Mosz v. United States

• Court: District Court, D. Nevada
• Decided: April 29, 2021
• Docket: 2:20-cv-01089
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 UNITED STATES OF AMERICA, Case No. 2:15-CR-219 JCM (VCF)

8 Plaintiff(s), ORDER

9 v.

10 JONATHAN PHILIP MOSZ,

11 Defendant(s).

12 13 Presently before the court is defendant Jonathan Philip Mosz’s motion to vacate his 14 sentence under 28 U.S.C. § 2555. (ECF No. 58). The government responded in opposition 15 (ECF No. 60) to which Mosz replied (ECF No. 61). 16 I. BACKGROUND 17 Mosz pled guilty to being a felon in possession of a firearm. (ECF No. 58 at 5). The 18 court sentenced him to 77 months in prison and 3 years of supervised release.1 (Id.). After 19 Mosz’s conviction, the Supreme Court decided Rehaif v. United States. 139 S. Ct. 2191 20 (2019). In Rehaif, a defendant—a foreign student who overstayed his visa and was unaware 21 of his illegal status—successfully challenged his conviction for possessing a firearm. Id. at 22 2194–95. After Rehaif, to obtain a conviction under 28 U.S.C. §922(g), the government 23 “must prove both that the defendant knew he possessed a firearm and that he knew he 24 25 26 1 According to the BOP inmate database, Mosz’s custodial term ended on March 16, 2021. Section 2255 only applies to prisoners “in custody under sentence of a court 27 established by Act of Congress.” 28 U.S.C. § 2255(a). A person is in custody of the United States if his or her movements “are restrained by authority of the United States . . . .” Jones 28 v. Cunningham, 371 U.S. 236, 240 (1963) (internal quotation marks omitted). Because Mosz is on supervised release, (see ECF No. 64), the court will not deny this motion as moot. 1 belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200.2 2 “For example, in a felon-in-possession prosecution under § 922(g)(1), the defendant must 3 know that his or her prior conviction was punishable by more than one year of 4 imprisonment.” United States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020). Mosz now moves 5 to vacate his conviction under 28 U.S.C. § 2555 in light of Rehaif. (ECF No. 58). 6 II. LEGAL STANDARD 7 Federal inmates can petition “to vacate, set aside or correct [their] sentence” if their 8 sentence violates the Constitution or federal law. 28 U.S.C. § 2255(a). Relief is warranted 9 only when “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. 10 United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 11 (1962). The petitioner is entitled to an evidentiary hearing “[u]nless the motion and the files 12 and records of the case conclusively show that the prisoner is entitled to no relief.” 28 13 U.S.C. § 2255(b).3 There are limitations on § 2255 relief because the petitioner “already has 14 had a fair opportunity to present his federal claims to a federal forum.” United States v. 15 Frady, 456 U.S. 152, 164 (1982). The statute’s purpose is not “to provide criminal 16 defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 17 F.2d 941, 945 (9th Cir. 1993). 18 When the petitioner had “a full and fair opportunity to litigate [his claim] on direct 19 appeal” he cannot relitigate the claim in a § 2255 motion. United States v. Hayes, 231 F.3d 20 1132, 1139 (9th Cir. 2000). And if the petitioner could have litigated his claim on direct 21 appeal but failed to so, the claim is procedurally defaulted. Massaro v. United States, 538 22 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 622 (1998). A petitioner can 23

24 2 Mosz and the government read Rehaif differently. (Compare ECF No. 57 at 7–8, 25 ECF No. 61 at 4–5, with ECF No. 58 at 5–6). Contrary to Mosz’s reading, missing in Rehaif is “any notion that, in felon-in-possession cases, the government is also required to prove that 26 the defendant knew he was prohibited from possessing a firearm, which goes to the heart of the ‘ignorance of the law’ maxim.” United States v. Reynolds, No. 2:16-cv-00296-JAD- 27 PAL, 2020 WL 5235316, at *2 (D. Nev. Sept. 2, 2020) (emphasis added). The Ninth Circuit reads Rehaif like the government does. Singh, 979 F.3d at 727. 28 3 The court will rule on this motion without an evidentiary hearing. 1 overcome procedural default if he can show cause and prejudice or actual innocence. United 2 States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007). 3 III. DISCUSSION 4 To begin with, Mosz’s motion is timely as it was filed within one year of the Supreme 5 Court deciding Rehaif.4 See 28 U.S.C. § 2255(f)(3) (The one-year statute of limitations for 6 habeas relief runs from “the date on which the right asserted was initially recognized by the 7 Supreme Court.”). Mosz’s main contention is that the indictment failed to properly charge 8 all the elements of the offense in 18 U.S.C. § 922(g)(1). (ECF No. 58 at 15–16). He says 9 this defect deprived the court of jurisdiction (ECF No. 58 at 14–16), cannot be waived in a 10 plea agreement (ECF No. 58 at 21), caused him actual prejudice (ECF No. 61 at 13–17) or, 11 in the alternative, is a structural error where actual prejudice is presumed (ECF No. 61 at 11– 12 12). The court will address these arguments in turn. 13 A. Jurisdiction 14 An indictment must sufficiently charge an “offense[] against the laws of the United 15 States.” 18 U.S.C. § 3231; see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 16 2003). Yet the Supreme Court in United States v. Cotton held that “defects in an indictment 17 do not deprive a court of its power to adjudicate a case.” 533 U.S. 625, 630 (2002). A claim 18 that “the indictment does not charge a crime against the United States goes only to the merits 19 of the case.” Id. at 630–31 (quoting Lamar v. United States, 240 U.S. 60, 65 (1916)). 20 Mosz’s reliance on two pre-Cotton Ninth Circuit cases is unavailing. (ECF No. 58 at 14). 21 And regardless, the Ninth Circuit has since held that an indictment’s omission of a 22 knowledge of status element does not deprive the court of jurisdiction. See, e.g., United 23 States v. Espinoza, 816 F. App’x 82, 84 (9th Cir. 2020); United States v. Velasco-Medina, 24 305 F.3d 839, 845–46 (9th Cir. 2002). Thus, the court rules that it did not lack jurisdiction 25 despite the indictment not charging the Rehaif knowledge element. 26 27 4 However, this motion is timely only if Rehaif applies retroactively. Because the courts are divided on this issue, the court will assume that Rehaif applies retroactively for the 28 purpose of this motion. United States v. Bueno, No. 2:17-cv-00406-RCJ-GWF, 2020 WL 4505525, at *1 (D. Nev. Aug. 5, 2020). 1 B. Waiver of § 2255 Challenges in Plea Agreement 2 Mosz “knowingly and expressly waive[d] all collateral challenges, including any 3 claims under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the 4 court adjudicated guilt and imposed sentence.” (Plea Agreement, ECF No. 28 at 9). The 5 Supreme Court in Tollet v. Henderson held that such a waiver in a guilty plea bars 6 “independent claims relating to the deprivation of constitutional rights that occurred prior to 7 the entry of the guilty plea” except claims related to the knowing and voluntary nature of the 8 plea and claims of ineffective assistance of counsel. 411 U.S. 258, 267 (1973). In addition, 9 only a few select claims that “implicate[ ] ‘the very power of the State’ to prosecute the 10 defendant” are not barred by Tollett. Class v. United States, 138 S. Ct. 798, 803 (2018) 11 (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)); see also United States v. Chavez- 12 Diaz, 949 F.3d 1202, 1208 (9th Cir. 2020). 13 While the Ninth Circuit has suggested that the Tollett bar may not apply when the 14 indictment fails to charge an offense, United States v. Johnston, 199 F.3d 1015, 1020 n.3 (9th 15 Cir. 1999), the Supreme Court has upheld the bar where the constitutional defect could have 16 been cured with a new indictment. See Class v. United States, 138 S. Ct. 798, 804–05 17 (2018). That is the case here. Any claims that the defective indictment violated Mosz’s right 18 to be free from prosecution absent a valid grand jury indictment and his right to adequate 19 counsel and notice could have been cured by a new indictment. (ECF No. 58 at 16–21); 20 accord Bueno, 2020 WL 4505525, at *3–4. 21 Although the Ninth Circuit has not squarely addressed this issue, other circuits have 22 held that Tollett bars habeas relief based on an indictment without the Rehaif knowledge 23 element. United States v. Dowthard, 948 F.3d 814, 817 (7th Cir. 2020) (“[A] guilty plea 24 waive[s the] right to assert that the indictment fail[s] to state an offense.”); United States v. 25 Lavalais, 960 F.3d 180, 186 (5th Cir. 2020) (“To the extent [the defendant] argues his 26 indictment is fatally defective because it did not contain an element of the offense under § 27 922(g), he failed to preserve that claim by pleading guilty.”). Thus, the court finds that 28 1 Mosz’s waiver in his plea forecloses this § 2255 claim. Accord United States v. Beale, No. 2 2:17-cv-00050-JAD-CWH, 2021 WL 325713, at *5 (D. Nev. Feb. 1, 2021). 3 C. Procedural Default 4 Even if Mosz did not waive this § 2255 claim, he cannot show actual prejudice to 5 overcome his procedural default. As discussed, a claim not raised on direct appeal is 6 procedurally defaulted and can only be raised in a § 2255 motion if the petitioner can show 7 cause and actual prejudice or actual innocence. See Bousley, 523 U.S. at 622. “[W]here the 8 claim rests upon a new legal or factual basis that was unavailable at the time of direct 9 appeal,” a petitioner has cause for failure to raise the claim on direct appeal. Braswell, 501 10 F.3d at 1150. Actual prejudice requires the petitioner to show “not merely that the errors 11 at . . . trial created a possibility of prejudice, but that they worked to his actual and 12 substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 13 Frady, 456 U.S. at 170. 14 Mosz has shown cause because Rehaif “overturn[ed] a longstanding and widespread 15 practice to which [the] Court has not spoken, but which a near-unanimous body of lower 16 court authority has expressly approved.” Reed v. Ross, 468 U.S. 1, 17 (1984). But Mosz 17 cannot show actual prejudice. At the time of the offense, he had “previously served more 18 than a year in prison for his prior Nevada convictions for felon in possession of a firearm.” 19 (ECF No. 60 at 18 (emphasis in original)). Mosz’s criminal history score was 22 and his 20 presentence investigation report listed several violent felony convictions and arrests. (PSR 21 ¶¶ 42–61). It is simply implausible that Mosz did not know he was a convicted felon. 22 Accord Beale, 2021 WL 325713, at *3 (“Beale must still show ‘actual prejudice’ to excuse 23 his default. Beale can’t do so with a criminal record and sentencing history like his.”); United 24 States v. Lowe, No. 2:14-cr-00004-JAD-VCF, 2020 WL 2200852, at *1 n.15 (D. Nev. May 25 6, 2020) (collecting cases in which defendants’ prior felony convictions precluded a finding 26 of actual prejudice). 27 In addition, the court will not rule that Rehaif error is a structural error that excuses 28 Mosz from showing actual prejudice. That is because structural errors are a very limited 1 class of errors that affect the framework within which the trial proceeds, such that it is often 2 difficult to assess the effect of the error. See United States v. Marcus, 560 U.S. 258, 263 3 (2010). And ruling otherwise would be imprudent based on the Ninth Circuit’s treatment of 4 Rehaif in different contexts. For example, in Tate v. United States, the Ninth Circuit held 5 that Rehaif was a statutory interpretation case and “did not invoke any constitutional 6 provision or principle” that could sustain a successive § 2255 motion. Tate v. United States, 7 982 F.3d 1226, 1228 (9th Cir. 2020). And in United States v. Benamor and United States v. 8 Johnson, the Ninth Circuit did not treat Rehaif error as structural and instead conducted 9 plain-error review and held that the error did not affect the defendants’ substantial rights or 10 the fairness, integrity, or public reputation of the judicial proceedings. United States v. 11 Johnson, 833 F. App’x 665, 668 (9th Cir. 2020); United States v. Benamor, 937 F.3d 1182, 12 1189 (9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020). And after all, the Rehaif court 13 itself remanded the case for harmless error review rather than automatically reversing the 14 conviction. Rehaif, 139 S. Ct. at 2200. For these reasons, the court will not excuse Mosz’s 15 failure to show actual prejudice. 16 D. Certificate of Appealability 17 The right to appeal a court’s denial of a § 2255 motion requires a certificate of 18 appealability. To obtain such a certificate, the petitioner must make a “substantial showing 19 of the denial of a constitutional right.” 28 U.S.C. § 2253(c). That is, “[t]he petitioner must 20 demonstrate that reasonable jurists would find the district court’s assessment of the 21 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 22 also James v. Giles, 221 F.3d 1074, 1077–79 (9th Cir. 2000). Based on this standard and the 23 almost uniform treatment of post-Rehaif § 2255 motions in this district, the court denies 24 Mosz a certificate of appealability. 25 IV. CONCLUSION 26 Accordingly, 27 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Mosz’s § 2255 28 motion (ECF No. 58) be, and the same hereby is, DENIED. 1 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 2 The clerk shall enter a separate civil judgment in 2:20-cv-01089-JCM. 3 DATED April 29, 2021. 4 Mbt © Malar 5 UNITED) STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _7-