Weatherspoon v. United States

• Court: District Court, D. Nevada
• Decided: May 24, 2021
• Docket: 2:20-cv-01133
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

UNITED STATES OF AMERICA, Case No. 2:16-cr-00377-HDM-CWH 6 Case No. 2:20-cv-01133-HDM Plaintiff, 7 v. ORDER 8 TAJH DION WEATHERSPOON,

9 Defendant.

10 Before the court is defendant Tajh Dion Weatherspoon’s motion 11 to vacate pursuant to 28 U.S.C. § 2255 (ECF No. 103). The 12 government has responded (ECF No. 105), and Weatherspoon has 13 replied (ECF No. 106). 14 I. Factual and Procedural Background 15 On December 28, 2016, Weatherspoon was charged by way of 16 indictment with one count of felon in possession of a firearm in 17 violation of 18 U.S.C. § 922(g). (ECF No. 1). A superseding 18 indictment later added a second count of felon in possession of a 19 firearm. (ECF No. 35). Weatherspoon went to trial on Count One of 20 the indictment and was found guilty. (ECF No. 63). Following the 21 guilty verdict, Weatherspoon entered a plea of guilty to Count of 22 Two. (ECF No. 67). The court thereafter sentenced Weatherspoon to 23 120-month concurrent prison terms for each count. (ECF Nos. 80 & 24 81). 25 Section 922(g) prohibits the possession of a firearm by 26 several categories of persons, including any person who has been 27 convicted in any court of a crime punishable by a term of more 28 1 than one year in prison. 18 U.S.C. § 922(g)(1). At the time of his 2 conviction, Weatherspoon had two prior felony convictions: (1) 3 attempted burglary; and (2) ex-felon in possession of a firearm. 4 When Weatherspoon was charged and convicted in this case, the 5 government was not required to prove that he knew he was a felon. 6 United States v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003). But 7 after Weatherspoon was sentenced, the U.S. Supreme Court concluded 8 that a defendant may be convicted under § 922(g) only if the 9 government proves that the defendant “knew he belonged to the 10 relevant category of persons barred from possessing a firearm.” 11 Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). On the basis 12 of Rehaif and the government’s failure to charge his knowledge of 13 status, Weatherspoon now moves to vacate his conviction. 14 II. Standard 15 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 16 vacate, set aside, or correct his sentence if: (1) the sentence 17 was imposed in violation of the Constitution or laws of the United 18 States; (2) the court was without jurisdiction to impose the 19 sentence; (3) the sentence was in excess of the maximum authorized 20 by law; or (4) the sentence is otherwise subject to collateral 21 attack. Id. § 2255(a). 22 III. Analysis 23 Weatherspoon argues that the omission of the Rehaif element 24 from the indictment violated his Fifth Amendment rights 25 guaranteeing that a grand jury find probable cause to support all 26 the necessary elements of the crime and to not be tried on a 27 fatally defective indictment and his Sixth Amendment right to 28 1 notice of the charges. He alleges that the defective indictment 2 also deprived the court of jurisdiction. Further, Weatherspoon 3 asserts that his plea was not knowing and voluntary due to the 4 absence of the Rehaif element and that his trial conviction 5 violated his due process rights because the jury instructions 6 lacked the Rehaif element, and the government did not prove, nor 7 did the jury find, the Rehaif element was satisfied. 8 A. Conviction by Guilty Plea 9 Weatherspoon pleaded guilty to Count Two without the benefit 10 of a plea agreement. The plea was not conditional, and “[a]n 11 unconditional guilty plea waives all non-jurisdictional defenses 12 and cures all antecedent constitutional defects, allowing only an 13 attack on the voluntary and intelligent character of the plea.” 14 United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 2013); see 15 also Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States 16 v. Espinoza, 816 Fed. App’x 82, 85 (9th Cir. June 1, 2020) 17 (unpublished disposition) (unconditional plea waiver precludes all 18 Fifth and Sixth Amendment claims except to the extent they contest 19 the court’s jurisdiction or the voluntariness of the plea).2 Thus, 20 as to Count Two, Weatherspoon’s plea bars his claims of 21 constitutional deprivations that occurred prior to entry of the 22

23 1 Although Weatherspoon’s motion also alleges violation of his Sixth Amendment right to effective assistance of counsel, 24 Weatherspoon clarifies in his reply that he alleges deprivation of counsel only to show the prejudice that resulted from the defect 25 in the indictment and that it is not a standalone claim. 26 2 The court agrees with the well-reasoned opinions of several 27 c co hu ar lt ls e nt gh ea t w an io vn ee r o af p pt lh ie e se x ic ne p tt hi io sn s c au sn ed .e r S eT eo ,l l ee .t gt . ,t o U nt ih te e dc o Sl tl aa tt ee sr a vl . 28 Kelbch, 2021 WL 96242, at *2 (D. Nev. Jan. 7, 2021). 1 plea except to the extent the claims allege the court lacked 2 jurisdiction or that his plea was not knowing and voluntary. 3 As to Weatherspoon’s jurisdictional argument, it is without 4 merit. The omission of an element from the indictment does not 5 affect the court’s jurisdiction. United States v. Cotton, 535 U.S. 6 625, 630 (2002); United States v. Ratigan, 351 F.3d 957, 962–63 7 (9th Cir. 2003); see also United States v. Jackson, 2020 WL 8 7624842, at *1 (9th Cir. Dec. 22, 2020) (unpublished disposition) 9 (rejecting the defendant’s argument that omission of the Rehaif 10 element deprived the district court of jurisdiction); United 11 States v. Burleson, 2020 WL 4218317, at *1 (July 23, 2020) 12 (unpublished disposition) (same); Espinoza, 2020 WL 2844542, at *1 13 (same); United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 14 2020); United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); 15 United States v. Balde, 943 F.3d 73, 88-92 (2d Cir. 2019); United 16 States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). Cf. United 17 States v. Singh, 979 F.3d 697, 730 (9th Cir. 2020) (on direct 18 appeal, reviewing omission of Rehaif element from indictment for 19 plain error). The indictment otherwise sufficiently states a 20 cognizable criminal offense: possession of a firearm by a convicted 21 felon in violation of 18 U.S.C. § 922(g)(1). 22 Weatherspoon’s claims that the court lacked jurisdiction and 23 that the indictment was deficient are moreover procedurally 24 defaulted. “If a criminal defendant could have raised a claim of 25 error on direct appeal but nonetheless failed to do so, he must 26 demonstrate” either “cause excusing his procedural default, and 27 actual prejudice resulting from the claim of error,” United States 28 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), or that he is 1 actually innocent of the offense, , 523 2 U.S. 614, 622 (1998). “[C]ause for a procedural default on appeal 3 ordinarily requires a showing of some external impediment 4 preventing counsel from constructing or raising the claim.” Murray 5 v. Carrier, 477 U.S. 478, 492 (1986). Actual prejudice “requires 6 the petitioner to establish ‘not merely that the errors at ... 7 trial created a possibility of prejudice, but that they worked to 8 his actual and substantial disadvantage, infecting his entire 9 trial with error of constitutional dimensions.’” Bradford v. 10 Davis, 923 F.3d 599, 613 (9th Cir. 2019) (internal citation 11 omitted). 12 Weatherspoon could have raised his claims regarding the 13 indictment on direct appeal, but he did not do so. Those claims 14 are therefore procedurally defaulted. It is unnecessary to resolve 15 whether Weatherspoon can demonstrate cause for the default, 16 because even if he could, he cannot demonstrate prejudice.3 17 First, Weatherspoon admitted at his change of plea that he 18 knew it was unlawful for him to possess the firearm and that at 19 the time he possessed the firearm he had been previously convicted 20 of a felony. The court is not persuaded by Weatherspoon’s argument 21 that he never admitted he knew at the time he possessed the firearm 22 that it was unlawful for him to do so. Nevertheless, even if he 23 had not made this direct admission, Weatherspoon’s criminal record 24 forecloses any argument that he was unaware of his status as a 25 convicted felon at the time he possessed the firearms in question. 26 Weatherspoon committed the offenses in this case after receiving 27 a 12- to 36-month sentence for attempted burglary and a 12- to 32-

28 3 Weatherspoon does not argue actual innocence. 1 month sentence for ex-felon in possession of a firearm. (PSR ¶¶ 43 2 & 52). As such, there is no reasonable possibility Weatherspoon 3 did not know he had been convicted of a crime punishable by more 4 than a year in prison. He cannot therefore show that the results 5 of the proceedings would have been any different – i.e., that he 6 would not have entered a plea of guilty to Count Two and would not 7 have been convicted under Count One -- had the indictment contained 8 the Rehaif element. 9 Weatherspoon argues that he suffered prejudice because he was 10 convicted by a court lacking jurisdiction. For the reasons 11 previously discussed, this argument is without merit because the 12 errors Weatherspoon complains of did not deprive the court of 13 jurisdiction. Weatherspoon additionally argues that he was 14 prejudiced because the defect deprived him of effective assistance 15 of counsel. For the reasons already discussed, he cannot show a 16 reasonable probability of a different outcome had the Rehaif 17 element been included in the indictment, and thus he has not 18 established prejudice on this basis. 19 Weatherspoon alternatively argues that he is not required to 20 demonstrate prejudice to obtain relief because the omission is 21 structural error. 22 “[C]ertain errors, termed structural errors, might affect 23 substantial rights regardless of their actual impact on an 24 appellant’s trial.” United States v. Marcus, 560 U.S. 258, 263 25 (2010) (internal punctuation and citations omitted). Thus, 26 structural error “warrant[s] habeas relief without a showing of 27 specific prejudice.” United States v. Withers, 638 F.3d 1055, 1063– 28 64 (9th Cir. 2011). “But structural errors are a very limited class 1 of errors that affect the framework within which the trial 2 proceeds, such that it is often difficult to assess the effect of 3 the error.” Marcus, 560 U.S. at 263 (internal punctuation and 4 citations omitted). Cases in which the Supreme Court has found 5 structural error include total deprivation of counsel, lack of an 6 impartial trial judge, violation of the right to a public trial 7 and an erroneous reasonable-doubt instruction. See id. (discussing 8 cases). In contrast, errors that have been found to be non- 9 structural include where the court instructed on an invalid 10 alternative theory of guilt, gave an instruction omitting an 11 element of the offense, or erroneously instructed the jury on an 12 element. Id. at 264 (discussing cases). 13 The Ninth Circuit has not yet addressed in a published opinion 14 whether omission of the Rehaif element from the indictment is 15 structural error. But it has held that the error is not structural 16 in at least one unpublished decision. See United States v. Jackson, 17 2020 WL 7624842, at *1 n.1 (9th Cir. Dec. 22, 2020). And the First, 18 Third, Fifth, Seventh, Eighth, and Tenth Circuits have concluded 19 that Rehaif errors are not structural. United States v. Patrone, 20 985 F.3d 81, 86 (1st Cir. 2021); United States v. Nasir, 982 F.3d. 21 144, 171 n.30 (3d Cir. Dec. 1, 2020); United States v. Lavalais, 22 960 F.3d 180, 187 (5th Cir. 2020); United States v. Payne, 964 23 F.3d 652, 657 (7th Cir. 2020); United United States v. Coleman, 24 961 F.3d 1024, 1030 (8th Cir. 2020); States v. Trujillo, 960 F.3d 25 1196, 1207 (10th Cir. 2020); see also United States v. Hill, 2020 26 WL 7258551, at *2 n.3 (3d Cir. Dec. 10, 2020) (unpublished 27 disposition); United States v. Watson, 820 Fed. App’x 397, 400 28 (6th Cir. 2020) (unpublished disposition); United States v. Brown, 1 2021 WL 1955859, at *6 (11th Cir. May 17, 2021) (unpublished 2 disposition).4 This court agrees with the well-reasoned opinions 3 of these courts and concludes that omission of the Rehaif element 4 from the indictment does not fall within the limited class of 5 errors the Supreme Court has found to be structural, at least where 6 the error has not been timely challenged.5 7 Weatherspoon’s claim that his guilty plea violated his due 8 process rights because it was not knowing and voluntary is likewise 9 without merit.6 Weatherspoon asserts that his plea was not knowing 10 and voluntary because neither he, his counsel nor the court 11 understood all the elements of the offense to which he was 12 pleading. A claim of a due process violation is subject to the 13 harmless error standard of Brecht v. Abrahamson, 507 U.S. 619, 623 14 (1993). See United States v. Montalvo, 331 F.3d 1052, 1058 (9th 15 Cir. 2003); see also United States v. Session, 2020 WL 6381353, at 16 *2 (N.D. Cal. Oct. 30, 2020). Thus, even assuming a defendant 17 establishes a due process violation, he is entitled to relief only 18

19 4 The Fourth Circuit has reached the opposite conclusion. United States v. Gary, 954 F.3d 194, 206 (4th Cir. 2020), cert. granted 20 United States v. Gary, 141 S. Ct. 974 (2021).

21 5 While there is case law holding that defects in the indictment are structural error, those cases apply only where the claim is 22 timely raised. See, e.g., United States v. Du Bo, 186 F.3d 1177, 1179 & 1180 n.3 (9th Cir. 1999) (“We hold that, if properly 23 challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor 24 or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment. . . . Untimely 25 challenges to the sufficiency of an indictment are reviewed under a more liberal standard.”). Weatherspoon’s claim here was not 26 timely raised.

27 6 Weatherspoon correctly argues that the government’s procedural default argument was not extended to this claim and is therefore 28 waived. 1 if the error had a “substantial and injurious effect” on the 2 proceedings. Brecht, 507 U.S. at 623. In this context, the question 3 is whether there is a reasonable probability that Weatherspoon 4 would have declined to enter a guilty plea had he been aware the 5 government was required to prove the Rehaif element. See United 6 States v. Flynn, 316 Fed. App’x 658, 659–60 (9th Cir. 2009) 7 (unpublished disposition). Cf. United States v. Espinoza, 2020 WL 8 2844542, at *1 (9th Cir. 2020). For the reasons identified above 9 with respect to the showing of prejudice, the court concludes 10 Weatherspoon cannot show that he would not have entered a plea had 11 he been aware of the Rehaif element. 12 Weatherspoon asserts that this error was structural and that 13 a showing of prejudice is not required. The court does not agree 14 that such an error, at least in the context of this case, amounts 15 to structural error, and therefore finds Weatherspoon’s argument 16 in this respect to be without merit. See e.g., Ibarra v. United 17 States, 2020 WL 7385713, at *6 (W.D. Wash. Dec. 16, 2020). 18 B. Conviction by Jury Verdict 19 Weatherspoon argues that his conviction under Count One 20 violates his due process because the government did not prove, and 21 the court did not instruct the jury on or require the jury to find, 22 the Rehaif element. This claim, like Weatherspoon’s attack on his 23 guilty plea, is subject to the harmless error standard and thus, 24 Weatherspoon is entitled to habeas relief only if the error has a 25 “substantial and injurious effect or influence in determining the 26 jury’s verdict.” Brecht, 507 U.S. at 627, 637; see also United 27 States v. Rodrigues, 678 F.3d 693, 695 (9th Cir. 2012) 28 (instructional error subject to the Brecht harmless error 1 standard). For the reasons set forth above, Weatherspoon has not 2 made this showing. Not only did Weatherspoon admit to this court 3 that he was aware of his felon status, but he had been twice 4 convicted and sentenced to prison terms exceeding 12 months. Thus, 5 there is no reasonable probability the outcome of the trial would 6 have been different had the jury been instructed on, and the 7 government required to prove, the Rehaif element. 8 Defendant asserts omission of the element from the jury 9 instructions is structural error, relying on United States v. 10 Becerra, 939 F.3d 995, 1006 (9th Cir. 2019). Weatherspoon’s 11 reliance on Becerra is unavailing. In Becerra, the Ninth Circuit 12 held that the complete failure to orally instruct the jury amounted 13 to structural error. That is not the error alleged here. In fact, 14 Becerra explicitly recognized that “[o]mission of a single element 15 of the charged offense from the jury instructions is error, but 16 not structural error.” Id. at 1003. Cf. United States v. Gear, 17 2021 WL 163090 (9th Cir. Jan. 19, 2021) (reviewing Rehaif error in 18 jury instructions for plain error). The error is not structural, 19 and Weatherspoon’s failure to demonstrate prejudice defeats this 20 due process claim. 21 Weatherspoon also asserts that the prosecutor’s statement in 22 closing that the jury was not required to find Weatherspoon knew 23 of his felon status violated his rights. However, like the jury 24 instruction error, prosecutor misconduct is also subject to the 25 harmless error standard. Darden v. Wainwright, 477 U.S. 168, 181- 26 83 (1986). For the reasons already set forth, Weatherspoon cannot 27 demonstrate a substantial and injurious effect on the jury’s 28 verdict resulting from the prosecutor’s statement. 1 C. The Rehaif Element 2 Finally, Weatherspoon argues that Rehaif requires’ the 3]| government to prove not only that he knew that he was a convicted 4|| felon but also that he knew he was barred from possessing firearms. 5|| Notwithstanding the fact that Weatherspoon admitted to the court 6|| that he knew he was barred from possessing a firearm and his 7|| criminal history amply supports an inference that he was aware of his felon status, Weatherspoon’s legal argument is also without merit. United States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020) 10 (“[The defendant] contends that Rehaif requires the Government to 11]| prove he knew not only his status, but also that he knew his status 12|| prohibited him from owning a firearm. But this interpretation is 13|| not supported by Rehaif ... .). 14|| Iv. Conclusion 15 Accordingly, because the claims raised in Weatherspoon’s 16]| § 2255 motion are waived, procedurally defaulted and/or without merit, IT IS THEREFORE ORDERED that the motion to vacate, set aside 18|| or correct sentence (ECF No. 103) is hereby DENIED. 19 IT IS FURTHER ORDERED that Weatherspoon is DENIED a 20|| certificate of appealability, as jurists of reason would not find the court’s denial of the motion to be debatable or wrong. 22 The Clerk of Court shall enter final judgment accordingly. 23 IT IS SO ORDERED. 24 DATED: This 24th day of May, 2021. 25 96 urna 9 Ht 27 UNITED STATES DISTRICT JUDGE 28