Phillips v. United States

• Court: District Court, E.D. Tennessee
• Decided: March 10, 2021
• Docket: 2:20-cv-00258
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

ANTHONY LEE PHILLIPS, ) ) Petitioner, ) ) v. ) Nos. 2:20-CV-258 ) 2:18-CR-187 UNITED STATES OF AMERICA, ) ) Respondent. )

MEMORANDUM OPINION Before the Court is Anthony Lee Phillips’ (“Petitioner’s”) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Criminal Docket (“Crim.”) Doc. 37].1 The United States has responded in opposition [Doc. 4]. Petitioner did not file a reply, and the time for doing so has passed. See Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts; see also [Doc. 3]. For the reasons below, Petitioner’s § 2255 motion [Doc. 1; Crim. Doc. 37] will be DENIED. I. BACKGROUND In December 2018, Petitioner was charged in a two-count indictment for knowingly possessing a firearm transported in interstate commerce, having previously been convicted

1 Document numbers not otherwise specified refer to the civil docket. of a crime punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). [Crim. Doc. 1]. On February 28, 2019, Petitioner entered into a plea agreement with the

government. [Crim. Doc. 17]. Petitioner agreed to plead guilty to Count One of the Indictment and specifically pled guilty to facts which satisfy the offense elements. [See id.] The plea agreement was signed by Petitioner and attorney Joseph McAfee. In his plea agreement, Petitioner acknowledged that on November 29, 2018, at approximately 6:02 p.m., Elizabethton police officers observed Petitioner exiting a room

at the Traveler’s Inn in Elizabethton. Petitioner had active warrants for various offenses out of Carter and Washington Counties. When officers were arresting Petitioner after he entered his vehicle, they viewed a black Glock handgun box on the driver’s seat of the vehicle which contained a black, .380 caliber, Taurus TCP pistol. Officers also found a black, .22 caliber, GSG pistol, a small amount of marijuana and drug paraphernalia.

Officers knew Petitioner was a convicted felon. Petitioner admitted that he possessed the firearms listed above, that the firearms had traveled in interstate commerce to be present in Tennessee, and that the firearms are modern firearms. Petitioner further admitted that he was previously convicted of Accessory After the Fact in Washington County Criminal Court on May 28, 2014, for which he was sentenced to six years imprisonment.

The Court conducted a change of plea hearing on March 7, 2019. Although there is no transcript of that hearing in the record, the Court recalls conducting its standard colloquy with Petitioner and finding him competent to enter a guilty plea.2 The Court confirmed that Petitioner indeed wished to plead guilty. The Court also confirmed: that Petitioner had been afforded ample time to discuss the case with his attorney; that he believed that his attorney

was fully aware of all the facts on which the charges were based; that counsel had explained the meaning of any words Petitioner might not have understood; that counsel had explained the terms of Petitioner’s plea agreement to hm; and that Petitioner understood that his sentence would be determined by the Court. The presentence investigation report (“PSR”) calculated a total offense level of 12

and criminal history category of IV, resulting in a guideline range of 21 to 27 months, with a statutory maximum term of 10 years. [Crim. Doc. 22, ¶¶ 76-77]. Petitioner, through counsel, filed a notice of no objections to the PSR [Crim. Doc. 26] and a sentencing memorandum [Crim. Doc. 28], requesting a sentence at the bottom of the guideline range. The government filed a notice of no objections to the PSR [Crim. Doc.

23], and a sentencing memorandum [Crim. Doc. 27], wherein the United States requested a sentence at the top of the guideline range. On June 18, 2019, the Court sentenced Petitioner to a total of 24 months’ imprisonment. [Crim. Doc. 31, p. 2]. Petitioner did not file a direct appeal, but on December 14, 2020, he filed this § 2255 motion. II. STANDARD OF REVIEW

2 Where, as here, the same judge considering the § 2255 motion also presided over the underlying proceedings, the judge may rely on his recollections of those proceedings. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). Under § 2255(a), a federal prisoner may move to vacate, set aside, or correct his judgment of conviction and sentence if he claims that the sentence was imposed in violation of the Constitution or laws of the United States, that the court lacked jurisdiction to impose

the sentence, or that the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). As a threshold standard, to obtain post-conviction relief under § 2255, the motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding

invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). A movant bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. See Reed v. Farley, 512 U.S. 339, 353 (1994) (noting that the Petitioner had not shown that his

ability to present a defense was prejudiced by the alleged constitutional error); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (addressing the harmless-error standard that applies in habeas cases alleging constitutional error). In order to obtain collateral relief under § 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982).

When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). A movant must prove that he is entitled to relief by a preponderance of evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A motion that merely states general conclusions of law, without substantiating the allegations with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

Under Rule 8(a) of the Governing Rules, the Court is to review the answer, any transcripts, and records of prior proceedings and any material submitted under Rule 7 to determine whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8(a). If a petitioner presents a factual dispute, then “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v.

United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner’s allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of facts.” Valentine, 488 F.3d at 333 (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). The Court

FINDS no need for an evidentiary hearing in the instant case. III. ANALYSIS As an initial matter, Petitioner raises only one claim in this § 2255 motion: that the Supreme Court’s ruling in Rehaif v. United States, 139 S.Ct. 2191 (2019) now voids Petitioner’s guilty plea because the Court accepted the plea “without advising Petitioner of

the element of requiring knowledge of his or her prohibited status under 922(g)”. [Doc. 1; Crim. Doc. 37]. The Court first notes that this claim is untimely. Rehaif was decided in June 2019, and Petitioner did not file his § 2255 motion until December 2020. A petitioner has “one year from the date on which the right he asserts was initially recognized by the Supreme Court.” Dodd v. United States, 545 U.S. 353, 357 (2005). Thus, Petitioner would have had until June 22, 2020 to file his § 2255 motion based on Rehaif. Accordingly, Petitioner’s

claim will be DENIED as untimely. Even if Petitioner had timely filed this motion, his claim is barred by his collateral attack waiver in his plea agreement and procedurally defaulted because Petitioner failed to raise it on appeal. Except for a claim of ineffective assistance of counsel, a federal prisoner’s failure to raise a claim on direct appeal results in a procedural default of that

claim. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). For a federal prisoner to obtain review of a defaulted claim in a § 2255 motion, he must show cause to excuse his failure to raise the claim previously and actual prejudice resulting from the alleged violation. Bousley, 523 U.S. at 622; Peveler, 269 F.3d at 698-700. If a Petitioner cannot show cause and prejudice, he may be able to

obtain review, if his case falls within a narrow class of cases permitting review in order to prevent a fundamental miscarriage of justice, such as when new evidence shows that a constitutional violation has probably resulted in a conviction of one who is actually innocent. Bousley, 523 U.S. at 622-23, citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Here, Petitioner has not attempted to show cause or prejudice for his failure to raise

this claim on direct appeal, nor has he attempted to show that he is actually innocent, thus his claim is procedurally defaulted. When a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his sentence, he is precluded from bringing such claims. Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) (citing to United States v. Fleming, 239 F.3d 761, 763 (6th Cir. 2001). A waiver in a plea agreement is generally considered knowing and voluntary if a defendant testified that his guilty plea was not coerced and that he reviewed

and understood the agreement terms. Id. An exception to the general rule exists if the collateral attack concerns the validity of the waiver itself. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). However, in situations where the § 2255 motion does not articulate a basis for attacking the validity of the waiver, the Sixth Circuit and lower courts within the Circuit have upheld collateral attack waivers if the waivers were knowing and voluntary. Watson

v. United States, 165 F.3d at 486, 489 (6th Cir. 1999); United States v. Eversole, No. 6:05- cr-34, 2010 WL 420067, at *2, n.3 (E.D. Ky. Feb. 1, 2010). In this case, Petitioner signed a Plea Agreement containing the following waiver provision: “[t]he defendant will not file any motions or pleadings pursuant to 28 U.S.C. § 2255 or otherwise collaterally attack the defendant’s conviction(s) or sentence, with two

exceptions: The defendant retains the right to file a §2255 motion as to (i) prosecutorial misconduct not known to the defendant by the time of the entry of judgment and (ii) ineffective assistance of counsel.” [Crim. Doc. 17, p. 6]. Petitioner does not challenge the validity of the actual waiver, suggest that he did not understand the waiver, or claim that he did not sign it voluntarily. Accordingly, because

Petitioner is not attacking the validity of the plea itself, and because he expressly waived the right to collaterally attack his conviction except for claims of ineffective assistance of counsel and prosecutorial misconduct, his claim is barred by the knowing and voluntary waiver contained in the binding Plea Agreement. See Davila, 258 F.3d at 451. Even if Petitioner’s motion was not fraught with procedural deficiencies as outlined above, Petitioner’s claim would also fail on the merits. Petitioner moves to vacate his conviction under § 2255 because he contends that the

Court did not give him notice of an element of the offence, the Rehaif knowledge element. In Rehaif, the Supreme Court held that in a prosecution under 18 U.S.C. § 922(g), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S. Ct. at 2200 (2019).

Rehaif does not undermine Petitioner's conviction for several reasons. First, Defendant entered into a plea agreement, relieving the Government of its obligation to prove the elements of the charge against him beyond a reasonable doubt. “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Boce,

488 U.S. 563, 569 (1989). Petitioner also stipulated to his prior felony conviction in the offense conduct section of the both the Plea Agreement and the PSR. [Crim. Docs. 17 and 22]; see also United States v. Conley, 802 F. App'x. 919, 923, (6th Cir. Feb. 5, 2020) (“Although the stipulation of a prior felony does not automatically establish knowledge of felony status, it is strongly suggestive of it.”); Malone v. United States, 1:14-cr-438, 2019

WL 7049805, *3 (N.D. Ohio Dec. 23, 2019) (“Rehaif is inapplicable to Petitioner because whereas Rehaif was convicted by a jury, Petitioner pleaded guilty to his offense.”). Petitioner was advised of the consequences of his guilty plea by the Court and counsel and stated under oath that he understood his decision. The record reflects his guilty plea was knowing and voluntary. Having waived his right to hold the Government to its burden of proof, he cannot complain the evidence against him would have been insufficient. Rehaif further provides no remedy for Petitioner because it merely “clarified” the

felon-in-possession statute, it did not announce a new rule of constitutional law that is retroactive on collateral review. Khamisi-El v. United States, 800 F. App'x 344, 349 (6th Cir. 2020). In Khamisi-El, the Sixth Circuit denied the motion, holding “[t]he rule stated in Rehaif is a matter of statutory interpretation, not a ‘new rule of constitutional law.’ ” Id.; In re Palacios, 931 F.3d 1314 (11th Cir. 2019) (“Rehaif ... did not announce a ‘new

rule of constitutional law....’”). District courts within the Sixth Circuit have likewise rejected “actual innocence” claims based on Rehaif. See Moore v. United States, No. 2:19- cv-2572, 2019 WL 4394755 (W.D. Tenn. Sept. 12, 2019) (“Rehaif did not announce a new rule of constitutional law made retroactive to cases on collateral review.”); Wallace v. United States, No. 3:19-cv-01122, 2020 WL 2194002 (M.D. Tenn. May 6, 2020)

(same); see also Abernathy v. United States, No. 1:16-CR-81, 2019 WL 5268546, at *5 (E.D. Tenn. Oct. 17, 2019) (“The Supreme Court's holding, however, is not retroactively applicable to cases on collateral review and, therefore has no bearing on the Court's consideration of Petitioner's motion.”); Davidson v. United States, No. 1:17-CR-137, 2020 WL 5549599, at *2–3 (E.D. Tenn. Sept. 16, 2020); see also Tristian O'Kelley, v. United

States, No. 1:17-CR-16, 2020 WL 5735949, at *3 (E.D. Tenn. Sept. 24, 2020). Finally, Petitioner does not claim that he was unaware of his prior felony conviction, rather, nor does he actually claim that he did not know he belonged to the category of people barred from possessing a firearm. [Doc. 1]. Even if Petitioner had alleged “actual innocence”, Petitioner's knowledge of the ramifications of his felony convictions are irrelevant to his subsequent guilty plea and § 922(g) conviction. The law simply does not require that Petitioner knew his possession of a firearm was unlawful. See United States v.

Bowens, 938 F.3d 790, 797 (6th Cir. 2019) (“Rehaif did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.”); Matthews v. United States, No. 19- 2091, 2020 WL 2614619 (6th Cir. Jan. 6, 2020) (government is not required to prove defendant knew he was prohibited from possessing firearms to obtain § 922(g) conviction

after Rehaif). Accordingly, Petitioner’s claim is untimely, procedurally defaulted, fails on the merits and will be DENIED as he is not entitled to relief under § 2255 as to this claim. IV. CONCLUSION For the reasons above, Petitioner’s § 2255 motion [Doc. 1; Crim. Doc. 37] will be

DENIED and DISMISSED. V. CERTIFICATE OF APPEALABILITY Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if a petitioner has demonstrated a “substantial showing of a denial of a constitutional right.” Id. The district court must

“engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Id. A petitioner whose claims have been rejected on the merits satisfies the requirements of § 2253(c) by showing that jurists of reason would find the assessment of the claims debatable or wrong. Slack, 529 U.S. at 484. Having examined Petitioner’s claim

under the Slack standard, the Court finds that reasonable jurists could not find that the dismissal of those claims was debatable or wrong. Therefore, the Court will DENY issuance of a certificate of appealability. A separate judgment will enter. IT IS SO ORDERED.

ENTER: s/ Leon Jordan United States District Judge