1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 UNITED STATES OF AMERICA, Case No. 2:17-cr-00240-KJD-CWH-1 No. 2:20-cv-01152-KJD 8 Respondent/Plaintiff, ORDER 9 v.
10 RAHEEM SEAWRIGHT,
11 Petitioner/Defendant.
12 Presently before the Court is Movant’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set 13 Aside, or Correct Sentence By a Person in Federal Custody (#54). The government filed a 14 Motion for Leave to Advise the Court of Legal Developments Relevant to Defendant’s Motion to 15 Vacate Sentence (#55) and Movant did not reply. 16 I. Factual and Procedural Background 17 Movant Raheem Seawright (“Seawright” or “Defendant”) was convicted on his guilty plea of 18 unlawful possession of a firearm by a previously convicted felon. He now requests that the Court 19 vacate his sentence under 28 U.S.C. § 2255, asserting that his indictment and subsequent 20 conviction are invalid. 21 Seawright has a lengthy criminal history, dating back to 2002 at age 20. Seawright has been 22 charged with various crimes, including burglary, assault, and at least two robberies. (PSR). In 23 2008, after pleading guilty to robbery, he was sentenced to 7 to 14 years in prison. Id. 24 After that conviction, Seawright was indicted by a grand jury and charged with one count for 25 felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to a written plea 26 agreement, Seawright plead guilty. He was sentenced to 23 months’ imprisonment. His signed 27 plea agreement stated that (1) he knowingly possessed a firearm; (2) at the time he possessed that 28 firearm he had previously been convicted of a crime punishable by a term of imprisonment 1 exceeding one year; and (3) if he elected to go to trial instead of pleading guilty, the United 2 States could prove his guilt beyond a reasonable doubt. (#43). 3 Seawright now argues that the indictment was defective because it failed to describe the 4 criminal conduct which deprived this Court of jurisdiction. (#54). Seawright further alleges that 5 the “defect” in his indictment violated his Fifth and Sixth Amendment rights. Id. 6 I. Legal Standard 7 28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the 8 sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the 9 court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the 10 maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28 11 U.S.C. § 2255(a). 12 Under 18 U.S.C. § 922(g), it is “unlawful for any person” who falls within one of nine 13 enumerated categories to “possess in or affecting commerce any firearm or ammunition.” 14 Section 924(a)(2) sets out the penalties applicable to “[w]however knowingly violates” § 922(g). 15 Before June 2019, courts treated the knowledge requirement in § 924(a)(2) as applying only to 16 the defendant’s possession of a firearm or ammunition, not to the fact that he fell within the 17 relevant enumerated category. But on June 21, 2019, the Supreme Court issued its decision in 18 Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s knowledge “that he 19 fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the 20 like)” is an element of a § 922(g) offense. Id. at 2194. This decision applies to all § 922(g) 21 categories, including felons under § 922(g)(1). A felon is one who has been convicted of a crime 22 punishable by more than one year of imprisonment. 23 In Rehaif, the Supreme Court stated: 24 The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew 25 both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was 26 a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct 27 and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he 28 possessed a firearm and also that he knew he had the relevant status when he possessed it. 1 Id. Rehaif does not stand for the proposition that the government must prove the defendant 2 knew his possession of the firearm was unlawful. Rehaif requires proof of the defendant’s 3 felonious status. So, in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the government 4 must prove that (1) the defendant knew he possessed a firearm and that (2) he knew he belonged 5 to the relevant category of persons barred from possessing a firearm. See id. at 2200. To hold 6 otherwise would mean that pure ignorance of the United States Code was a sufficient defense. 7 The Supreme Court also recently held that “[i]n felon-in-possession cases, a Rehaif error is 8 not a basis for plain-error relief unless the defendant first makes a sufficient argument or 9 representation on appeal that he would have presented evidence at trial that he did not in fact 10 know he was a felon.” Greer v. United States, 141 S. Ct. 2090, 2093 (2021). The Court held that 11 the defendants in that case must have shown that had the Rehaif errors been correctly advised, 12 there was a “reasonable possibility” they would been acquitted or not have plead guilty. Id. The 13 Court held that it was unlikely they would have carried that burden because both had been 14 convicted of multiple felonies before and those “prior convictions are substantial evidence that 15 they knew they were felons.” Id. The Court also rejected the argument that a Rehaif error is a 16 structural one that requires automatic vacatur and held that “Rehaif errors fit comfortably within 17 the ‘general rule’ that ‘a constitutional error does not automatically require reversal of a 18 conviction.’” Id., quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991). 19 II. Analysis 20 Seawright asserts that in light of Rehaif, his sentence is unconstitutional and must be 21 remanded because (1) the indictment failed to allege a cognizable crime against the United States 22 and therefore stripped the Court of jurisdiction; (2) the grand jury was not required to find 23 probable cause as per the defective indictment which violated his Fifth Amendment rights; and 24 (3) Seawright was not informed of the nature and cause of the accusation which violated his 25 Sixth Amendment rights. (#31, at 13-14). 26 The government pointed the Court to the Supreme Court’s decision in Greer and the Ninth 27 Circuit’s orders consistently denying certificates of appealability to defendant’s challenging this 28 Court’s denial of Rehaif-based § 2255 motions. (#55 at 3). 1 A. Jurisdiction 2 Seawright argues that his indictment failed to describe the criminal conduct as per Rehaif, 3 which constitutes a fatal defect and deprived the Court of jurisdiction. (#54, at 14). However, the 4 Ninth Circuit has ruled on this identical argument, holding that “the indictment’s omission of the 5 knowledge of status requirement did not deprive the district court of jurisdiction.” United States 6 v. Espinoza, 816 Fed. Appx.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 UNITED STATES OF AMERICA, Case No. 2:17-cr-00240-KJD-CWH-1 No. 2:20-cv-01152-KJD 8 Respondent/Plaintiff, ORDER 9 v.
10 RAHEEM SEAWRIGHT,
11 Petitioner/Defendant.
12 Presently before the Court is Movant’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set 13 Aside, or Correct Sentence By a Person in Federal Custody (#54). The government filed a 14 Motion for Leave to Advise the Court of Legal Developments Relevant to Defendant’s Motion to 15 Vacate Sentence (#55) and Movant did not reply. 16 I. Factual and Procedural Background 17 Movant Raheem Seawright (“Seawright” or “Defendant”) was convicted on his guilty plea of 18 unlawful possession of a firearm by a previously convicted felon. He now requests that the Court 19 vacate his sentence under 28 U.S.C. § 2255, asserting that his indictment and subsequent 20 conviction are invalid. 21 Seawright has a lengthy criminal history, dating back to 2002 at age 20. Seawright has been 22 charged with various crimes, including burglary, assault, and at least two robberies. (PSR). In 23 2008, after pleading guilty to robbery, he was sentenced to 7 to 14 years in prison. Id. 24 After that conviction, Seawright was indicted by a grand jury and charged with one count for 25 felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to a written plea 26 agreement, Seawright plead guilty. He was sentenced to 23 months’ imprisonment. His signed 27 plea agreement stated that (1) he knowingly possessed a firearm; (2) at the time he possessed that 28 firearm he had previously been convicted of a crime punishable by a term of imprisonment 1 exceeding one year; and (3) if he elected to go to trial instead of pleading guilty, the United 2 States could prove his guilt beyond a reasonable doubt. (#43). 3 Seawright now argues that the indictment was defective because it failed to describe the 4 criminal conduct which deprived this Court of jurisdiction. (#54). Seawright further alleges that 5 the “defect” in his indictment violated his Fifth and Sixth Amendment rights. Id. 6 I. Legal Standard 7 28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the 8 sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the 9 court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the 10 maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28 11 U.S.C. § 2255(a). 12 Under 18 U.S.C. § 922(g), it is “unlawful for any person” who falls within one of nine 13 enumerated categories to “possess in or affecting commerce any firearm or ammunition.” 14 Section 924(a)(2) sets out the penalties applicable to “[w]however knowingly violates” § 922(g). 15 Before June 2019, courts treated the knowledge requirement in § 924(a)(2) as applying only to 16 the defendant’s possession of a firearm or ammunition, not to the fact that he fell within the 17 relevant enumerated category. But on June 21, 2019, the Supreme Court issued its decision in 18 Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s knowledge “that he 19 fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the 20 like)” is an element of a § 922(g) offense. Id. at 2194. This decision applies to all § 922(g) 21 categories, including felons under § 922(g)(1). A felon is one who has been convicted of a crime 22 punishable by more than one year of imprisonment. 23 In Rehaif, the Supreme Court stated: 24 The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew 25 both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was 26 a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct 27 and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he 28 possessed a firearm and also that he knew he had the relevant status when he possessed it. 1 Id. Rehaif does not stand for the proposition that the government must prove the defendant 2 knew his possession of the firearm was unlawful. Rehaif requires proof of the defendant’s 3 felonious status. So, in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the government 4 must prove that (1) the defendant knew he possessed a firearm and that (2) he knew he belonged 5 to the relevant category of persons barred from possessing a firearm. See id. at 2200. To hold 6 otherwise would mean that pure ignorance of the United States Code was a sufficient defense. 7 The Supreme Court also recently held that “[i]n felon-in-possession cases, a Rehaif error is 8 not a basis for plain-error relief unless the defendant first makes a sufficient argument or 9 representation on appeal that he would have presented evidence at trial that he did not in fact 10 know he was a felon.” Greer v. United States, 141 S. Ct. 2090, 2093 (2021). The Court held that 11 the defendants in that case must have shown that had the Rehaif errors been correctly advised, 12 there was a “reasonable possibility” they would been acquitted or not have plead guilty. Id. The 13 Court held that it was unlikely they would have carried that burden because both had been 14 convicted of multiple felonies before and those “prior convictions are substantial evidence that 15 they knew they were felons.” Id. The Court also rejected the argument that a Rehaif error is a 16 structural one that requires automatic vacatur and held that “Rehaif errors fit comfortably within 17 the ‘general rule’ that ‘a constitutional error does not automatically require reversal of a 18 conviction.’” Id., quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991). 19 II. Analysis 20 Seawright asserts that in light of Rehaif, his sentence is unconstitutional and must be 21 remanded because (1) the indictment failed to allege a cognizable crime against the United States 22 and therefore stripped the Court of jurisdiction; (2) the grand jury was not required to find 23 probable cause as per the defective indictment which violated his Fifth Amendment rights; and 24 (3) Seawright was not informed of the nature and cause of the accusation which violated his 25 Sixth Amendment rights. (#31, at 13-14). 26 The government pointed the Court to the Supreme Court’s decision in Greer and the Ninth 27 Circuit’s orders consistently denying certificates of appealability to defendant’s challenging this 28 Court’s denial of Rehaif-based § 2255 motions. (#55 at 3). 1 A. Jurisdiction 2 Seawright argues that his indictment failed to describe the criminal conduct as per Rehaif, 3 which constitutes a fatal defect and deprived the Court of jurisdiction. (#54, at 14). However, the 4 Ninth Circuit has ruled on this identical argument, holding that “the indictment’s omission of the 5 knowledge of status requirement did not deprive the district court of jurisdiction.” United States 6 v. Espinoza, 816 Fed. Appx. 82, 84 (9th Cir. 2020). “The Supreme Court has explicitly rejected 7 ‘the view that indictment omissions deprive a court of jurisdiction…” and this holding applies 8 where ‘an indictment fails to allege the specific intent required’ for a crime[.]” Id., quoting 9 United States v. Cotton, 535 U.S. 625, 631 (2002), United States v. Velasco-Medina, 205 F.3d 10 839, 845-46 (9th Cir. 2002). Therefore, the Court rejects Seawright’s argument that this Court 11 lacked jurisdiction. 12 B. Fifth Amendment Rights 13 Seawright also argues that because of the insufficient indictment, his Fifth Amendment rights 14 were violated, and his sentence should be vacated. (#54, at 14). “The Fifth Amendment’s grand 15 jury requirement establishes the ‘substantial right to be tried only on charges presented in an 16 indictment returned by a grand jury.’” United States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017), 17 quoting United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001). Seawright asserts that 18 the failure to include the Rehaif elements “impermissibly allow[ed] conviction on a charge never 19 considered by the grand jury” and that he should not have been tried based off this faulty 20 indictment. (#54, at 18). He also argues that this was a structural error that does not require a 21 showing of prejudice. Id. at 19. 22 “In this circuit an indictment missing an essential element that is properly challenged before 23 trial must be dismissed.” United States v. Qazi, 975 F.3d 989, 991 (9th Cir. 2020). Seawright has 24 not presented any evidence that he properly challenged his indictment before trial. Further, the 25 Supreme Court has held that a Rehaif error is not a structural one, so Seawright must show actual 26 prejudice. In Greer, the Court explained that “[s]tructural errors are errors that affect the ‘entire 27 conduct of the [proceeding] from beginning to end” and consist of things like “the denial of 28 counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a 1 jury that guilt must be proved beyond a reasonable doubt.” Greer, 141 S. Ct., at 2100. There, the 2 Court held that “the omission of a single element from jury instructions or the omission of a 3 required warning from a Rule 11 plea colloquy–are not structural because they do not 4 ‘necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining 5 guilt or innocence.” Id., quoting Neder v. United States, 527 U.S. 1, 9 (1999). The Court finds 6 that here, the omission of the Rehaif requirement in the indictment does not amount to a 7 structural error because it did not render Seawright’s legal proceedings fundamentally unfair or 8 an unreliable vehicle for him deciding to plead guilty. As noted in Greer, “[i]f a person is a felon, 9 he ordinarily knows he is a felon.” Greer, 141 S. Ct., at 2097. “Felony status is simply not the 10 kind of thing that one forgets.” Id., quoting United States v. Gary, 963 F.3d 420, 423 (4th Cir. 11 2020). Seawright has not made an argument that he did not know he was a felon, nor has he 12 made a sufficient argument that the indictment truly did infect the entire judicial proceeding such 13 that he would have changed his guilty plea. 14 C. Sixth Amendment Rights 15 Seawright makes a similar argument regarding his Sixth Amendment rights– that the 16 indictment did not give him reasonable certainty of the nature of the accusation against him and 17 that it inhibited his counsel’s ability to properly defend him. (#54, at 21-23). The Court does not 18 find this convincing. Again, Seawright has not made any representations that he did not know of 19 his felonious status at the time he possessed the gun, and he has not shown in any way that it 20 affected his guilty plea. His signed plea agreement explicitly states that he was a previously 21 convicted felon at the time he possessed the gun. 22 Seawright asserts this also was a structural error that entitles him to relief without showing 23 prejudice. Id. at 22. However, as clarified in Greer and explained above, this was not a structural 24 error. Seawright has been convicted of a felony before, which is strong evidence that he knew he 25 was in the relevant category of persons prohibited from possessing a firearm. Further, the 26 Supreme Court reasoned that when a defendant considers pleading guilty for this charge, he will 27 usually recognize that as a felon, a jury would find he knew he was a felon when he possessed 28 the gun and would likely factor that in when making the decision. Greer, 141 S. Ct., at 2097. “In 1 short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain- 2 error review of showing a ‘reasonable probability’ that, but for the Rehaif error, the outcome of 3 the district court proceedings would have been different.” Id. Seawright has not made a showing 4 that his Sixth Amendment rights were violated because of the Rehaif error, and as per Greer, his 5 sentence will not be vacated. 6 III. Certificate of Appealability 7 Finally, the Court must deny a certificate of appealability. To proceed with an appeal, 8 petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 9 22(b); 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United 10 States v.Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a 11 substantial showing of the denial of a constitutional right” to warrant a certificate of 12 appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 13 “The petitioner must demonstrate that reasonable jurists would find the district court's 14 assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). 15 To meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are 16 debatable among jurists of reason; that a court could resolve the issues differently; or that the 17 questions are adequate to deserve encouragement to proceed further. Id. Seawright has not met 18 his burden in demonstrating that there was any reasonable probability that he did not know that 19 he was a felon and, therefore, prohibited from possessing a firearm. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 IV. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or 3 Correct Sentence under 28 U.S.C. § 2255 (#54) is DENIED. 4 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Respondent 5 and against Movant in the corresponding civil action, 2:20-cv-01152-KJD, and close that case; 6 IT IS FURTHER ORDERED that Movant is DENIED a Certificate of Appealability. 7| DATED this 5" day of July 2023. 8 Led 10 Kent J. Dawson United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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