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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 RONNIE LEE CRUICKSHANK, CASE NO. C20-0924JLR 11 Petitioner, ORDER DENYING 28 U.S.C. v. § 2255 MOTION TO VACATE 12 JUDGMENT UNITED STATES OF AMERICA, 13 Respondent. 14
15 I. INTRODUCTION 16 Before the court is Petitioner Ronnie Lee Cruickshank’s motion to vacate the 17 judgment in his criminal matter under 28 U.S.C. § 2255. (Mot (Dkt. # 1); see also Reply 18 (Dkt. # 6).) Mr. Cruickshank contends that the court must vacate his conviction in his 19 criminal matter in light of the Supreme Court’s decision in Rehaif v. United States, 20 __ U.S. __, 139 S. Ct. 2191 (2019). Respondent the United States of America (“the 21 Government”) opposes Mr. Cruickshank’s motion. (Resp. (Dkt. # 5).) Neither party has 22 1 requested oral argument or an evidentiary hearing on Mr. Cruickshank’s motion.1 (See 2 generally Mot.; Resp.; Reply.) The court has considered the motion, all submissions
3 filed in support of and in opposition to the motion, the relevant portions of the record, and 4 the applicable law. Being fully advised, the court DENIES Mr. Cruickshank’s motion to 5 vacate the judgment in his criminal matter. 6 II. BACKGROUND 7 On December 13, 2017, the Government charged Mr. Cruickshank by complaint 8 with two counts of distribution of methamphetamine, in violation of 18 U.S.C
9 §§ 841(a)(1) and (b)(1)(B) and one count of felon in possession of a firearm in violation 10 of 18 U.S.C § 922(g)(1). (Compl. (CR Dkt.2 # 1).) The Government accused Mr. 11 Cruickshank of selling 98% pure methamphetamine to an undercover Drug Enforcement 12 Administration officer on two separate occasions. (See id. at 4-7.) The Government 13 alleged by affidavit that Mr. Cruickshank had sold a half pound of methamphetamine to
14 the undercover officer during the first controlled purchase and a pound of 15 methamphetamine during the second controlled purchase. (See id.) Officers searched 16 Mr. Cruickshank’s residence in conjunction with his arrest for distribution and found a 17 9mm handgun. (See id. at 7.) With respect to the charge of felon in possession of a 18 firearm, the complaint alleges that Mr. Cruickshank had previously been convicted, as an
19 20 1 Further, because the court determines that the records and files conclusively show that Mr. Cruickshank is not entitled to § 2255 relief, the court concludes that there is no need for an 21 evidentiary hearing. 2 The court uses the shorthand “CR Dkt.” when citing to documents in the docket of Mr. 22 Cruickshank’s criminal case, United States v. Cruickshank, No. CR17-0323JLR (W.D. Wash.). 1 adult, of six crimes punishable by imprisonment for a term exceeding one year, including 2 a conviction for conspiracy to manufacture methamphetamine on January 11, 2008.3 (Id.
3 at 2-3.) 4 On December 20, 2017, the Grand Jury returned an indictment against Mr. 5 Cruickshank for two counts of distribution of methamphetamine, in violation of 18 U.S.C 6 §§ 841(a)(1) and (b)(1)(B) and one count of felon in possession of a firearm in violation 7 of 18 U.S.C § 922(g)(1). (Indictment (CR Dkt. # 11).) The indictment recites Mr. 8 Cruickshank’s six previous convictions for crimes punishable by imprisonment for a term
9 exceeding one year and alleges that Mr. Cruickshank knowingly possessed the handgun. 10 (Id. at 2-3.) 11 At his arraignment on January 2, 2018, Mr. Cruickshank pleaded not guilty to all 12 charges. (See 1/2/18 Min. Entry (CR Dkt. # 17).) On May 30, 2018, Mr. Cruickshank 13 changed his plea to guilty to one charge of distribution of methamphetamine and the
14 charge of felon in possession. (See 5/30/18 Min. Entry (CR Dkt. # 36); Plea Agreement 15 (CR Dkt. # 38); see also R&R (CR Dkt. # 39); Order of Acceptance (CR Dkt. # 40).) 16 The plea agreement recites the following elements for the felon in possession charge: 17 “First, the defendant knowingly possessed a firearm; Second, the firearm had been 18 shipped or transported from one state to another or between a foreign nation and the
19 United States; and Third, at the time the defendant possessed the firearm, the defendant 20
21 3 Federal District Judge Robert S. Lasnik sentenced Mr. Cruickshank to 84 months’ imprisonment for that crime. (See Presentence Investigation Report (“PSR”) (CR 22 Dkt. # 44) (sealed) ¶ 44.) 1 had been convicted of a crime punishable by imprisonment for a term exceeding one 2 year.” (Plea Agreement at 2 (emphasis in original).) The plea agreement also specifies
3 that Mr. Cruickshank waived “any right to bring a collateral attack against the conviction 4 and sentence, including any restitution order imposed, except as it may relate to the 5 effectiveness of legal representation[.]” (Id. at 10.) 6 On October 11, 2018, the court sentenced Mr. Cruickshank to 72 months of 7 imprisonment on each of the two counts, to be served concurrently, followed by five 8 years of supervised release. (Judgment (CR Dkt. # 51) at 1-3.)
9 On June 21, 2019, the Supreme Court issued its decision in Rehaif, in which it 10 overruled longstanding precedent from the Ninth Circuit—and every other circuit that 11 had addressed the issue—concerning the scope of 18 U.S.C. § 922(g)(1). The Supreme 12 Court held that § 922(g)(1) requires that the individual know not only that he possessed a 13 firearm but also that he belonged to one of the prohibited categories listed in § 922(g)(1)
14 when he possessed the firearm. See Rehaif, 139 S. Ct. at 2194. Before Rehaif, the 15 Government could secure a felon-in-possession conviction by proving that the defendant 16 knowingly possessed a firearm, even if the defendant did not know that he had been 17 convicted of a felony—defined under the statute as a crime punishable by more than one 18 year in prison—or was otherwise within a category of persons who cannot legally possess
19 a firearm. See United States v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003) (citing United 20 States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997) (holding that the knowledge 21 requirement “only applies to the possession element of § 922(g)(1), not to . . . felon 22 status.”)). After the Supreme Court’s decision in Rehaif, the Government must now 1 “prove both that the defendant knew he possessed a firearm and that he knew he 2 belonged to the relevant category of persons barred from possessing a firearm.” 139 S.
3 Ct. at 2200. 4 On June 16, 2020, Mr. Cruickshank filed the instant 28 U.S.C. § 2255 motion to 5 vacate his conviction and set aside the judgment in his criminal case. (See generally 6 Mot.) In his petition, Mr. Cruickshank contends that the court must vacate his guilty plea 7 under 18 U.S.C. § 922(g) because the plea, which omitted the element requiring his 8 knowledge of his status as a felon, was not knowing and intelligent under Rehaif. Mr.
9 Cruickshank did not file a direct appeal of his conviction and sentence, nor has he 10 previously filed a § 2255 motion. (See generally CR Dkt.) 11 III. ANALYSIS 12 The Government concedes that Mr. Cruickshank’s § 2255 motion is timely 13 because Mr. Cruickshank filed his motion within one year of the issuance of Rehaif,
14 which the Government agrees announced a new substantive rule of law that applies 15 retroactively. (Resp. at 4 (citing 28 U.S.C. § 2255(f)(3)).) Nevertheless, the Government 16 argues that the court cannot reach the merits of this case for three reasons: because the 17 “concurrent-sentence doctrine” provides the court discretion to dismiss the motion 18 outright; because Mr. Cruickshank waived his right to bring a collateral attack on his
19 conviction and sentence through his plea agreement; and because Mr. Cruickshank 20 procedurally defaulted his motion by failing to file a direct appeal of his conviction and 21 sentence. Mr. Cruickshank contends that he can overcome these hurdles and that the 22 court should grant his motion on the merits. For the reasons set forth below, the court 1 finds that Mr. Cruickshank cannot satisfy the substantial burdens placed on him to excuse 2 his procedural default, and as a result, the court need not consider the merits of Mr.
3 Cruickshank’s motion. 4 A. Concurrent-Sentence Doctrine 5 As a preliminary matter, the Government suggests that the court should dismiss 6 Mr. Cruickshank’s motion under the concurrent-sentence doctrine. (Resp. at 2). This 7 doctrine “provides the court with discretion not to reach the merits of a claim attacking 8 fewer than all multiple concurrent sentences if success on the claim would not have any
9 collateral consequences or change the term of imprisonment.” United States v. Beckham, 10 202 F. Supp. 3d 1197, 1201 (E.D. Wash. 2016) (citing Benton v. Maryland, 395 U.S. 784 11 (1969)). The Government argues that the doctrine applies here because even if the court 12 were to vacate Mr. Cruickshank’s felon-in-possession conviction, Mr. Cruickshank will 13 remain subject to the concurrent 72-month sentence imposed for his narcotics conviction.
14 (Resp. at 2.) 15 The court declines to apply the concurrent-sentence doctrine. In United States v. 16 DeBright, 730 F.2d 1255, 1260 (9th Cir. 1984) (en banc), the Ninth Circuit rejected the 17 use of the concurrent-sentence doctrine as a discretionary means of avoiding review of 18 criminal convictions on direct appeal. The Ninth Circuit expressed “serious
19 doubts . . . about [its] ability to ascertain all the adverse collateral legal consequences of 20 unreviewed convictions” and concluded that addressing the merits of all convictions 21 before the court on appeal would “guarantee that no individual will suffer because of our 22 inability to foretell the future effects of an unreviewed conviction.” DeBright, 730 F.2d 1 at 1258, 1259; see also United States v. Adams, 814 F.3d 178, 181 n.1 (4th Cir. 2016) 2 (“Felony convictions carry a myriad of collateral consequences above and beyond time in
3 prison, including the possibility that a future sentence will be enhanced based on the 4 challenged conviction, the possibility of using the conviction for future impeachment, 5 and societal stigma.”). Although DeBright did not address the use of the 6 concurrent-sentence doctrine in the § 2255 context, the court has found no Ninth Circuit 7 case since DeBright that has applied the concurrent-sentence doctrine to dismiss a § 2255 8 petition. The court is persuaded that the Ninth Circuit’s reasoning in DeBright applies
9 with equal strength in the § 2255 context and declines to dismiss Mr. Cruickshank’s 10 motion under the concurrent-sentence doctrine. 11 B. Waiver 12 The Government next argues that Mr. Cruickshank waived his right to file a 13 § 2255 motion in his plea agreement. (See Resp. at 3; see Plea Agreement at 10.) The
14 Government asserts that the waiver applies because Mr. Cruickshank “does not contend 15 that his plea agreement is defective in any manner.” (See Resp. at 3.) Mr. Cruickshank’s 16 sole claim, however, is that his plea was not knowing and intelligent because he was not 17 informed of an element of one of his offenses. (See Mot. at 5.) Because the court finds, 18 as discussed below, that Mr. Cruickshank’s motion is procedurally defaulted, the court
19 declines to resolve the issue of waiver. 20 C. Procedural Default 21 The Supreme Court has strictly limited the circumstances under which a defendant 22 may collaterally attack his guilty plea. Bousley v. United States, 523 U.S. 614, 621 1 (1998). In general, ‘the voluntariness and intelligence of a guilty plea can be attacked on 2 collateral review only if first challenged on direct review.” Id. (citations omitted). The
3 parties do not dispute that Mr. Cruickshank’s 28 U.S.C. § 2255 petition is procedurally 4 defaulted because he never challenged his plea at his sentencing or on direct appeal. (See 5 Resp. at 6; Reply at 3.) 6 Mr. Cruickshank, however, argues that he can overcome his procedural default by 7 showing both cause excusing his procedural default and actual prejudice resulting from 8 the errors of which he complains. (Reply at 3 (citing Bousley, 523 U.S. at 622)); see also
9 United States v. Frady, 456 U.S. 152, 168 (1982). The court concludes that he cannot 10 meet this burden. 11 1. Cause 12 A defendant can demonstrate cause sufficient to excuse a default by showing that 13 an “objective factor external to the defense impeded counsel’s efforts to comply with the
14 State’s procedural rule” such as a “factual or legal basis for a claim [that] was not 15 reasonably available to counsel.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A claim 16 is considered unavailable only if it is based on a newly-recognized rule that “‘is so novel 17 that its legal basis is not reasonably available to counsel,’” and thus a defendant could not 18 have been expected to raise the issue earlier. Bousley, 523 U.S. at 622 (quoting Reed v.
19 Ross, 468 U.S. 1, 16 (1984)). 20 Mr. Cruickshank argues that the legal basis for his claim was not “reasonably 21 available” at the time he entered his plea because the circuit courts unanimously held, prior 22 to Rehaif, that 18 U.S.C. § 922(g) did not require proof that the defendant knew of his 1 prohibited status at the time he possessed the firearm. (Reply at 3-4 (citing cases).) 2 This court has previously rejected a petitioner’s argument that he had cause
3 excusing his procedural default of a Rehaif claim based on the state of the law prior to 4 Rehaif. In Mujahidh v. United States, No. C19-1852JLR, 2020 WL 1330750 (W.D. 5 Wash. Mar. 23, 2020), this court held that the petitioner could not demonstrate cause 6 because the issue of whether the scienter requirement applied to a defendant’s prohibited 7 status under § 922(g) was not “so novel” at the time of Mr. Mujahidh’s plea and 8 sentencing so as not to have been available to counsel. Mujahidh, 2020 WL 1330750,
9 at *3. Observing that the issue had been litigated for many years, the court concluded 10 that the issue of whether Mr. Mujahidh’s knowledge of his prohibited status was a 11 required element for a conviction under § 922(g) was “reasonably available” to his 12 counsel at the time of his plea. Id. (citing cases). As a result, the court held that Mr. 13 Mujahidh could not establish cause and his Rehaif claim was procedurally defaulted. Id.
14 Mr. Cruickshank argues that his case can be distinguished from Mujahidh because 15 Mr. Mujahidh filed his § 2255 petition pro se and therefore did not have the benefit of 16 counsel to direct the court’s attention to the “near-unanimous body of lower court 17 authority” that would support a finding of cause. (Reply at 4 (quoting Reed, 468 U.S. at 18 17).) The court, however, reads the cases it cites in its orders, and was aware at the time
19 it issued Mujahidh of the pre-Rehaif consensus among the Courts of Appeals on the 20 knowledge-of-status issue. Indeed, the dissent in Rehaif points out that “every single 21 Court of Appeals to address the question” had concluded that the Government was not 22 required to prove that the defendant knew of his prohibited status at the time he possessed 1 the firearm in order to secure a conviction under 18 U.S.C. § 922(g). Rehaif, 139 S. Ct. 2 at 2201 (Alito, J., dissenting). Furthermore, district courts throughout the circuits have,
3 as this court did in Mujahidh, deemed the knowledge-of-status issue to have been 4 reasonably available prior to Rehaif. See, e.g., United States v. Catlett, No. 10-CR-324-1, 5 2020 WL 5982266, at *2 (E.D. Pa. Oct. 8, 2020) (Third Circuit); Beck v. United States, 6 No. 20-CV-67, 2020 WL 5942578, at *14 (E.D. Mo. Oct. 7, 2020) (Eighth Circuit); 7 Gayle v. United States, No. 19-CV-62904, 2020 WL 4339359, at *4 (S.D. Fla. July 28, 8 2020) (Eleventh Circuit); United States v. Vasquez-Ahumada, No. 18-CR-5, 2020 WL
9 3213397, at *2 (W.D. Va. June 15, 2020) (Fourth Circuit); United States v. Hisey, No. 10 18-40063-01-DDC, 2020 WL 2915036, at *3-4 (D. Kan. June 3, 2020) (Tenth Circuit); 11 United States v. Scott, No. 17-CR-23, 2020 WL 1030927, at *13 (E.D. La. Mar. 3, 2020) 12 (Fifth Circuit); Gray v. United States, No. 19-C-607, 2020 WL 127646, at *3 (M.D. 13 Tenn. Jan. 10, 2020) (Sixth Circuit).4 The court does not, therefore, depart from its prior
14 holding in Mujahidh that Rehaif did not create a newly-recognized and novel rule that 15 would support a finding of cause. 16 2. Actual Prejudice 17 The court further finds that Mr. Cruickshank cannot demonstrate that the Rehaif 18 error in his case resulted in actual prejudice. To demonstrate actual prejudice to
19 overcome a procedural default, Mr. Cruickshank must show “not merely that the errors 20
21 4 A minority of courts, however, have concluded that the knowledge of status issue was not reasonably available prior to Rehaif. See, e.g., United States v. Torres, No. 22 211CR141JCMCWH, 2020 WL 5518606, at *3 (D. Nev. Sept. 14, 2020) (Ninth Circuit). 1 at . . . trial created a possibility of prejudice, but that they worked to his actual and 2 substantial disadvantage, infecting his entire trial with error of constitutional
3 dimensions.” Murray, 477 U.S. at 494 (emphasis in original). 4 Although both parties cite the above language from Murray, they disagree on the 5 specific standard that Mr. Cruickshank must meet in order to show actual prejudice. 6 Mindful of the Supreme Court’s admonition that the standard for finding cause and 7 prejudice to excuse a procedural default is a “significantly higher hurdle than would exist 8 on direct appeal,” Frady, 456 U.S. at 166, the court agrees with the Government that, at
9 minimum, Mr. Cruickshank must show that the court’s Rehaif error would have been 10 reversible plain error if it were raised on direct appeal. (See Resp. at 8.) The Ninth 11 Circuit has determined, in a recent unpublished case, that a defendant bringing a direct 12 appeal of a Rehaif error must show “a reasonable probability that, but for the error, he 13 would not have entered the plea.” United States v. Espinoza, 816 F. App’x 82, 84 (9th
14 Cir. 2020) (quoting United States v. Bain, 925 F.3d 1172, 1178 (2020)). Thus, Mr. 15 Cruickshank must show at least a reasonable probability that, but for the Rehaif error, he 16 would not have pleaded guilty to the felon-in-possession charge in order to show 17 prejudice. This he cannot do. 18 Mr. Cruickshank makes no argument, much less points to any evidence, that he
19 would have gone to trial instead of pleading guilty if he were aware that the Government 20 would have to prove that he knew he had a prior conviction for a crime punishable by 21 more than one year in prison. See Espinoza, 816 F. App’x at 84. Moreover, the record 22 before the court includes substantial evidence that Mr. Cruickshank knew of his status as 1 a convicted felon. According to the presentence report prepared in his criminal case, at 2 the time he possessed the handgun, Mr. Cruickshank had previously received prison
3 sentences of 14 months and 84 months. (PSR ¶¶ 14 & 44.) In light of the sentences 4 imposed in his earlier cases, Mr. Cruickshank could not plausibly assert that a jury would 5 find that he was unaware of his status as a person previously convicted of an offense 6 punishable by more than a year in prison.5 Cf. Rehaif, 139 S. Ct. at 2198 (noting that a 7 defendant “who was convicted of a prior crime but sentenced only to probation” might be 8 able to claim that he did not know he had been convicted of a crime punishable by more
9 than a year of imprisonment); Nair v. United States, No. C19-1751JLR, 2020 WL 10 1515627, at *3 (W.D. Wash. Mar. 30, 2020) (excusing procedural default where the 11 petitioner was actually innocent because his prior crime did not meet the § 922(g)(1) 12 criteria). In these circumstances, Mr. Cruickshank cannot show that the Rehaif error 13 caused him actual prejudice.
14 Mr. Cruickshank argues that a plain-error standard has no place in the court’s 15 analysis of prejudice in this case. Instead, he argues that the court must find that he 16 suffered actual prejudice because the omission of the knowledge-of-status element 17 “completely eliminat[ed] any incentive to develop defense arguments on his mental state 18 at the time of the firearm possession.” (Reply at 6.) The court finds, however, that Mr.
19 Cruickshank’s assertion that he might have developed defense arguments relating to his 20
5 As the Eleventh Circuit has observed, “Most people convicted of a felony know 21 that they are felons. . . [a]nd someone who has been convicted of felonies repeatedly is especially likely to know he is a felon.” United States v. Innocent, 977 F.3d 1077, 1082 22 (11th Cir. 2020) (internal citations omitted). 1 mental state had he known of the omitted element shows no more than a “possibility of 2 prejudice” rather than the “actual and substantial disadvantage” required under Murray.6
3 Mr. Cruickshank also argues that the court should excuse his procedural default 4 because the Rehaif error is structural. (Reply at 7-8.) The court declines to do so. The 5 “purpose of the structural error doctrine is to ensure insistence on certain basic, 6 constitutional guarantees that should define the framework of any criminal trial.” Weaver 7 v. Massachusetts, __ U.S. __, 137 S. Ct. 1899, 1907 (2017). The Supreme Court, 8 however, has made clear that “most constitutional errors can be harmless.” Neder v.
9 United States, 527 U.S. 1, 7 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306 10 (1991)). The Court has found an error to be “structural, and thus subject to automatic 11 reversal, only in a very limited class of cases.” Id. (internal citations and quotation marks 12 omitted).7 Neither the Supreme Court nor the Ninth Circuit has found a constitutionally 13 invalid guilty plea to be a structural error, and all but one of the circuits to consider the
14 question have found that a Rehaif error in the context of a guilty plea is not structural. 15 See United States v. Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020); United States v. 16 Trujillo, 960 F.3d 1196 (10th Cir. 2020); United States v. Hicks, 958 F.3d 399 (5th Cir. 17 2020); Carlyle v. United States, __ F. App’x __, No. 20-11399, 2020 WL 6844052, at *2 18 6 Mr. Cruickshank’s reliance on Henderson v. Morgan, 426 U.S. 637 (1976) does not 19 assist him here. The Supreme Court surveyed the factual record in that case before vacating the defendant’s plea to second degree murder on the ground that he was not informed that an intent 20 to cause the death of his victim was an element of the offense. Id. at 645-46. In addition, the defendant in Henderson asserted that he would not have pleaded guilty had he known of the omitted element. Id. 21 7 The Court concluded, for example, that a jury instruction that omits an element of an offense is not structural because such an omission “does not necessarily render a criminal trial 22 fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9. 1 (11th Cir. Nov. 23, 2020); see also United States v. Watson, 820 F. App’x 397, 400-01 2 (6th Cir. 2020) (determining that the defendant’s argument that the Rehaif error was
3 structural was foreclosed by circuit precedent requiring a showing of prejudice on plain 4 error review in the Rehaif context). But see United States v. Gary, 954 F.3d 194, 205 (4th 5 Cir. 2020), r’hg en banc denied, 963 F.3d 420 (finding that a Rehaif error is structural). 6 In Rehaif itself, the Supreme Court remanded for harmless-error review rather than 7 reversing the conviction outright. Rehaif, 139 S. Ct. at 2200. The court agrees with the 8 weight of authority that a Rehaif error is not structural.
9 In sum, the court concludes that Mr. Cruickshank has not demonstrated cause and 10 actual prejudice that would excuse his procedural default. As a result, the court does not 11 address the merits of Mr. Cruickshank’s motion. Because Mr. Cruickshank’s motion is 12 procedurally defaulted, the court DENIES Mr. Cruickshank’s 28 U.S.C. § 2255 motion to 13 vacate the judgment in his criminal matter.
14 D. Certificate of Appealability 15 Finally, the court determines that it is appropriate to issue a certificate of 16 appealability in this case. A habeas petitioner can appeal the denial of a 28 U.S.C. § 17 2255 petition only after obtaining a “certificate of appealability.” 28 U.S.C. § 2253(c); 18 see generally United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997). A court
19 may issue a certificate of appealability “only if the applicant has made a substantial 20 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, a 21 petitioner must show that “reasonable jurists could debate whether . . . the petition should 22 have been resolved in a different manner or that the issues presented were adequate to 1 deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 2 (2000) (quotations omitted); see Hanson v. Mahoney, 433 F.3d 1107, 1112 (9th Cir.
3 2006). A certificate of appealability should be granted for any issue that the petitioner 4 can demonstrate is debatable among jurists of reason, could be resolved differently by a 5 different court, or is adequate to deserve encouragement to proceed further. Jennings v. 6 Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). The court must resolve doubts about the 7 propriety of a certificate of appealability in the petitioner’s favor. Id. 8 Mr. Cruickshank seeks a certificate of appealability on the question of whether a
9 Rehaif error in a guilty plea case is structural. (Reply at 14.) Because the courts of 10 appeals are split on this question, see supra Section III.C.2, the court is persuaded that 11 this issue is debatable among jurists of reason. The court grants Mr. Cruickshank’s 12 request for a certificate of appealability on the issue of whether a Rehaif error in a guilty 13 plea case is structural error.
14 // 15 // 16 // 17 // 18 //
19 // 20 // 21 // 22 1 IV. CONCLUSION 2 For the foregoing reasons, the court DENIES Mr. Cruickshank’s motion to vacate
3 the judgment in his criminal matter under 28 U.S.C. § 2255 (Dkt. # 1) and GRANTS a 4 certificate of appealability on the issue of whether a Rehaif error in a guilty plea case is 5 structural error. 6 Dated this 4th day of December, 2020. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18
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