1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Marc Ryan Shipley, No. CV-20-00268-TUC-DCB
10 Petitioner, CR 16-01061-TUC-DCB (JR)
11 v. ORDER
12 United States of America,
13 Respondent. 14 15 Movant, Defendant Marc Ryan Shipley, files a Petition under 28 U.S.C. § 2255, to 16 Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the Petition). The 17 Court denies the Petition for all the reasons explained by the Government in its Response. 18 (Doc. 4.) 19 On January 31, 2018, a jury convicted the Defendant of three counts of possession 20 of firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The 21 Court sentenced him to 96 months in prison on each count, to run concurrently, followed 22 by three years of supervised release. 23 The Defendant appealed his conviction. The Ninth Circuit Court of Appeals denied 24 the appeal, a petition for rehearing and rehearing en banc, and entered the Mandate on 25 August 16, 2019, affirming the convictions. On June 22, 2020, the Defendant/Movant filed 26 this habeas Petition, pursuant to 28 U.S.C. § 2255. (Doc. 1.) On September 4, 2020, the 27 Government filed a Response. (Doc. 4.) Movant did not file a Reply. The Court denies the 28 habeas Petition for all the reasons explained by the Government in the Response. The bulk 1 of the arguments raised in the Petition are procedurally precluded, and two fail on the 2 merits. 3 Motion Under 28 U.S.C. § 2255 4 Pursuant to 28 U.S.C. § 2255, a petition for writ of habeas corpus should be 5 presented to the court which imposed the allegedly improper judgment of conviction and 6 sentence. 28 U.S.C. § 2255. According to Rule 4(a) of the Rules Governing Section 2255 7 Proceedings, the petition shall be directed to the judge who sentenced the petitioner. 8 Therefore, this Court considers the merits of the pending Petition. 9 When a § 2255 motion is made, "[u]nless the motion and the files and records of 10 the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant 11 a prompt hearing thereon." 28 U.S.C. § 2255. The standard is whether the Movant has 12 made specific factual allegations that, if true, state a claim on which relief could be granted. 13 United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). A hearing must be granted 14 unless the allegations, when viewed against the record, do not state a claim for relief or are 15 so palpably incredible or patently frivolous as to warrant summary dismissal. Blackledge 16 v. Allison, 431 U.S. 63, 76 (1977); Baumann v. United States, 692 F.2d 565, 571, 581 (9th 17 Cir.1982). 18 Movant alleges nine grounds for relief under 28 U.S.C. § 2255 in the habeas 19 Petition. In Ground One, he alleges that Rehaif v. United States, 139 S. Ct. 2191 (2019), 20 applies to his case retroactively. In Ground Two, he alleges that his attorneys were 21 ineffective in reviewing and explaining the plea agreement. In Ground Three, Movant 22 asserts a Fourth Amendment violation. In Ground Four, he alleges that his double 23 jeopardy rights were violated. In Ground Five, Movant claims his attorney failed to meet 24 with him before filing a response regarding the pretrial sentencing report and counsel 25 failed to address inaccuracies in the report. In Ground Six, Petitioner asserts a violation 26 under Brady v. Maryland, 373 U.S. 83 (1963). In Ground Seven, Movant claims that 27 counsel rendered ineffective assistance concerning restoration of his right to possess 28 firearms. In Ground Eight, he alleges that agents obtained warrants based upon false 1 statements. In Ground Nine, he alleges counsel repeatedly failed to file motions pursuant 2 to Franks v. Delaware, 438 U.S. 154 (1978). 3 The Movant relies on new law, Rehaif v. United States, 139 S.Ct. 2191 (2019), 4 which was decided after his appeal. The Supreme Court held that in a firearm case 5 prosecuted under 18 U.S.C. § 922(g), the Government must prove defendant’s knowledge 6 of the circumstance that causes him to be prohibited from possessing firearms and 7 ammunition. Id. at 2200. Movant argues that Rehaif supports his defense at trial that he 8 did not know he was illegally in possession of a firearm because he believed his right to 9 bear arms had been reinstated by a state court order. The Court rejected this argument 10 because the state court issued this Order on December 14, 2006, prior to the 2008 federal 11 felony conviction relied on by the Government as the predicate felony element for the § 12 922(g) offense. Additionally, the Court reviewed the transcript and minute entry from the 13 state proceeding and found that Judge Bryson told the defendant he had no jurisdiction to 14 restore Defendant’s right to possess guns pursuant to federal law. 15 In the context of the Movant’s argument that he didn’t know he could not legally 16 possess a firearm, Rehaif does not aid him. The Supreme Court did not change the generally 17 accepted rule that a mistake of law is not a defense to criminal activity. It remains true that 18 the Government need only prove that the Defendant consciously possessed what he knew 19 to be a firearm, and there is no requirement to know his possession is unlawful. Similarly, 20 under Rehaif, the Government need only prove that the Defendant knew he was a member 21 of one of the nine categories of individuals prohibited from receiving, shipping, 22 transporting, or possessing firearms and ammunition, including being a convicted felon. 18 23 U.S.C. § 922(g)(1). Prior to Rehaif the Government only had to prove knowledge related 24 to possessing the firearm, not knowledge of the felony conviction, which requires a 25 showing by uncontroverted evidence that a defendant was sentenced to more than a year 26 in prison. 27 Here, the parties stipulated that the defendant had previously been convicted of a 28 crime punishable by imprisonment for a term exceeding one year, i.e., a felony. The 1 Government did not prove the Defendant knew he was a convicted felon. As explained in 2 the Response to the 2255 habeas Petition, the Movant cannot show that refusing to correct 3 this error would result in a miscarriage of justice because on a retrial, the Government 4 could show that he was sentenced to 24 months in prison and served at least 21 months in 5 prison for these convictions. (Response (Doc. 4) at 8 (citing Presentence Report ¶ 37)).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Marc Ryan Shipley, No. CV-20-00268-TUC-DCB
10 Petitioner, CR 16-01061-TUC-DCB (JR)
11 v. ORDER
12 United States of America,
13 Respondent. 14 15 Movant, Defendant Marc Ryan Shipley, files a Petition under 28 U.S.C. § 2255, to 16 Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the Petition). The 17 Court denies the Petition for all the reasons explained by the Government in its Response. 18 (Doc. 4.) 19 On January 31, 2018, a jury convicted the Defendant of three counts of possession 20 of firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The 21 Court sentenced him to 96 months in prison on each count, to run concurrently, followed 22 by three years of supervised release. 23 The Defendant appealed his conviction. The Ninth Circuit Court of Appeals denied 24 the appeal, a petition for rehearing and rehearing en banc, and entered the Mandate on 25 August 16, 2019, affirming the convictions. On June 22, 2020, the Defendant/Movant filed 26 this habeas Petition, pursuant to 28 U.S.C. § 2255. (Doc. 1.) On September 4, 2020, the 27 Government filed a Response. (Doc. 4.) Movant did not file a Reply. The Court denies the 28 habeas Petition for all the reasons explained by the Government in the Response. The bulk 1 of the arguments raised in the Petition are procedurally precluded, and two fail on the 2 merits. 3 Motion Under 28 U.S.C. § 2255 4 Pursuant to 28 U.S.C. § 2255, a petition for writ of habeas corpus should be 5 presented to the court which imposed the allegedly improper judgment of conviction and 6 sentence. 28 U.S.C. § 2255. According to Rule 4(a) of the Rules Governing Section 2255 7 Proceedings, the petition shall be directed to the judge who sentenced the petitioner. 8 Therefore, this Court considers the merits of the pending Petition. 9 When a § 2255 motion is made, "[u]nless the motion and the files and records of 10 the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant 11 a prompt hearing thereon." 28 U.S.C. § 2255. The standard is whether the Movant has 12 made specific factual allegations that, if true, state a claim on which relief could be granted. 13 United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). A hearing must be granted 14 unless the allegations, when viewed against the record, do not state a claim for relief or are 15 so palpably incredible or patently frivolous as to warrant summary dismissal. Blackledge 16 v. Allison, 431 U.S. 63, 76 (1977); Baumann v. United States, 692 F.2d 565, 571, 581 (9th 17 Cir.1982). 18 Movant alleges nine grounds for relief under 28 U.S.C. § 2255 in the habeas 19 Petition. In Ground One, he alleges that Rehaif v. United States, 139 S. Ct. 2191 (2019), 20 applies to his case retroactively. In Ground Two, he alleges that his attorneys were 21 ineffective in reviewing and explaining the plea agreement. In Ground Three, Movant 22 asserts a Fourth Amendment violation. In Ground Four, he alleges that his double 23 jeopardy rights were violated. In Ground Five, Movant claims his attorney failed to meet 24 with him before filing a response regarding the pretrial sentencing report and counsel 25 failed to address inaccuracies in the report. In Ground Six, Petitioner asserts a violation 26 under Brady v. Maryland, 373 U.S. 83 (1963). In Ground Seven, Movant claims that 27 counsel rendered ineffective assistance concerning restoration of his right to possess 28 firearms. In Ground Eight, he alleges that agents obtained warrants based upon false 1 statements. In Ground Nine, he alleges counsel repeatedly failed to file motions pursuant 2 to Franks v. Delaware, 438 U.S. 154 (1978). 3 The Movant relies on new law, Rehaif v. United States, 139 S.Ct. 2191 (2019), 4 which was decided after his appeal. The Supreme Court held that in a firearm case 5 prosecuted under 18 U.S.C. § 922(g), the Government must prove defendant’s knowledge 6 of the circumstance that causes him to be prohibited from possessing firearms and 7 ammunition. Id. at 2200. Movant argues that Rehaif supports his defense at trial that he 8 did not know he was illegally in possession of a firearm because he believed his right to 9 bear arms had been reinstated by a state court order. The Court rejected this argument 10 because the state court issued this Order on December 14, 2006, prior to the 2008 federal 11 felony conviction relied on by the Government as the predicate felony element for the § 12 922(g) offense. Additionally, the Court reviewed the transcript and minute entry from the 13 state proceeding and found that Judge Bryson told the defendant he had no jurisdiction to 14 restore Defendant’s right to possess guns pursuant to federal law. 15 In the context of the Movant’s argument that he didn’t know he could not legally 16 possess a firearm, Rehaif does not aid him. The Supreme Court did not change the generally 17 accepted rule that a mistake of law is not a defense to criminal activity. It remains true that 18 the Government need only prove that the Defendant consciously possessed what he knew 19 to be a firearm, and there is no requirement to know his possession is unlawful. Similarly, 20 under Rehaif, the Government need only prove that the Defendant knew he was a member 21 of one of the nine categories of individuals prohibited from receiving, shipping, 22 transporting, or possessing firearms and ammunition, including being a convicted felon. 18 23 U.S.C. § 922(g)(1). Prior to Rehaif the Government only had to prove knowledge related 24 to possessing the firearm, not knowledge of the felony conviction, which requires a 25 showing by uncontroverted evidence that a defendant was sentenced to more than a year 26 in prison. 27 Here, the parties stipulated that the defendant had previously been convicted of a 28 crime punishable by imprisonment for a term exceeding one year, i.e., a felony. The 1 Government did not prove the Defendant knew he was a convicted felon. As explained in 2 the Response to the 2255 habeas Petition, the Movant cannot show that refusing to correct 3 this error would result in a miscarriage of justice because on a retrial, the Government 4 could show that he was sentenced to 24 months in prison and served at least 21 months in 5 prison for these convictions. (Response (Doc. 4) at 8 (citing Presentence Report ¶ 37)). 6 There is, therefore, undisputable evidence that on retrial would establish the Movant knew 7 he was a convicted felon because he actually served a sentence for a felony conviction. 8 Johnson, 963 F.3d at 851-54; United States v. Benamor, 937 F.3d 1182, 1185-86 (9th Cir. 9 2019)). 10 Movant’s assertion of an entrapment by estoppel defense is not aided by Rehaif 11 because it requires reliance “‘either on a federal government official empowered to render 12 the claimed erroneous advice, or on an authorized agent of the federal government who, 13 like a licensed firearms dealer, has been granted the authority to render such advice.’” 14 (Response (Doc. 4) at 9 (quoting United States v. Brebner, 951 F.2d 1017, 1026-27 (9th 15 Cir. 1991)). Movant simply never alleged or presented evidence of any such reliance. 16 The Government is correct that Ground One, which relied on Rehaif, and Ground 17 Seven, to the extent it relied on Rehaif, fail on the merits. For the reasons explained in the 18 Response, Grounds Two, Four, Five, Six, Eight, and Nine are procedurally precluded 19 because Movant could have raised these claims but failed to raise them on direct appeal. 20 (Response (Doc. 4) at 2-3.) Grounds Three and Seven are procedurally precluded because 21 they were actually resolved on direct appeal and resolved against him. Id. at 4-5. 22 Grounds Two, Five, and Nine involve allegations of ineffective assistance of 23 counsel. The Court takes the easier avenue for disposition of these claims, which is to deny 24 them because the Movant fails to identify prejudice flowing from them. See Strickland v. 25 Washington, 466 U.S. 668, 687-88, 692 (1984) (describing two prong test: 1) counsel’s 26 representation fell below an objective standard of reasonableness and 2) counsel’s deficient 27 performance prejudiced the defendant). Movant alleges only errors. Ground Two alleges 28 his attorneys failed to: listen to him, bring a valid argument regarding his desired defense, 1 submit exculpatory phone records, conduct pretrial investigation or request exculpatory 2 evidence, research applicable definitions, object to the sentencing guideline calculations, 3 reschedule a pretrial hearing when he was injured in the holding cell, call exculpatory 4 witnesses, and inform him of the terms of the plea offer. In Ground Five, he alleges his 5 attorney at sentencing failed to meet with him about the Presentence Report and did not 6 correct an error in his criminal history category. In addition to utterly failing to explain 7 how these errors caused prejudice, the record reflects that a Franks hearing was held. To 8 show prejudice, the Movant must show that there is a reasonable probability that, but for 9 counsel’s unprofessional errors, the result of the proceeding would have been different, 10 i..e., the alleged errors are sufficient to undermine confidence in the outcome. (Response 11 (Doc. 4) at 6 (citations omitted). He has not even asserted as much. 12 In addition to being procedurally barred, the ineffective assistance of counsel claims 13 raised in Grounds Two, Five, and Nine fail on the merits. 14 Conclusion 15 The Movant’s allegations in the habeas Petition, viewed against the record, do not 16 state a claim for relief and summary dismissal, without a hearing, is warranted. 17 Accordingly, 18 IT IS ORDERED that the Motion to Modify and Correct Sentence Pursuant to 28 19 U.S.C. § 2255 (Doc. 341) filed in CR 16-1061 TUC DCB and (Doc. 1) filed in CV 20-268 20 TUC DCB is DENIED. 21 IT IS FURTHER ORDERED that Civil case number CV 020-268 TUC-DCB is 22 DISMISSED with prejudice, and the Clerk of the Court shall enter judgment accordingly. 23 IT IS FURTHER ORDERED, pursuant to Rule 11(a) of the Rules Governing 24 Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 25 certificate of appealability because reasonable jurists would not find the Court’s procedural 26 ///// 27 ///// 28 ///// rulings debatable and because reasonable jurists would not find the Court’s assessment of || the merits of the alleged constitutional claims debatable or wrong. Slack v. McDaniel, 529 || U.S. 473, 484 (2000). 4 Dated this 3rd day of November, 2020. 5 6 ’ Day 8 United ct Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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