1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * *
8 UNITED STATES OF AMERICA, Case No. 2:09-CR-262 JCM (GWF)
9 Plaintiff(s), ORDER
10 v.
11 ALFONSO RIVERA-AVALOS, et al.,
12 Defendant(s).
13 14 Presently before the court is petitioner Juan Rodriguez’s motion pursuant to 28 U.S.C. 15 § 2255 to vacate, set aside, or correct sentence. (ECF No. 387). The United States of America 16 (“the government”) filed a response (ECF No. 397), to which petitioner replied (ECF No. 401). 17 I. Background 18 In April 2014, petitioner was sentenced to five years in custody for conspiracy to distribute 19 methamphetamine, possession of a firearm in furtherance of a drug trafficking crime, and being a 20 felon in possession of a firearm following a guilty verdict in a jury trial. (ECF No. 213). After an 21 appeal that affirmed the conviction but vacated the sentence, this court resentenced petitioner to 22 180 months in prison on the same counts. (ECF No. 310). 23 After petitioner’s conviction, the Supreme Court decided Rehaif v. United States. 139 S. 24 Ct. 2191 (2019). In Rehaif, a defendant—a foreign student who overstayed his visa and was 25 unaware of his illegal status—successfully challenged his conviction for possessing a firearm. Id. 26 at 2194–95. After Rehaif, to obtain a conviction under 28 U.S.C. §922(g), the government “must 27 prove both that the defendant knew he possessed a firearm and that he knew he belonged to the 28 relevant category of persons barred from possessing a firearm.” Id. at 2200. “For example, in a 1 felon-in-possession prosecution under § 922(g)(1), the defendant must know that his or her prior 2 conviction was punishable by more than one year of imprisonment.” United States v. Singh, 979 3 F.3d 697, 727 (9th Cir. 2020). Petitioner now moves to vacate his conviction under 28 U.S.C. § 4 2555 in light of Rehaif. (ECF No. 387). 5 II. Legal Standard 6 Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court 7 imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. 8 § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a 9 complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill 10 v. United States, 368 U.S. 424, 428 (1962). 11 Limitations on § 2255 motions are based on the fact that the movant “already has had a fair 12 opportunity to present his federal claims to a federal forum,” whether or not he took advantage of 13 the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed 14 to provide criminal defendants multiple opportunities to challenge their sentence.” United States 15 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). 16 “When a defendant has raised a claim and has been given a full and fair opportunity to 17 litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.” 18 United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Further, “[i]f a criminal defendant 19 could have raised a claim of error on direct appeal but nonetheless failed to do so,” the defendant 20 is in procedural default. Johnson, 988 F.2d at 945; see also Bousley v. United States, 523 U.S. 21 614, 622 (1998). 22 Defendants who fail to raise an issue on direct appeal may later challenge the issue under 23 § 2255 only if they demonstrate: (1) sufficient cause for the default; and (2) prejudice resulting 24 from it. See Bousley, 523 U.S. at 622. The “cause and prejudice” exception revives only defaulted 25 constitutional claims, not nonconstitutional sentencing errors. United States v. Schlesinger, 49 26 F.3d 483, 485 (9th Cir. 1994). 27 . . . 28 . . . 1 III. Discussion 2 a. Jurisdiction 3 An indictment must sufficiently charge an “offense[] against the laws of the United States.” 4 18 U.S.C. § 3231; see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Yet the 5 Supreme Court in United States v. Cotton held that “defects in an indictment do not deprive a court 6 of its power to adjudicate a case.” 533 U.S. 625, 630 (2002). A claim that “the indictment does 7 not charge a crime against the United States goes only to the merits of the case.” Id. at 630–31 8 (quoting Lamar v. United States, 240 U.S. 60, 65 (1916)). The Ninth Circuit has since held that 9 an indictment’s omission of a knowledge of status element does not deprive the court of 10 jurisdiction. See, e.g., United States v. Espinoza, 816 F. App’x 82, 84 (9th Cir. 2020); United 11 States v. Velasco-Medina, 305 F.3d 839, 845–46 (9th Cir. 2002). Thus, the court rules that it did 12 not lack jurisdiction despite the indictment not charging the Rehaif knowledge element. 13 b. Procedural Default 14 A claim not raised on direct appeal is procedurally defaulted and can only be raised in a § 15 2255 motion if the petitioner can show cause and actual prejudice or actual innocence. See 16 Bousley, 523 U.S. at 622. “[W]here the claim rests upon a new legal or factual basis that was 17 unavailable at the time of direct appeal,” a petitioner has cause for failure to raise the claim on 18 direct appeal. Braswell, 501 F.3d at 1150. Actual prejudice requires the petitioner to show “not 19 merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his 20 actual and substantial disadvantage, infecting his entire trial with error of constitutional 21 dimensions.” Frady, 456 U.S. at 170. 22 Petitioner has shown cause because Rehaif “overturn[ed] a longstanding and widespread 23 practice to which [the] Court has not spoken, but which a near-unanimous body of lower court 24 authority has expressly approved.” Reed v. Ross, 468 U.S. 1, 17 (1984). But petitioner cannot 25 show actual prejudice. 26 At trial, petitioner stipulated that at the time of the conduct underlying the instant 27 conviction he had previously been convicted of a felony. (ECF No. 185 at 2). It is implausible 28 that petitioner did not know he was a convicted felon. Accord United States v. Beale, No. 2:17- 1 cr-00050-JAD-CWH-1, 2021 WL 325713, at 3 (D. Nev. Feb. 1, 2021) (“Beale must still show 2 ‘actual prejudice’ to excuse his default. Beale can’t do so with a criminal record and sentencing 3 history like his.”); United States v. Lowe, No. 2:14-cr-00004-JAD-VCF, 2020 WL 2200852, at *1 4 n.15 (D. Nev. May 6, 2020) (collecting cases in which defendants’ prior felony convictions 5 precluded a finding of actual prejudice). “Felony status is simply not the kind of thing that one 6 forgets.” United States v. Greer, 141 S. Ct. 2090, 2100 (2021).
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * *
8 UNITED STATES OF AMERICA, Case No. 2:09-CR-262 JCM (GWF)
9 Plaintiff(s), ORDER
10 v.
11 ALFONSO RIVERA-AVALOS, et al.,
12 Defendant(s).
13 14 Presently before the court is petitioner Juan Rodriguez’s motion pursuant to 28 U.S.C. 15 § 2255 to vacate, set aside, or correct sentence. (ECF No. 387). The United States of America 16 (“the government”) filed a response (ECF No. 397), to which petitioner replied (ECF No. 401). 17 I. Background 18 In April 2014, petitioner was sentenced to five years in custody for conspiracy to distribute 19 methamphetamine, possession of a firearm in furtherance of a drug trafficking crime, and being a 20 felon in possession of a firearm following a guilty verdict in a jury trial. (ECF No. 213). After an 21 appeal that affirmed the conviction but vacated the sentence, this court resentenced petitioner to 22 180 months in prison on the same counts. (ECF No. 310). 23 After petitioner’s conviction, the Supreme Court decided Rehaif v. United States. 139 S. 24 Ct. 2191 (2019). In Rehaif, a defendant—a foreign student who overstayed his visa and was 25 unaware of his illegal status—successfully challenged his conviction for possessing a firearm. Id. 26 at 2194–95. After Rehaif, to obtain a conviction under 28 U.S.C. §922(g), the government “must 27 prove both that the defendant knew he possessed a firearm and that he knew he belonged to the 28 relevant category of persons barred from possessing a firearm.” Id. at 2200. “For example, in a 1 felon-in-possession prosecution under § 922(g)(1), the defendant must know that his or her prior 2 conviction was punishable by more than one year of imprisonment.” United States v. Singh, 979 3 F.3d 697, 727 (9th Cir. 2020). Petitioner now moves to vacate his conviction under 28 U.S.C. § 4 2555 in light of Rehaif. (ECF No. 387). 5 II. Legal Standard 6 Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court 7 imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. 8 § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a 9 complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill 10 v. United States, 368 U.S. 424, 428 (1962). 11 Limitations on § 2255 motions are based on the fact that the movant “already has had a fair 12 opportunity to present his federal claims to a federal forum,” whether or not he took advantage of 13 the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed 14 to provide criminal defendants multiple opportunities to challenge their sentence.” United States 15 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). 16 “When a defendant has raised a claim and has been given a full and fair opportunity to 17 litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.” 18 United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Further, “[i]f a criminal defendant 19 could have raised a claim of error on direct appeal but nonetheless failed to do so,” the defendant 20 is in procedural default. Johnson, 988 F.2d at 945; see also Bousley v. United States, 523 U.S. 21 614, 622 (1998). 22 Defendants who fail to raise an issue on direct appeal may later challenge the issue under 23 § 2255 only if they demonstrate: (1) sufficient cause for the default; and (2) prejudice resulting 24 from it. See Bousley, 523 U.S. at 622. The “cause and prejudice” exception revives only defaulted 25 constitutional claims, not nonconstitutional sentencing errors. United States v. Schlesinger, 49 26 F.3d 483, 485 (9th Cir. 1994). 27 . . . 28 . . . 1 III. Discussion 2 a. Jurisdiction 3 An indictment must sufficiently charge an “offense[] against the laws of the United States.” 4 18 U.S.C. § 3231; see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Yet the 5 Supreme Court in United States v. Cotton held that “defects in an indictment do not deprive a court 6 of its power to adjudicate a case.” 533 U.S. 625, 630 (2002). A claim that “the indictment does 7 not charge a crime against the United States goes only to the merits of the case.” Id. at 630–31 8 (quoting Lamar v. United States, 240 U.S. 60, 65 (1916)). The Ninth Circuit has since held that 9 an indictment’s omission of a knowledge of status element does not deprive the court of 10 jurisdiction. See, e.g., United States v. Espinoza, 816 F. App’x 82, 84 (9th Cir. 2020); United 11 States v. Velasco-Medina, 305 F.3d 839, 845–46 (9th Cir. 2002). Thus, the court rules that it did 12 not lack jurisdiction despite the indictment not charging the Rehaif knowledge element. 13 b. Procedural Default 14 A claim not raised on direct appeal is procedurally defaulted and can only be raised in a § 15 2255 motion if the petitioner can show cause and actual prejudice or actual innocence. See 16 Bousley, 523 U.S. at 622. “[W]here the claim rests upon a new legal or factual basis that was 17 unavailable at the time of direct appeal,” a petitioner has cause for failure to raise the claim on 18 direct appeal. Braswell, 501 F.3d at 1150. Actual prejudice requires the petitioner to show “not 19 merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his 20 actual and substantial disadvantage, infecting his entire trial with error of constitutional 21 dimensions.” Frady, 456 U.S. at 170. 22 Petitioner has shown cause because Rehaif “overturn[ed] a longstanding and widespread 23 practice to which [the] Court has not spoken, but which a near-unanimous body of lower court 24 authority has expressly approved.” Reed v. Ross, 468 U.S. 1, 17 (1984). But petitioner cannot 25 show actual prejudice. 26 At trial, petitioner stipulated that at the time of the conduct underlying the instant 27 conviction he had previously been convicted of a felony. (ECF No. 185 at 2). It is implausible 28 that petitioner did not know he was a convicted felon. Accord United States v. Beale, No. 2:17- 1 cr-00050-JAD-CWH-1, 2021 WL 325713, at 3 (D. Nev. Feb. 1, 2021) (“Beale must still show 2 ‘actual prejudice’ to excuse his default. Beale can’t do so with a criminal record and sentencing 3 history like his.”); United States v. Lowe, No. 2:14-cr-00004-JAD-VCF, 2020 WL 2200852, at *1 4 n.15 (D. Nev. May 6, 2020) (collecting cases in which defendants’ prior felony convictions 5 precluded a finding of actual prejudice). “Felony status is simply not the kind of thing that one 6 forgets.” United States v. Greer, 141 S. Ct. 2090, 2100 (2021). 7 In addition, the court will not rule that Rehaif error is a structural error that excuses 8 petitioner from showing actual prejudice. That is because structural errors are a very limited class 9 of errors that affect the framework within which the trial proceeds, such that it is often difficult to 10 assess the effect of the error. See United States v. Marcus, 560 U.S. 258, 263 (2010). And ruling 11 otherwise would be imprudent based on the Ninth Circuit’s treatment of Rehaif in different 12 contexts. 13 For example, in Tate v. United States, the Ninth Circuit held that Rehaif was a statutory 14 interpretation case and “did not invoke any constitutional provision or principle” that could sustain 15 a successive § 2255 motion. Tate v. United States, 982 F.3d 1226, 1228 (9th Cir. 2020). And in 16 United States v. Benamor and United States v. Johnson, the Ninth Circuit did not treat Rehaif error 17 as structural and instead conducted plain-error review and held that the error did not affect the 18 defendants’ substantial rights or the fairness, integrity, or public reputation of the judicial 19 proceedings. United States v. Johnson, 833 F. App’x 665, 668 (9th Cir. 2020); United States v. 20 Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020). 21 And after all, the Rehaif court itself remanded the case for harmless error review rather 22 than automatically reversing the conviction. S. Ct. at 2200. For these reasons, the court will not 23 excuse petitioner’s failure to show actual prejudice. 24 c. Certificate of Appealability 25 The right to appeal a court’s denial of a § 2255 motion requires a certificate of 26 appealability. To obtain such a certificate, the petitioner must make a “substantial showing of the 27 denial of a constitutional right.” 28 U.S.C. § 2253(c). That is, “[t]he petitioner must demonstrate 28 that reasonable jurists would find the district court’s assessment of the constitutional claims 1 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 2| F.3d 1074, 1077-79 (9th Cir. 2000). Based on this standard and the almost uniform treatment of 3 | post-Rehaif § 2255 motions in this district, the court denies petitioner a certificate of appealability. 4| IV. Conclusion 5 Accordingly, 6 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that petitioner’s motion 7 | pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (ECF No. 387) be, and the 8 | same hereby is, DENIED. 9 The clerk is directed to enter separate civil judgment denying petitioner’s § 2255 motion 10 | inthe matter of Rodriguez v. United States, case number 2:20-cv-01151-JCM, and close that case. 11 DATED October 21, 2022. 12 Betws ©. Atabian B UNIT EL)\STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
es C. Mahan District Judge _5-