Beach v. United States

• Court: District Court, D. Nevada
• Decided: December 17, 2020
• Docket: 3:20-cv-00343
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 UNITED STATES OF AMERICA, Case No. 3:15-cr-00081-LRH-CLB

10 Respondent/Plaintiff, ORDER

11 v.

12 RANDY ALLEN BEACH,

13 Petitioner/Defendant.

14 15 Before the Court is petitioner Randy Beach’s (“Beach”) motion, to vacate, set aside, or 16 correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 45). Beach filed his motion 17 considering the recent ruling in Rehaif v. United States, 139 S. Ct. 2191 (2019). The Government 18 opposed (ECF No. 47), arguing that Beach’s claims are procedurally barred because he did not 19 raise them on direct appeal. In his reply (ECF No. 50), Beach maintains that the constitutional 20 errors are structural. 21 For the reasons contained within this Order, the Court denies his motion and denies him a 22 certificate of appealability. 23 I. BACKGROUND 24 In October of 2015, officers arrested Beach—and he was subsequently indicted—for 25 Unlawful Possession of a Firearm by a Previously Convicted Felon as well as possession with 26 intent to distribute a controlled substance (methamphetamine). ECF No. 1. In June 2016, Beach 27 pled guilty to the named charges without a plea agreement. Id. 1 In January of 2017, this Court sentenced Beach to 94 months imprisonment followed by 2 three years of supervised release. ECF Nos. 38, 39. Beach did not appeal. Now, Beach seeks to 3 vacate his sentence under 28 U.S.C. § 2255. ECF No. 45. 4 II. LEGAL STANDARD 5 Pursuant to 28 U.S.C. § 2255, a petitioner may file a motion requesting the court which 6 imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion 7 may be brought on the following grounds: (1) “the sentence was imposed in violation of the 8 Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such 9 sentence;” (3) “the sentence was in excess of the maximum authorized by law;” or (4) the sentence 10 “is otherwise subject to collateral attack." Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th 11 Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized by a decision of 12 the United States Supreme Court, a one-year statute of limitations applies. 28 U.S.C. 13 § 2255(f). That one-year limitation period begins to run from "the date on which the right asserted 14 was initially recognized by the Supreme Court." Id. § 2255(f)(3). 15 On June 21, 2019, the Supreme Court decided Rehaif, overturning established Ninth Circuit 16 precedent. 139 S. Ct. 2191. In the past, the government was only required to prove that a defendant 17 knowingly possessed a firearm under 18 U.S.C. §§ 922(g) and 924(a)(2). Id. at 2200. Now, under 18 Rehaif, the government “must prove both that the defendant knew he possessed a firearm and that 19 he knew that he belonged to the relevant category of persons barred from possessing a firearm.” 20 Id. 21 III. DISCUSSION 22 Beach argues that by leaving out the new Rehaif element from the original indictment, this 23 Court lacked jurisdiction. ECF No. 45, at 16. Beach further alleges the omission in the indictment 24 violated both his Fifth Amendment guarantee that a grand jury find probable cause to support all 25 the necessary elements of a crime, and his Sixth Amendment right to effective assistance of counsel 26 and to be informed of the nature and cause of the accusation. Id. at 14–16. 27 /// 1 A. Guilty Plea 2 The government contends that by pleading guilty, Beach waived his right to make any non- 3 jurisdictional challenges to the indictment; specifically, his Fifth and Sixth Amendment 4 challenges. See Tollet v. Henderson, 411U.S. 258, 267 (1973). ECF No. 47, at 14. 5 Beach entered his guilty plea in June 2016. ECF No. 45, at 3. As such, the Court finds 6 Beach's claims are barred by his guilty plea even in view of the exceptions to Tollett v. Henderson, 7 411 U.S. 258 (1973).1 In addition, the Court finds that even if Beach’s guilty plea had not waived 8 his right to challenge the indictment, the challenge would likely fail considering other circuits 9 approach to this question. See United States v. Balde, 943 F.3d 73, 89–90 (2d Cir. 2019) (finding 10 that an indictment does not fail on its face if it does mention the knowledge-of-status element so 11 long as it tracks the language of § 922(g)). Nevertheless, the Court still finds it necessary to address 12 the viable jurisdictional and procedural arguments below. 13 B. Jurisdiction 14 This Court “has jurisdiction of all crimes cognizable under the authority of the United 15 States….” Lamar v. United States, 240 U.S. 60, 65 (1916). Any “objection that the indictment does 16 not charge a crime against the United States goes only to the merits of the case,” and does not 17 deprive the court of jurisdiction. Id.; see also United States v. Cotton, 535 U.S. 625, 630 (2020) 18 (reiterating Lamar). Quite importantly, the Ninth Circuit and decisions within the District of 19 Nevada have relied on the principle announced in Cotton in cases considering the aftermath of 20 Rehaif. See, e.g., United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (“[T]he 21 indictment's omission of the knowledge of status requirement did not deprive the district court of 22 jurisdiction.”); see also United States v. Miller, Case No. 3:15-cr-00047-HDM-WGC (D. Nev. 23 Dec. 8, 2020); United States v. Baustamante, Case No. 2:16-cr-00268-APG (D. Nev. Dec. 7, 24 2020). 25 1 Tollett limited federal habeas challenges to pre-plea constitutional violations. 411 U.S. at 267. Exceptions to this 26 general rule include a claim which the state cannot “constitutionally prosecute.” Class v. U.S., 138 S. Ct. 789, 805 (2018) (quoting Menna v. New York, 423 U.S. 61, 63 (1975) (per curiam)). While Beach claims such an exception 27 exists in the present instance (ECF No. 45, at 23–24), the Court agrees with other well-reasoned decisions in the District of Nevada which hold it does not. See United States v. Abundis, Case No. 2:18-cr-00158-MMD-VCF-1 (D. 1 Therefore, pursuant to Ninth Circuit precedent and various other decisions in this District, 2 the Court had and continues to have jurisdiction over Beach’s case despite Rehaif. 3 C. Procedural Default 4 The government also argues that his claims are procedurally defaulted. ECF No. 47, at 6. 5 While a defendant certainly can question the underlying legality of his sentence or conviction, one 6 who does not on direct appeal is procedurally defaulted from doing so unless they can demonstrate: 7 (1) cause and prejudice; or (2) actual innocence. See Bousley v. U.S., 523 U.S. 614, 622 (1998) 8 (citations omitted). “‘Cause’ is a legitimate excuse for the default; ‘prejudice’ is actual harm 9 resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th 10 Cir. 1984). 11 Beach did not challenge the validity of the indictment and/or plea on direct appeal, but 12 instead, argues his claims have not procedurally defaulted because he can demonstrate cause and 13 prejudice, or, in the alternative, the omission in his indictment is a structural error and therefore 14 only requires a showing of cause. Each argument is addressed in turn. 15 1. Cause 16 Beach can likely demonstrate cause. Rehaif overturned long standing precedent in the 17 Ninth Circuit, and the decision’s constitutional consequences were not “reasonably available to 18 counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). 19 2. Prejudice 20 Still, Beach cannot demonstrate prejudice. The Ninth Circuit has found in numerous 21 scenarios, that even if a defendant had been aware that the Government would need to prove the 22 knowledge-of-status element, there is no reasonable probability that the outcome would have been 23 different. See United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (holding that “the 24 failure of the indictment and plea colloquy to include the element of knowledge of felon status 25 does not require us to vacate [the] conviction…”); United States v. Schmidt, 792 F. App’x 521, 26 522 (9th Cir. 2020) (“Although [defendant] did not argue below that the government was required 27 to prove [defendant] knew he was a felon, under any standard of review there was overwhelming 1 case.”); United States v. Tuan Ngoc Luong, 965 F.3d 973, 989 (9th Cir. 2020) (finding in the trial 2 context that, “even if the district court had instructed the jury on the knowledge-of-status element, 3 there is no reasonable probability that the jury would have reached a different verdict…”). In other 4 words, the Ninth Circuit has repeatedly found no actual harm resulted from alleged constitutional 5 violations stemming from the decision in Rehaif in cases involving comparable facts to Beach’s. 6 Here, at his plea hearing, Beach admitted that he had been convicted of a felony at the time 7 he possessed the weapon. ECF No. 45, at 25–26. In addition, Beach had previously served a term 8 of imprisonment of more than a year on each of at least three prior felony convictions. The Court 9 is not persuaded that the inclusion of the Rehaif element would have changed Beach’s decision to 10 plead guilty or that his plea was involuntary. 11 Accordingly, there is no reasonable probability, but for the Rehaif error, that the outcome 12 of the proceeding would have been different. Therefore, because Beach has not demonstrated both 13 cause and prejudice, he procedurally defaulted on his claims challenging the legality of his 14 conviction. 15 D. Structural Error 16 Alternatively, Beach argues the constitutional errors are structural, therefore only requiring 17 a showing of cause. See ECF No. 50. “[C]ertain errors, termed structural errors, might affect 18 substantial rights regardless of their actual impact on an appellant’s trial.” United States v. Marcus, 19 560 U.S. 258, 263 (2010) (citations omitted). Structural errors go to the very heart of the trial and 20 are not “simply an error in the trial process itself.” Arizona v. Fulimante, 499 U.S. 279, 310 (1991). 21 While the Ninth Circuit has not decided whether the knowledge-of-status element in Rehaif 22 presents issues of structural error, numerous other circuits have concluded it does not. See United 23 States v. Nasir, 2020 WL 7041357, at *19, n.30 (3d Cir. Dec. 1, 2020); United States v. Coleman, 24 961 F.3d 1024, 1030 (8th Cir. 2020); United States v. Payne, 964 F.3d 652, 657 (7th Cir. 2020); 25 United States v. Lavalais, 960 F.3d 180, 187 (5th Cir. 2020); United States v. Trujillo, 960 F.3d 26 1196, 1207 (10th Cir. 2020). 27 The Court agrees with these circuit courts and concludes that Rehaif likely does not involve 1 E. Certificate of Appealability is Denied 2 To proceed with an appeal of this Order, Beach must receive a certificate of appealability 3 || from the Court. 28 U.S.C. § 2253(c)(1); FED. R. App. P. 22; 9TH CIR. R. 22-1; Allen v. Ornoski, 435 4 || F.3d 946, 950-951 (9th Cir. 2006). For the Court to grant a certificate of appealability, the 5 || petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 6 |} 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). And the petitioner bears the burden 7 || of demonstrating that the issues are debatable among reasonable jurists; that a court could resolve 8 || the issues differently; or that the issues are “adequate to deserve encouragement to proceed 9 || further.” Slack, 529 U.S. at 483-84 (citation omitted). 10 As discussed above, Beach has failed to raise a meritorious challenge to his conviction and 11 || sentence pursuant to the Ninth Circuit’s decision in Rehaif. As such, the Court finds that he has 12 || failed to demonstrate that reasonable jurists would find the Court’s assessment of his claims 13 || debatable or wrong. See Allen, 435 F.3d at 950-51. Therefore, the Court denies Beach a certificate 14 || of appealability. 15 |} I. CONCLUSION 16 IT IS THEREFORE ORDERED that Beach’s motion to vacate, set aside, or correct his 17 || sentence pursuant to 28 U.S.C. § 2255 (ECE No. 45) is DENIED. 18 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 19 IT IS FURTHER ORDERED that the Clerk of Court ENTER a separate and final 20 || Judgment denying Beach’s § 2255 motion. See Kingsbury v. United States, 900 F.3d 1147, 1150 21 |} (9th Cir. 2018). 22 IT IS SO ORDERED. 23 DATED this 17th day of December, 2020. . Mhiher 25 LAR . HICKS UNITED STATES DISTRICT JUDGE

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