1 UNITED STATES DISTRICT COURT 2
DISTRICT OF NEVADA 3
4 UNITED STATES OF AMERICA, Case No. 3:16-cr-00082-HDM-VPC Case No. 3:20-cv-00357-HDM 5 Plaintiff, v. 6 ORDER SHAELON MITCHELL, 7
Defendant. 8
9 Defendant Shaelon Mitchell has filed a motion to vacate, set 10 aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 11 30). The government has opposed (ECF No. 32), and Mitchell has 12 replied (ECF No. 33). 13 On December 14, 2016, Mitchell was charged by way of 14 indictment with one count of felon in possession of a firearm in 15 violation of 18 U.S.C. § 922(g). (ECF No. 1). Pursuant to an 16 agreement, Mitchell entered a plea of guilty to the charge. (ECF 17 Nos. 22 & 24). The court thereafter sentenced Mitchell to 36 months 18 in prison. (ECF No. 27 & 28). 19 Section 922(g) prohibits the possession of firearms by 20 several categories of persons, including any person who has been 21 convicted in any court of a crime punishable by a term of more 22 than one year in prison. 18 U.S.C. § 922(g)(1). At the time of his 23 conviction, Mitchell had four prior felonies. When Mitchell was 24 charged and entered his plea in this case, the government was not 25 required to prove that he knew he was a felon. United States v. 26 Enslin, 327 F.3d 788, 798 (9th Cir. 2003). But in 2019, the U.S. 27 Supreme Court concluded that a defendant may be convicted under 28 § 922(g) only if the government proves that the defendant “knew he 1 belonged to the relevant category of persons barred from possessing 2 a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). 3 On the basis of Rehaif and the government’s failure to charge or 4 prove his knowledge of status, Mitchell now moves to vacate his 5 conviction. 6 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 7 vacate, set aside, or correct his sentence if: (1) the sentence 8 was imposed in violation of the Constitution or laws of the United 9 States; (2) the court was without jurisdiction to impose the 10 sentence; (3) the sentence was in excess of the maximum authorized 11 by law; or (4) the sentence is otherwise subject to collateral 12 attack. Id. § 2255(a). 13 Mitchell argues that the omission of the Rehaif element from 14 the indictment violated his Fifth Amendment rights guaranteeing 15 that a grand jury find probable cause to support all the necessary 16 elements of the crime and his Sixth Amendment rights to notice of 17 the charges and effective assistance of counsel.1 He also alleges 18 that the defective indictment deprived the court of jurisdiction. 19 The government asserts that Mitchell has waived his right to bring 20 these claims, that his claims are procedurally defaulted, and that 21 the government is not required to prove the defendant knew his 22 possession of firearms was unlawful. 23 As part of his plea, Mitchell “waive[d] all collateral 24 challenges, including any claims under 28 U.S.C. § 2255, to his 25 conviction, sentence, and the procedure by which the Court 26 1 In his reply, Mitchell clarifies that he is not asserting an 27 independent claim of ineffective assistance of counsel claim but, rather, that he asserts a Sixth Amendment violation to show that 28 the Rehaif omission caused him prejudice. 1 adjudicated guilt and imposed sentence, except non-waivable claims 2 of ineffective assistance of counsel.” (ECF No. 22 at 11). Such 3 “[a]n unconditional guilty plea waives all non-jurisdictional 4 defenses and cures all antecedent constitutional defects, allowing 5 only an attack on the voluntary and intelligent character of the 6 plea.” United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 7 2013); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973); 8 United States v. Espinoza, 816 Fed. App’x 82, 85 (9th Cir. June 1, 9 2020) (unpublished disposition) (unconditional plea waiver 10 precludes all Fifth and Sixth Amendment claims except to the extent 11 they contest the court’s jurisdiction or the voluntariness of the 12 plea). Thus, except to the extent Mitchell attacks the jurisdiction 13 of the court, his claims are waived.2 14 Mitchell’s jurisdictional argument is without merit. The 15 omission of an element from the indictment does not affect the 16 court’s jurisdiction. United States v. Cotton, 535 U.S. 625, 630 17 (2002); United States v. Ratigan, 351 F.3d 957, 962–63 (9th Cir. 18 2003); see also United States v. Burleson, 2020 WL 4218317, at *1 19 (July 23, 2020) (unpublished disposition) (rejecting the 20 defendant’s argument that omission of the Rehaif element deprived 21 the district court of jurisdiction); Espinoza, 2020 WL 2844542, at 22 *1 (same); United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 23 2020); United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); 24 United States v. Balde, 943 F.3d 73, 88-92 (2d Cir. 2019); United 25 States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). Cf. United 26 2 The court agrees with the well-reasoned opinions of several 27 courts that none of the exceptions under Tollett to the plea waiver applies in this case. See, e.g., United States v. Kelbch, 2021 WL 28 96242, at *2 (D. Nev. Jan. 7, 2021). 1 , 979 F.3d 697, 730 (9th Cir. 2020) (on direct 2 appeal, reviewing omission of Rehaif element from indictment for 3 plain error). 4 Moreover, Mitchell’s Fifth and Sixth Amendment claims are 5 procedurally defaulted, even assuming, as Mitchell argues, that 6 they could be considered jurisdictional in nature. 7 “If a criminal defendant could have raised a claim of error 8 on direct appeal but nonetheless failed to do so, he must 9 demonstrate” either “cause excusing his procedural default, and 10 actual prejudice resulting from the claim of error,” United States 11 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), or that he is 12 actually innocent of the offense, Bousley v. United States, 523 13 U.S. 614, 622 (1998). “[C]ause for a procedural default on appeal 14 ordinarily requires a showing of some external impediment 15 preventing counsel from constructing or raising the claim.” Murray 16 v. Carrier, 477 U.S. 478, 492 (1986). Actual prejudice “requires 17 the petitioner to establish ‘not merely that the errors at ... 18 trial created a possibility of prejudice, but that they worked to 19 his actual and substantial disadvantage, infecting his entire 20 trial with error of constitutional dimensions.’” Bradford v.
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1 UNITED STATES DISTRICT COURT 2
DISTRICT OF NEVADA 3
4 UNITED STATES OF AMERICA, Case No. 3:16-cr-00082-HDM-VPC Case No. 3:20-cv-00357-HDM 5 Plaintiff, v. 6 ORDER SHAELON MITCHELL, 7
Defendant. 8
9 Defendant Shaelon Mitchell has filed a motion to vacate, set 10 aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 11 30). The government has opposed (ECF No. 32), and Mitchell has 12 replied (ECF No. 33). 13 On December 14, 2016, Mitchell was charged by way of 14 indictment with one count of felon in possession of a firearm in 15 violation of 18 U.S.C. § 922(g). (ECF No. 1). Pursuant to an 16 agreement, Mitchell entered a plea of guilty to the charge. (ECF 17 Nos. 22 & 24). The court thereafter sentenced Mitchell to 36 months 18 in prison. (ECF No. 27 & 28). 19 Section 922(g) prohibits the possession of firearms by 20 several categories of persons, including any person who has been 21 convicted in any court of a crime punishable by a term of more 22 than one year in prison. 18 U.S.C. § 922(g)(1). At the time of his 23 conviction, Mitchell had four prior felonies. When Mitchell was 24 charged and entered his plea in this case, the government was not 25 required to prove that he knew he was a felon. United States v. 26 Enslin, 327 F.3d 788, 798 (9th Cir. 2003). But in 2019, the U.S. 27 Supreme Court concluded that a defendant may be convicted under 28 § 922(g) only if the government proves that the defendant “knew he 1 belonged to the relevant category of persons barred from possessing 2 a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). 3 On the basis of Rehaif and the government’s failure to charge or 4 prove his knowledge of status, Mitchell now moves to vacate his 5 conviction. 6 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 7 vacate, set aside, or correct his sentence if: (1) the sentence 8 was imposed in violation of the Constitution or laws of the United 9 States; (2) the court was without jurisdiction to impose the 10 sentence; (3) the sentence was in excess of the maximum authorized 11 by law; or (4) the sentence is otherwise subject to collateral 12 attack. Id. § 2255(a). 13 Mitchell argues that the omission of the Rehaif element from 14 the indictment violated his Fifth Amendment rights guaranteeing 15 that a grand jury find probable cause to support all the necessary 16 elements of the crime and his Sixth Amendment rights to notice of 17 the charges and effective assistance of counsel.1 He also alleges 18 that the defective indictment deprived the court of jurisdiction. 19 The government asserts that Mitchell has waived his right to bring 20 these claims, that his claims are procedurally defaulted, and that 21 the government is not required to prove the defendant knew his 22 possession of firearms was unlawful. 23 As part of his plea, Mitchell “waive[d] all collateral 24 challenges, including any claims under 28 U.S.C. § 2255, to his 25 conviction, sentence, and the procedure by which the Court 26 1 In his reply, Mitchell clarifies that he is not asserting an 27 independent claim of ineffective assistance of counsel claim but, rather, that he asserts a Sixth Amendment violation to show that 28 the Rehaif omission caused him prejudice. 1 adjudicated guilt and imposed sentence, except non-waivable claims 2 of ineffective assistance of counsel.” (ECF No. 22 at 11). Such 3 “[a]n unconditional guilty plea waives all non-jurisdictional 4 defenses and cures all antecedent constitutional defects, allowing 5 only an attack on the voluntary and intelligent character of the 6 plea.” United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 7 2013); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973); 8 United States v. Espinoza, 816 Fed. App’x 82, 85 (9th Cir. June 1, 9 2020) (unpublished disposition) (unconditional plea waiver 10 precludes all Fifth and Sixth Amendment claims except to the extent 11 they contest the court’s jurisdiction or the voluntariness of the 12 plea). Thus, except to the extent Mitchell attacks the jurisdiction 13 of the court, his claims are waived.2 14 Mitchell’s jurisdictional argument is without merit. The 15 omission of an element from the indictment does not affect the 16 court’s jurisdiction. United States v. Cotton, 535 U.S. 625, 630 17 (2002); United States v. Ratigan, 351 F.3d 957, 962–63 (9th Cir. 18 2003); see also United States v. Burleson, 2020 WL 4218317, at *1 19 (July 23, 2020) (unpublished disposition) (rejecting the 20 defendant’s argument that omission of the Rehaif element deprived 21 the district court of jurisdiction); Espinoza, 2020 WL 2844542, at 22 *1 (same); United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 23 2020); United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); 24 United States v. Balde, 943 F.3d 73, 88-92 (2d Cir. 2019); United 25 States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). Cf. United 26 2 The court agrees with the well-reasoned opinions of several 27 courts that none of the exceptions under Tollett to the plea waiver applies in this case. See, e.g., United States v. Kelbch, 2021 WL 28 96242, at *2 (D. Nev. Jan. 7, 2021). 1 , 979 F.3d 697, 730 (9th Cir. 2020) (on direct 2 appeal, reviewing omission of Rehaif element from indictment for 3 plain error). 4 Moreover, Mitchell’s Fifth and Sixth Amendment claims are 5 procedurally defaulted, even assuming, as Mitchell argues, that 6 they could be considered jurisdictional in nature. 7 “If a criminal defendant could have raised a claim of error 8 on direct appeal but nonetheless failed to do so, he must 9 demonstrate” either “cause excusing his procedural default, and 10 actual prejudice resulting from the claim of error,” United States 11 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), or that he is 12 actually innocent of the offense, Bousley v. United States, 523 13 U.S. 614, 622 (1998). “[C]ause for a procedural default on appeal 14 ordinarily requires a showing of some external impediment 15 preventing counsel from constructing or raising the claim.” Murray 16 v. Carrier, 477 U.S. 478, 492 (1986). Actual prejudice “requires 17 the petitioner to establish ‘not merely that the errors at ... 18 trial created a possibility of prejudice, but that they worked to 19 his actual and substantial disadvantage, infecting his entire 20 trial with error of constitutional dimensions.’” Bradford v. 21 Davis, 923 F.3d 599, 613 (9th Cir. 2019) (internal citation 22 omitted). 23 Mitchell could have raised his claims on direct appeal but 24 did not do so. They are therefore procedurally defaulted. It is 25 unnecessary to resolve whether Mitchell can demonstrate cause for 26 27 28 1 the default, because even if he could, he cannot demonstrate 2 prejudice.3 3 Mitchell committed the instant offense less than six months 4 after his conviction for first degree burglary, a felony. (PSR ¶¶ 5 8-13, 39). In addition, Mitchell had shortly before that been 6 convicted of a crime that required as an element a prior felony 7 conviction. (PSR ¶ 38). Mitchell acknowledged in his plea agreement 8 that he had been previously convicted of a felony. (ECF No. 22 at 9 4-5). And finally, and most importantly, he acknowledged during 10 his plea colloquy both that he had a prior felony conviction for 11 first degree burglary and that he was aware at the time of his 12 offense that he was not allowed to possess a firearm. In light of 13 Mitchell’s admissions that he knew he was a convicted felon and 14 that he was prohibited from possessing firearms, combined with his 15 criminal history, the court is not persuaded that the outcome of 16 the proceedings would have been any different had the grand jury 17 been presented with, and the indictment had alleged, the Rehaif 18 element. 19 Mitchell argues that he suffered prejudice because he was 20 convicted by a court lacking jurisdiction. For the reasons 21 previously discussed, this argument is without merit because the 22 errors Mitchell complains of did not deprive the court of 23 jurisdiction. Mitchell also asserts prejudice on the basis that 24 the omission deprived him of effective assistance of counsel. For 25 the reasons just discussed, there is no support for Mitchell’s 26 argument that the outcome of the proceedings would have been 27
28 3 Mitchell does not argue actual innocence. 1 different if the element had been alleged. Mitchell has not 2 therefore proven deprivation of counsel. 3 Mitchell alternatively argues that he is not required to 4 demonstrate prejudice to obtain relief because the omission is 5 structural error. 6 “[C]ertain errors, termed structural errors, might affect 7 substantial rights regardless of their actual impact on an 8 appellant’s trial.” United States v. Marcus, 560 U.S. 258, 263 9 (2010) (internal punctuation and citations omitted). Thus, 10 structural error “warrant[s] habeas relief without a showing of 11 specific prejudice.” United States v. Withers, 638 F.3d 1055, 1063– 12 64 (9th Cir. 2011). “But structural errors are a very limited class 13 of errors that affect the framework within which the trial 14 proceeds, such that it is often difficult to assess the effect of 15 the error.” Marcus, 560 U.S. at 263 (internal punctuation and 16 citations omitted). Cases in which the Supreme Court has found 17 structural error include total deprivation of counsel, lack of an 18 impartial trial judge, violation of the right to a public trial 19 and an erroneous reasonable-doubt instruction. See id. (discussing 20 cases). In contrast, errors that have been found to be non- 21 structural include where the court instructed on an invalid 22 alternative theory of guilt, gave an instruction omitting an 23 element of the offense, or erroneously instructed the jury on an 24 element. Id. at 264 (discussing cases). 25 The Ninth Circuit has not yet addressed in a published opinion 26 whether omission of the Rehaif element from the indictment is 27 structural error. But it has held that the error is not structural 28 in at least one unpublished decision. See United States v. Jackson, 1 2020 WL 7624842, at *1 n.1 (9th Cir. Dec. 22, 2020). And the Third, 2 Fifth, Seventh, Eighth, and Tenth Circuits have concluded the error 3 is not structural. United States v. Nasir, -- F.3d. --, 2020 WL 4 7041357, at *19, n.30 (3d Cir. Dec. 1, 2020); United States v. 5 Coleman, 961 F.3d 1024, 1030 (8th Cir. 2020); United States v. 6 Payne, 964 F.3d 652, 657 (7th Cir. 2020); United States v. 7 Lavalais, 960 F.3d 180, 187 (5th Cir. 2020); United States v. 8 Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see also United 9 States v. Watson, 820 Fed. App’x 397, 400 (6th Cir. 2020) 10 (unpublished disposition). But see United States v. Gary, 954 F.3d 11 194, 206 (4th Cir. 2020). The court agrees with the well-reasoned 12 opinions of these courts and concludes that a Rehaif error does 13 not fall within the limited class of errors the Supreme Court has 14 found to be structural.4 15 Finally, Mitchell argues that Rehaif requires the government 16 to prove not only that he knew that he was a convicted felon but 17 also that he knew he was barred from possessing firearms. 18 Notwithstanding the fact that Mitchell admitted to the court that 19 he knew he was barred from possessing a firearm, Mitchell’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.”). Mitchell 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, Mitchell 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 Mitchell’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. 30) is hereby DENIED. 9 IT IS FURTHER ORDERED that Mitchell is DENIED a certificate of 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 25th day of January, 2021. 15 6 ural’ 9 ft 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28