Opinion
1:20-cv-211
09-06-2022
BENJAMIN R. ROSS, Petitioner v. WARDEN TRATE, Respondent
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RICHARD A. LANZILO, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Benjamin R. Ross (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed.
Petitioner is incarcerated at FCI-McKean, a federal correctional institution located within the territorial boundaries of the Western District of Pennsylvania. The Warden of FCI-McKean is the Respondent in this action.
II. Report
A. Background
On April 22, 2014, a grand jury in the United States District Court for the Northern District of Ohio returned an indictment charging Petitioner with one count of being a Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(1). ECF No. 9-3;. United States v. Ross, Case No. 4:14-CR-148 (N.D. Ohio). Petitioner pled guilty, and on November 6, 2015, the trial court sentenced him to a term of 57 months in prison and three years \ of supervised release. ECF Nos. 9-2, 9-4. Petitioner was released on March 22, 2019.
On June 4, 2019, a grand jury in the Northern District of Ohio indicted Petitioner on drug trafficking charges following a traffic stop in Youngstown, Ohio. ECF No. 9-6; United States v. Ross, Case No. 1:19-CR-351 (N.D. Ohio). Petitioner pled guilty and was sentenced to 120 months imprisonment. Because of the new charges, Petitioner was also found to have violated the terms of his supervised release in Case No. 4:14-CR-218. On February 10, 2020, he was sentenced to an additional term of 24 months to run consecutively to the 120 months in Case No. 1:19-CR-351.
The instant petition ensued. In his petition, Petitioner maintains that he is actually innocent of being a felon in possession of a firearm based on the United States Supreme Court's decision in Rehaif v. United States, - U.S. -, 139 S.Ct. 2191 (2019), which held that to convict a defendant under 18 U.S.C. § 922(g), the Government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status [as, inter alia, a felon] when he possessed it.” 139 S.Ct. at 2194. As explained by Petitioner:
Petitioner entered into an open plea without the benefit of a pleaagreement because his counsel advised him that the government only needed to prove that he was previously convicted of a felony. During the change of plea hearing the court informed Petitioner of the same. The elements of § 922(g)(1) were never properly explained to Petitioner by his lawyer or the court, making the guilty plea invalid.ECF No. 4 at 5. Because the knowledge-of-status element was not included in his indictment or explained during his plea colloquy, Petitioner concludes that his plea was not entered into knowingly or voluntarily. Id. at 6.
After conducting an initial review of the petition, the Court held this matter in abeyance pending the outcome of the government's appeal in a case addressing a similar Rehaif claim, United States v. Nasir, 982 F.3d 144, 150 (3d Cir. 2020). In Nasir, the Court relied on Rehaif to initially overturn a petitioner's firearms conviction based on the absence of any evidence in the trial record to support the knowledge of status element of § 922(g)(1). Shortly thereafter, the United States Supreme Court issued a decision in Greer v. United States, ___ U.S. ___, 141 S.Ct. 2090 (2021), clarifying that a reviewing court “can examine relevant reliable information from the entire record[,] including information contained in a pre-sentence report,” in determining whether to grant relief pursuant to Rehaif. Id. at 2098. Based on the decision in Greer, the Supreme Court vacated the Third Circuit's decision in Nasir. See United States v. Nasir, 17 F.4th459, 461 n. 1 (3d Cir. 2021) (noting, on remand, that Greer was “contrary to the view” the Third Circuit had previously espoused in Nasir).
With Greer and Nasir resolved, Petitioner's Rehaif argument is now ripe for review. For the reasons discussed below, his petition must be denied.
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Discussion
Before examining the merits of Petitioner's Rahaif claim, the Court must determine whether the claim is cognizable in a § 2241 action. For federal prisoners, “[t]he ‘core' habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid.” McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010); see also Cardona v. Bledsoe, 681 F.3d 533, 535-38 (3d Cir. 2012). “Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates.” Cardona, 681 F.3d at 535. Section 2255 motions must be filed in the federal district court that imposed the conviction and sentence the prisoner is challenging. 28 U.SC. § 2255(a). In contrast, a habeas corpus action pursuant to § 2241 must be brought in the custodial court - i.e., the federal district court in the district in which the prisoner is incarcerated. Bruce v. Warden Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017).
Section 2241 petitions must be filed in the district in which the prisoner is incarcerated because:
[t]he prisoner must direct his [§ 2241] petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050,29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484,494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement...the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute's jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian.”).Bruce, 868 F.3d at 178.
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners may challenge the validity of their conviction or sentence on collateral review. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (emphasis added). Bruce, 868 F.3d at 178 (“[A] federal prisoner's first (and most often only) route for collateral review of his conviction or sentence is under § 2255.”). In contrast, § 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Cardona, 681 F.3d at 535 (internal quotations and citations omitted) (emphasis added); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining “execution of' the sentence to mean the manner in which it is “put into effect” or “carr[ied] out”). The interplay of these two statutes ordinarily prohibits a court from entertaining a § 2241 petition filed by a federal prisoner challenging the validity of his underlying conviction or sentence.
There is, however, one important statutory exception: where it “appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). To date, the Court of Appeals for the Third Circuit has applied this provision, commonly referred to as § 2255's “savings clause,” in only one circumstance: when a prisoner “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). See also, Bruce, 868 F.3d at 179 (“[I]n the unusual situation where an intervening change in statutory interpretation runs the risk that an individual was convicted of conduct that is not a crime, and that change in the law applies retroactively in cases on collateral review,” a petitioner “may seek another round of post-conviction review under § 2241.”).
An inmate must satisfy two conditions to take advantage of § 2255's savings clause under Dorsainvil. “First, a prisoner must assert a claim of actual innocence on the theory that he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision and our own precedent construing an intervening Supreme Court decision - in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review.” Bruce, 868 F.3d at 180 (internal quotations omitted). “[S]econd, the prisoner must be ‘otherwise barred from challenging the legality of the conviction under § 2255.'” Id. (quoting U.S. v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)).
Petitioner's Rehaif claim appears to fall squarely within the scope of the Dorsenvail savings clause. Because Rehaif represents an intervening decision of statutory construction issued by the United States Supreme Court, and because Petitioner is alleging that he is being detained for conduct that has been rendered non-criminal by that decision, this Court has jurisdiction to consider his claim. See Richardson y. Warden of USP-Allenwood, 2021 WL 5038960, at *4 (M.D. Pa. Oct. 29, 2021) (“We find that Richardson may bring his knowledge of status claim pursuant to the Third Circuit's holding in Dorsainvil. . . because Rehaif could negate his conviction for unlawful possession of a firearm and Richardson had already filed a § 2255 motion by the time Rehaif was decided in 2019”); In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (holding that Rehaif “did not set forth a new rule of constitutional law as contemplated by § 2255(h)” and, thus, a second or successive § 2255 based on Rehaif would not be permitted).
Overcoming this jurisdictional hurdle, however, is only the first step towards obtaining relief. To ultimately prevail on his claim of actual innocence, Petitioner “must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bruce, 868 F.3d 184 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). In this context, “actual innocence” means “factual innocence” rather than mere legal insufficiency. Id. A court assessing an actual innocence claim is not bound by the rules of admissibility governing trials, but “must instead make its own determination in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Id. (citations and quotation marks omitted).
Applying this standard to Petitioner's Rehaif claim, he “has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a ‘reasonable probability' that he would not have pled guilty.” Greer, 141 S.Ct. at 2097. As several courts have observed, “Petitioners seeking relief based on Rehaif's knowledge of status requirement face a high bar because ‘convicted felons ordinarily know that they are convicted felons.'” Richardson, 2021 WL 5038960, at *4 (quoting Greer, 141 S.Ct. at 2097). In other words, “absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.” Id.
A careful examination of Greer is instructive. In Greer, the Supreme Court addressed two separate appeals: one involving a defendant who had pled guilty to a § 922(g) firearms charge without being advised that, “if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearm,” and one involving a defendant who had been convicted following a trial in which the district court did not give a jury instruction “requiring the jury to find that Greer knew he was a felon when he possessed the firearm.” Id. at 2095-96. Relying on Rehaif, each defendant argued that the trial court's failure to address the knowledge of status element amounted to reversible error. Id.
The Supreme Court began its analysis by acknowledging that the trial court in each underlying case had committed plain error by failing to address the status element of the statute. Id. at 2097. The Court held, however, that neither defendant could demonstrate a “reasonable probability” that he would have been acquitted in the absence of those errors:
To obtain plain-error relief, a defendant must establish the following: “First, there must be an error. Second, the error must be plain. Third, the error must affect substantial rights, which generally means that there must be a reasonable probability that, but for the error, the outcome of the proceeding would have been different. If those three requirements are met, an appellate court may grant relief if it concludes that the error had a serious effect on the fairness, integrity or public reputation of judicial proceedings.” Greer, 141 S.Ct. at 2097 (internal quotations, quoting sources, and italics omitted).
In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily knows he is a felon. “Felony status is simply not the kind of thing that one forgets.” 963 F.3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh'g en banc). That simple truth is not lost upon juries. Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon. A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty. In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different.
Here, Greer and Gary have not carried the burden of showing that the Rehaif errors in their respective cases affected their substantial rights. Before their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms. Therefore, Greer cannot show that, but for the Rehaif error in the jury instructions, there is a reasonable probability that a jury would have acquitted him. And Gary likewise cannot show that, but for the Rehaif error during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty.Id. at 2097-98.
The holding in Greer forecloses relief in the instant case. As in Greer, Petitioner was convicted of at least one crime punishable by one year or more of imprisonment - a 2011 conviction for gross sexual imposition which resulted in a prison sentence of 12 months - prior to the felon-in-possession conviction challenged in his petition. This alone represents “substantial evidence” that Petitioner knexy he was a felon. Greer, 141 S.Ct. at 2098. This evidence is bolstered by the fact that Petitioner was sentenced to twelve months incarceration following his prior conviction. Id. (instructing reviewing courts to examine “relevant and reliable information from the entire record-including information contained in a pre-sentence report;”). See also United States v. Penn, 2022 WL 395058, at *4 (W.D. Pa. Feb. 9, 2022) (knowledge of status argument was “objectively meritless” because “Defendant was convicted of numerous crimes that were punishable by more than 1 year of imprisonment and served a term of incarceration in excess of 1 year before the date he was found in unlawful possession of a firearm”); United States v. Cann, 2021 WL 5987258, at *6 (E.D. Pa. Dec. 17, 2021) (knowledge of status argument failed because defendant “was actually a convicted felon many times over, and spent over two years in prison before he possessed the firearm”); United States v. Rodriguez, 2021 WL 601510, at *9 (E.D. Pa. Feb. 16, 2021) (holding that because Defendant “served almost four years in prison on [prior] convictions,” “there [was] no reasonable probability that defendant would not have pled guilty”). Finally, Plaintiff “has not produced other evidence showing how he could somehow prove that he did not know about his felony status.” Penn, 2022 WL 395058, at *4. See also Greer, 141 S.Ct. at 2098 (“Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms.”); United States v. Jacobs, 2022 WL 2070284, at *7 (M.D. Pa. June 8, 2022) (denying Rehaif claim because petitioner “[did not] posit-much less proffer any evidence-that he was subjectively unaware of his status at the time of his arrest in the instant matter.”).
See ECF No. 9-1.
In short, Petitioner has failed to establish that, had the district court correctly advised him as to the mens rea element of a felon-in-possession offense, there is a reasonable probability that he would not have pled guilty. Greer, 141 S.Ct. at 2097. Accordingly, his petition is without merit and must be dismissed.
III. Conclusion, For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice.
Because “[federal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement,” the Court need not make a certificate of appealability determination in this matter. Williams v. McKean, 2019 WL 1118057, at *5 n. 6 (W.D. Pa. Mar. 11,2019) (citing United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)); 28 U.S.C. § 2253(c)(1)(B).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).