Carter v. United States

• Court: District Court, D. Nevada
• Decided: February 8, 2021
• Docket: 2:20-cv-01059
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

UNITED STATES OF AMERICA, Case No. 2:17-cr-00153-HDM-GWF 6 Case No. 2:20-cv-01059-HDM Plaintiff, 7 v. ORDER 8 DEAN ANTHONY CARTER,

9 Defendant.

10 Defendant Dean Anthony Carter has filed a motion to vacate, 11 set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF 12 No. 141). The government has opposed (ECF No. 143), and Carter has 13 replied (ECF No. 144). 14 On May 10, 2017, Carter was charged by way of indictment with 15 one count of felon in possession of a firearm and one count of 16 felon in possession of ammunition in violation of 18 U.S.C. § 17 922(g). (ECF No. 1). Pursuant to an agreement, Carter entered a 18 plea of guilty to Count 2, which charged felon in possession of 19 ammunition. (ECF Nos. 126 & 129). The court thereafter sentenced 20 Carter to 63 months in prison. (ECF No. 27 & 28). 21 Section 922(g) prohibits the possession of ammunition by 22 several categories of persons, including any person who has been 23 convicted in any court of a crime punishable by a term of more 24 than one year in prison. 18 U.S.C. § 922(g)(1). At the time of his 25 conviction, Carter had several prior felonies, including three for 26 which he received a cumulative 14-year sentence and a prior 27 conviction for felon in possession of a firearm. When Carter was 28 1 charged and entered his plea in this case, the government was not 2 required to prove that he knew he was a felon. United States v. 3 Enslin, 327 F.3d 788, 798 (9th Cir. 2003). But shortly after Carter 4 was sentenced, the U.S. Supreme Court concluded that a defendant 5 may be convicted under § 922(g) only if the government proves that 6 the defendant “knew he belonged to the relevant category of persons 7 barred from possessing a firearm.” Rehaif v. United States, 139 S. 8 Ct. 2191, 2200 (2019). On the basis of Rehaif and the government’s 9 failure to charge his knowledge of status, Carter now moves to 10 vacate his conviction. 11 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 12 vacate, set aside, or correct his sentence if: (1) the sentence 13 was imposed in violation of the Constitution or laws of the United 14 States; (2) the court was without jurisdiction to impose the 15 sentence; (3) the sentence was in excess of the maximum authorized 16 by law; or (4) the sentence is otherwise subject to collateral 17 attack. Id. § 2255(a). 18 Carter argues that the omission of the Rehaif element from 19 the indictment violated his Fifth Amendment rights guaranteeing 20 that a grand jury find probable cause to support all the necessary 21 elements of the crime and to not be tried on a fatally defective 22 indictment and his Sixth Amendment rights to notice of the charges. 23 He also alleges that the defective indictment deprived the court 24 of jurisdiction. The government asserts that Carter has waived his 25 right to bring these claims, that his claims are procedurally 26 defaulted, and that the government is not required to prove the 27 defendant knew his possession of firearms was unlawful. 28 1 As part of his plea, Carter “knowingly and expressly waive[d] 2 all collateral challenges, including any claims under 28 U.S.C. § 3 2255, to his conviction, sentence, and the procedure by which the 4 Court adjudicated guilt and imposed sentence, except non-waivable 5 claims of ineffective assistance of counsel.” (ECF No. 126 at 9). 6 Such “[a]n unconditional guilty plea waives all non-jurisdictional 7 defenses and cures all antecedent constitutional defects, allowing 8 only an attack on the voluntary and intelligent character of the 9 plea.” United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 10 2013); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973); 11 United States v. Espinoza, 816 Fed. App’x 82, 85 (9th Cir. June 1, 12 2020) (unpublished disposition) (unconditional plea waiver 13 precludes all Fifth and Sixth Amendment claims except to the extent 14 they contest the court’s jurisdiction or the voluntariness of the 15 plea). Thus, except to the extent Carter attacks the jurisdiction 16 of the court,1 his claims are waived.2 17 Carter’s jurisdictional argument is without merit. The 18 omission of an element from the indictment does not affect the 19 court’s jurisdiction. United States v. Cotton, 535 U.S. 625, 630 20 (2002); United States v. Ratigan, 351 F.3d 957, 962–63 (9th Cir. 21 2003); see also United States v. Jackson, 2020 WL 7624842, at *1 22 (9th Cir. Dec. 22, 2020) (unpublished disposition) (rejecting the 23 defendant’s argument that omission of the Rehaif element deprived 24 the district court of jurisdiction); United States v. Burleson,

25 1 Carter does not attack the voluntariness of his plea. 26 2 The court agrees with the well-reasoned opinions of several 27 courts that none of the exceptions under Tollett to the collateral challenge waiver applies in this case. See, e.g., United States v. 28 Kelbch, 2021 WL 96242, at *2 (D. Nev. Jan. 7, 2021). 1 2020 WL 4218317, at *1 (July 23, 2020) (unpublished disposition) 2 (same); Espinoza, 2020 WL 2844542, at *1 (same); United States v. 3 Moore, 954 F.3d 1322, 1332 (11th Cir. 2020); United States v. 4 Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); United States v. Balde, 5 943 F.3d 73, 88-92 (2d Cir. 2019); United States v. Burghardt, 939 6 F.3d 397, 402 (1st Cir. 2019). Cf. United States v. Singh, 979 7 F.3d 697, 730 (9th Cir. 2020) (on direct appeal, reviewing omission 8 of Rehaif element from indictment for plain error). 9 Moreover, Carter’s Fifth and Sixth Amendment claims are 10 procedurally defaulted, even assuming, as Carter argues, that they 11 could be considered jurisdictional in nature. 12 “If a criminal defendant could have raised a claim of error 13 on direct appeal but nonetheless failed to do so, he must 14 demonstrate” either “cause excusing his procedural default, and 15 actual prejudice resulting from the claim of error,” United States 16 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), or that he is 17 actually innocent of the offense, Bousley v. United States, 523 18 U.S. 614, 622 (1998). “[C]ause for a procedural default on appeal 19 ordinarily requires a showing of some external impediment 20 preventing counsel from constructing or raising the claim.” Murray 21 v. Carrier, 477 U.S. 478, 492 (1986). Actual prejudice “requires 22 the petitioner to establish ‘not merely that the errors at ... 23 trial created a possibility of prejudice, but that they worked to 24 his actual and substantial disadvantage, infecting his entire 25 trial with error of constitutional dimensions.’” Bradford v. 26 Davis, 923 F.3d 599, 613 (9th Cir. 2019) (internal citation 27 omitted). 28 1 Carter could have raised his claims on direct appeal but did 2 not do so. They are therefore procedurally defaulted. It is 3 unnecessary to resolve whether Carter can demonstrate cause for 4 the default, because even if he could, he cannot demonstrate 5 prejudice.3 6 Carter committed the instant offense after receiving a 7 fourteen-year sentence for assault, assault with attempt to rape 8 and attempted murder and additionally after having been previously 9 convicted of felon in possession of a firearm. (PSR ¶¶ 35 & 37). 10 Further, Carter acknowledged in his plea agreement that he had 11 been previously convicted of a felony. (ECF No. 126 at 4). Finally, 12 and most importantly, Carter acknowledged during his plea colloquy 13 both that he had a prior felony conviction – specifically, a felon 14 in possession of a firearm -- and that he was aware at the time of 15 his offense that he was not allowed to possess a firearm. In light 16 of Carter’s admissions that he knew he was a convicted felon and 17 that he was prohibited from possessing firearms, combined with his 18 criminal history, the court is not persuaded that the outcome of 19 the proceedings would have been any different had the grand jury 20 been presented with, and the indictment had alleged, the Rehaif 21 element. 22 Carter argues that he suffered prejudice because he was 23 convicted by a court lacking jurisdiction. For the reasons 24 previously discussed, this argument is without merit because the 25 errors Carter complains of did not deprive the court of 26 jurisdiction. 27

28 3 Carter does not argue actual innocence. 1 Carter alternatively argues that he is not required to 2 demonstrate prejudice to obtain relief because the omission is 3 structural error. 4 “[C]ertain errors, termed structural errors, might affect 5 substantial rights regardless of their actual impact on an 6 appellant’s trial.” United States v. Marcus, 560 U.S. 258, 263 7 (2010) (internal punctuation and citations omitted). Thus, 8 structural error “warrant[s] habeas relief without a showing of 9 specific prejudice.” United States v. Withers, 638 F.3d 1055, 1063– 10 64 (9th Cir. 2011). “But structural errors are a very limited class 11 of errors that affect the framework within which the trial 12 proceeds, such that it is often difficult to assess the effect of 13 the error.” Marcus, 560 U.S. at 263 (internal punctuation and 14 citations omitted). Cases in which the Supreme Court has found 15 structural error include total deprivation of counsel, lack of an 16 impartial trial judge, violation of the right to a public trial 17 and an erroneous reasonable-doubt instruction. See id. (discussing 18 cases). In contrast, errors that have been found to be non- 19 structural include where the court instructed on an invalid 20 alternative theory of guilt, gave an instruction omitting an 21 element of the offense, or erroneously instructed the jury on an 22 element. Id. at 264 (discussing cases). 23 The Ninth Circuit has not yet addressed in a published opinion 24 whether omission of the Rehaif element from the indictment is 25 structural error. But it has held that the error is not structural 26 in at least one unpublished decision. See United States v. Jackson, 27 2020 WL 7624842, at *1 n.1 (9th Cir. Dec. 22, 2020). And the First, 28 Third, Fifth, Seventh, Eighth, and Tenth Circuits have concluded 1 that errors are not structural. , 2 -- F.3d --, 2021 WL 128473, at *3 (1st Cir. Jan. 14, 2021); United 3 States v. Nasir, 982 F.3d. 144, 171 n.30 (3d Cir. Dec. 1, 2020); 4 United States v. Lavalais, 960 F.3d 180, 187 (5th Cir. 2020); 5 United States v. Payne, 964 F.3d 652, 657 (7th Cir. 2020); United 6 United States v. Coleman, 961 F.3d 1024, 1030 (8th Cir. 2020); 7 States v. Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see also 8 United States v. Hill, 2020 WL 7258551, at *2 n.3 (3d Cir. Dec. 9 10, 2020) (unpublished disposition); United States v. Watson, 820 10 Fed. App’x 397, 400 (6th Cir. 2020) (unpublished disposition). But 11 see United States v. Gary, 954 F.3d 194, 206 (4th Cir. 2020). The 12 court agrees with the well-reasoned opinions of these courts and 13 concludes that a Rehaif error does not fall within the limited 14 class of errors the Supreme Court has found to be structural.4 15 Finally, Carter argues that Rehaif requires the government to 16 prove not only that he knew that he was a convicted felon but also 17 that he knew he was barred from possessing firearms. 18 Notwithstanding the fact that Carter admitted to the court that he 19 knew he was barred from possessing a firearm, Carter’s legal 20 argument is also without merit. United States v. Singh, 979 F.3d

21 4 While there is some case law holding that defects in the 22 i cn ld ai ic mt m ie sn t t ia mr ee l ys t rr au ic st eu dr .a l Se er er ,o r e, . gt .h ,o s Ue n ic ta es de s S ta ap tp el sy o vn .l y D uw h Be or ,e 1t 8h 6e 23 F.3d 1177, 1179 & 1180 n.3 (9th Cir. 1999) (“We hold that, if properly challenged prior to trial, an indictment's complete 24 failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, 25 but a fatal flaw requiring dismissal of the indictment. . . . Untimely challenges to the sufficiency of an indictment are 26 reviewed under a more liberal standard.”). Carter argues that he raised his argument at the earliest possible opportunity and so 27 the timeliness limitation does not apply. The court does not agree. As previously discussed, Carter could have challenged the 28 indictment on direct appeal but failed to do so. The claim is not therefore timely raised. 697, 727 (9th Cir. 2020) (“[The defendant] contends that Rehaif 2\|| requires the Government to prove he knew not only his status, but also that he knew his status prohibited him from owning a firearm. But this interpretation is not supported by Rehaif ....). 5 Accordingly, because the claims raised in Carter’s § 2255 6|| motion are waived, procedurally defaulted and/or without merit, IT 7|| IS THEREFORE ORDERED that the motion to vacate, set aside or correct sentence (ECF No. 141) is hereby DENIED. 9 IT IS FURTHER ORDERED that Carter is DENIED a certificate of 10|| appealability, as jurists of reason would not find the court’s 11|} denial of the motion to be debatable or wrong. 12 The Clerk of Court shall enter final judgment accordingly. 13 IT IS SO ORDERED. 14 DATED: This 8th day of February, 2021. 15 6 Sburaul’ 9 ft KMb> 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28