. Murphy, 13-cr-060, 2020 WL 1891791, at *2, citing United States v. Burghardt, 939 F.3d 397, 403-05 (1st Cir. 2019) (finding that the defendant did not demonstrate a reasonable probability that he would have declined to plead guilty had he been informed of Rehaif's knowledge requirement and noting that the receipt of sentences exceeding one year "would certainly have made clear to [Petitioner] the fact that his offenses were punishable by more than a year in prison").
For all of the foregoing reasons, the petition should be stayed at this time. Furthermore, the claim lacks merit.
RECOMMENDATION
AND NOW, this 25th day of November, 2020, IT IS RESPECTFULLY RECOMMENDED that the Motion to Vacate, Set Aside, or Correct a Federal Judgment, pursuant to 28 U.S.C. Section 2255 be STAYED pending the pending appeal of Petitioner's initial Motion pursuant to Section 2255.
The petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/Jacob P. Hart
JACOB P. HART
UNITED STATES MAGISTRATE JUD