Opinion
Case No. 17-cr-00089-PJH-1
10-30-2020
UNITED STATES OF AMERICA, Plaintiff, v. MAJOR ALEXANDER SESSION, III, Defendant.
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
Before the court is the represented motion by Major Alexander Session, III, to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Dkt. 34, 43. The court determines that the matter is suitable for decision without oral argument and deems the matter fully submitted on the papers. Having carefully considered the relevant legal authority, the parties' papers, and the record, the court DENIES Session's § 2255 motion for the reasons set forth below.
BACKGROUND
Session is currently serving a sentence imposed by this court. On February 16, 2017, a grand jury returned a single count indictment charging that Session, "having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, did knowingly possess (1) a firearm, namely, one Glock Model 33, .357 caliber, semi-automatic pistol bearing serial number DVR234; and (2) approximately 20 rounds of .357 caliber ammunition, all in and affecting interstate and foreign commerce, all in violation of Title 18, United States Code, Section 922(g)(1)." Dkt. 1.
This criminal case was related to a Form 12 petition for arrest warrant for offender under supervision submitted in case number CR 15-290-PJH-6 by the United States Probation Office. In CR 15-290, Session was indicted on an alleged conspiracy to violate airport security requirements and to distribute marijuana. On January 27, 2016, Session pleaded guilty pursuant to a plea agreement to Count Seven for Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. § 841(a)(1) and Count Eight for Entering an Airport Area in Violation of Security Requirements in violation of 49 U.S.C. § 46314(a). On May 11, 2016, the court sentenced Session in CR 15-290 to a term of imprisonment of 18 months on each count, to run concurrently, a term of supervised release of three years on each count, to be served concurrently, and a special assessment of $200. Session was released from custody and commenced his term of supervised release on September 2, 2016.
On December 31, 2016, Session was arrested by local police for Felon/Addict Possess/Own/Etc. Firearm; Prohibited Possession of Ammunition or Reload Ammunition; Carry Concealed Weapon in Vehicle, Carry Loaded Handgun: Not Registered Owner; Mfg/Sell/Possess/Etc. Large Capacity Magazine, Possess/Purchase Cocaine Base for Sale; Possess Marijuana/Hashish for Sale; and Possess Controlled Substance While Armed with Loaded Firearm. Dkt. 19 ("PSR"). Based on allegations that Session violated conditions of his supervised release in CR 15-290, the Probation Office submitted a Form 12 petition for issuance of a no bail arrest warrant, which the court issued on January 4, 2017. In the instant case, Session was indicted on February 16, 2017, on the sole count of being a felon in possession of a firearm and ammunition in violation of § 922(g)(1). On June 28, 2017, Session entered a change of plea as to the sole count of violating § 922(g)(1) pursuant to a written plea agreement. On November 15, 2017, the court sentenced Session to a term of 87 months imprisonment and three years of supervised release, to run concurrent with the revocation sentence in case number CR 15-290.
On August 1, 2019, Session filed a pro se motion seeking relief under Rehaif v. United States, 139 S. Ct. 2191 (2019), United States v. Davis, 139 U.S. 2319 (2019), and Shular v. United States, 139 S. Ct. 2773 (2019). The court appointed counsel for the limited purpose of petitioning the Court for relief in light of Rehaif. The court provided Session notice and opportunity under Castro v. United States, 540 U.S. 375, 377, 383 (2003) and United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2001), either to consent to have his initial pro per filing recharacterized as a motion pursuant to 28 U.S.C. § 2255, such that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, or to withdraw or amend the earlier filed pro per motion to file a single, all-inclusive § 2255 motion. Dkt. 37. As Session did not file a response to the Castro notice, the court further directed appointed counsel to communicate with Session about the Castro notice, and to file either a response to the Castro notice on defendant's behalf or a status report. Following counsel's filing of a status report, the court set a deadline for counsel to file an amended § 2255 motion, which was timely filed on March 10, 2020. The court issued an order to show cause on the Rehaif claims and dismissed the remaining pro per claims for failure to state a cognizable claim for relief pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. Dkt. 44. After the court granted a stipulated request for continuance of the filing deadlines, the government timely filed an opposition to the § 2255 motion ("Opp."), and appointed counsel filed a reply ("Reply"). The matter is submitted on the briefs.
LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside, or correct a sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A prisoner filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).
DISCUSSION
In Rehaif, the Supreme Court held that a defendant may be convicted under § 922(g) only if the government proves that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm." 139 S. Ct. at 2200. Session raises two claims under Rehaif: (1) that Session's guilty plea was involuntary because he was not questioned about his knowledge of his status as a felon as an element of the § 922(g)(1) offense, and (2) that the indictment charging Session with being a felon in possession in violation of 18 U.S.C. § 922(g)(1) did not allege the element that Session knew that he had been convicted of a prior felony conviction, as required by Rehaif.
Session asserts that Rehaif announced a new substantive rule of criminal law that applies retroactively on collateral review of criminal judgments. Mot. at 8 (citing Welch v. United States, 136 S. Ct. 1257, 1266 (2016)). As the government does not dispute whether the rule announced in Rehaif is substantive rather than procedural, the court assumes without deciding that Rehaif applies retroactively to Session's § 2255 claims. See United States v. Montalvo, 331 F.3d 1052, 1055-56 (9th Cir. 2003) (retroactively applying Supreme Court decision that announced a new substantive rule of criminal law that "decides the meaning of a criminal statute enacted by Congress") (quoting Bousley v. United States, 523 U.S. 614, 620 (1998)).
The government challenges the § 2255 motion as untimely because Session's conviction became final on December 5, 2017, and Session filed his pro se § 2255 motion more than a year later on August 1, 2019. Because Session filed his motion within one year of the issuance of Rehaif, which was decided June 21, 2019, the § 2255 claims are timely filed. See 28 U.S.C. § 2255(f)(3).
I. Standard of Review
As the court articulated in the Order to Show Cause, Session's Rehaif claims are subject to § 2255 review for harmless error under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993), and not the structural error standard proposed by Session. See United States v. Montalvo, 331 F.3d 1052, 1056-57 (9th Cir. 2003) ("The 'general rule' is that constitutional errors do not require reversal of a conviction, but are susceptible to harmless error review."). Under Brecht, 507 U.S. at 638, the court determines "In light of the record as a whole" whether the constitutional error "had substantial and injurious effect or influence" on the defendant. See Montalvo, 331 F.3d at 1058 (holding that "Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254"); Buckley v. Terhune, 441 F.3d 688, 698 (9th Cir. 2006) (holding that state court's error in interpreting plea agreement had a "substantial and injurious effect" on the petitioner because he was given a different sentence than he bargained for). As Session challenges his conviction on collateral review rather than on direct review, the plain error standard proposed by the government is not applicable to these § 2255 claims. Cf. United States v. Johnson, --- F.3d. ---, 2020 WL 6268027, at *3 (9th Cir.), as amended (9th Cir. Oct. 26, 2020) (applying plain error standard on appeal, following remand in light of Rehaif, to challenge not raised before the district court that the wrong legal standard was applied to 18 U.S.C. § 922(g)(1) charges at stipulated-facts bench trial).
II. Procedural Default
As a threshold matter, the government asserts that Session's Rehaif claims are procedurally defaulted because he failed to raise them on direct appeal. Opp. at 5-6. See United States v. Frady, 456 U.S. 152, 167-168 (1982) (holding that procedural default rules developed in the habeas corpus context apply in § 2255 cases); United States v. Braswell, 501 F.3d 1147, 1150 n.1 (9th Cir. 2007) (noting that "most claims are procedurally defaulted by both federal and state prisoners in habeas proceedings when not raised on direct appeal, absent a showing of cause and prejudice or actual innocence"). Because the court determines, below, that the Rehaif error did not have a "substantial and injurious effect or influence" on the outcome of this case, the court declines to resolve the issue whether Session can establish cause and prejudice to overcome procedural default. United States v. Yong, 926 F.3d 582, 590 (9th Cir. 2019) (declining to conduct cause and prejudice analysis where the claims presented in the § 2255 motion were "clearly not meritorious despite [the] asserted procedural bar") (quoting Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)). III. Rehaif Claims
A. Plea Colloquy Omitted Element of the Offense
Session asserts that the court failed to question him during his plea colloquy about his knowledge of his status as a felon as an element of the offense under Rehaif, and that the omission of this element of the § 922(g) offense resulted in an involuntary plea in violation of due process under Bousley v. United States, 523 U.S. 614, 618-19 (1998). The government concedes that the court's failure to inquire into Session's knowledge of his prohibited status as a felon or to confirm a factual basis for that element of the offense amounted to clear error under Rule 11, which requires the court to inform the defendant of, and determine that the defendant understands, "the nature of each charge to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G). Opp. at 8.
Because Session's claim that the Rule 11 error under Rehaif violated due process is subject to harmless error analysis, the court considers the parties' arguments as they weigh on the question whether the omission of Session's knowledge of his status as a felon from the plea colloquy resulted in "actual prejudice." Brecht, 507 U.S. at 637 (on habeas review, petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice'"). Rather than addressing the applicable harmless error standard, the government proceeds under a plain error standard of review, which requires the defendant to show that (1) there was an error, (2) the error is clear or obvious, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Johnson, 2020 WL 6268027 at *3 (citing United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019), cert. denied, 140 S.Ct. 818 (2020)). Though plain error review is not applicable here, the government's arguments that Session cannot establish "a reasonable probability that, but for the error, the outcome of the proceeding would have been different" are persuasive on the question whether the Rehaif error was harmless.
The government cites evidence in the record before this court, both in this case and in case number CR 15-290, that shows that Session was aware that he was a convicted felon. Not only did he plead guilty and enter a written plea agreement in CR 15-290 admitting to possession with intent to distribute marijuana, which the court advised him was subject to a maximum prison term of five years, and violating airport security, with a maximum 10-year prison term, but the court advised Session at the sentencing on those convictions that as a convicted felon, "you may not lawfully possess a firearm at any time for the rest of your life," which he acknowledged. Opp., Ex. A (CR 15-290 plea transcript) at 5-6; Ex. B (CR 15-290 sentencing transcript) at 37. Session was sentenced to a prison term of 18 months concurrent on both counts. Further, at the time that Session committed the § 922(g) offense, he was serving his term of supervised release for those federal felony convictions.
This uncontroverted evidence that Session was sentenced to a term of imprisonment of more than a year is sufficient to show that the Rule 11 error under Rehaif did not result in actual prejudice. In Johnson, the Ninth Circuit held that, on a Rehaif claim asserting that the court failed to require the government to prove that the defendant knew of his status as a convicted felon, "uncontroverted evidence that a defendant was sentenced to more than a year in prison . . . will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review," which requires a showing "that the district court's error seriously affects the fairness, integrity, or public reputation of judicial proceedings." 2020 WL 6268027 at *3, 5. The court in Johnson looked to the holding of United States v. Cotton, 535 U.S. 625 (2002), where the Supreme Court held that the failure in the indictment to allege drug quantity leading to enhanced penalties amounted to error under Apprendi v. New Jersey, 530 U.S. 466 (2000), but that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings in light of the "overwhelming and uncontroverted" evidence of the drug quantities involved in the drug trafficking conspiracy. 2020 WL 6268027 at *4 (citing Cotton, 535 U.S. at 632-34). In light of Cotton and other Supreme Court authority, the court in Johnson reasoned that the fourth prong of plain-error review "is designed, in part, to weed out cases in which correction of an unpreserved error would ultimately have no effect on the judgment." Johnson, 2020 WL 6268027 at *5. See Cotton, 535 U.S. at 633 ("Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base."). Applying the reasoning of Cotton and Johnson here, the Rule 11 error in failing to question Session whether he knew of his status as a convicted felon when he pleaded guilty to the § 922(g) violation did not have a "substantial and injurious effect or influence" on the outcome of this case in light of the uncontroverted evidence that Session was convicted of two federal felonies and sentenced to more than a year in prison by this court.
The government also demonstrates that if the government had been required to prove the element required under Rehaif that Session knew his prohibited status as a felon, the government would have proved defendant's knowledge by submitting (1) his signed plea agreement in CR 15-290, (2) his prior admissions at the change of plea and sentencing hearings, and (3) the judgment imposing a sentence of 18 months' imprisonment. Opp. at 9. At the change of plea hearing in this case, the government proffered evidence that if the § 922(g) prosecution had gone to trial, the government would have proved that prior to December 31, 2016, Session had been convicted of the federal offenses in case number CR 15-290, as well as a prior state felony conviction for possession of marijuana for sale in violation of California Health & Safety Code Section 11360 in Alameda Superior Court on or about October 28th, 2011. Opp., Ex. C (June 28, 2017 plea transcript) at 16-17. In light of this overwhelming evidence in the record, it is not reasonably probable that Session would have chosen to go to trial rather than entering the guilty plea and admitting knowledge of his prohibited status, but for the failure to question him about his knowledge of his prohibited status during the plea colloquy. Accordingly, the Rehaif error in failing to question Session about each element of the offense did not have a "substantial and injurious effect or influence" on the outcome.
Other than arguing that an involuntary guilty plea must be vacated under fundamental principles of due process, Session fails to demonstrate a reasonable probability that he would have taken a chance at trial and would not have pleaded guilty if he knew that the government was required to prove that he "knew he belonged to the relevant category of persons barred from possessing a firearm" under Rehaif, 139 S.Ct. at 2200. In light of this record, and the court's familiarity with the plea colloquy and underlying proceedings, Session fails to demonstrate actual prejudice from the omission of the Rehaif element of the § 922(g) offense from his plea colloquy. Accordingly, this claim is DENIED.
B. Indictment Failed to Allege Element of the Offense
Session also asserts a Rehaif claim alleging a violation of the Fifth Amendment right to "be convicted only on charges considered and found by a grand jury." United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (citing Costello v. United States, 350 U.S. 359, 362 (1956)). As Session points out in the reply, the government fails to address specifically the Rehaif claim on the ground that the indictment was defective. It is undisputed that the indictment failed to allege knowledge of prohibited status as an element of the offense under § 922(g), but in light of the overwhelming and uncontroverted evidence that Session had two federal felony convictions for which he was sentenced to more than one year in prison on concurrent sentences, as well as the fact that he was serving a term of supervised release on those felony convictions when he committed the § 922(g) offense, this defect in the indictment amounts to harmless error for the reasons set forth above with respect to the claim of Rule 11 error under Rehaif. See Johnson, 2020 WL 6268027 at *5. This claim is therefore DENIED.
CONCLUSION
For the foregoing reasons, the motion of defendant Major Alexander Session, III, to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 is DENIED. This is a final order disposing of the § 2255 motion on the merits of the claims for sentence relief.
DENIAL OF CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(1), an appeal from a final order in a proceeding under § 2255 may not be taken unless a circuit justice or judge issues a certificate of appealability ("COA"). A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996). Pursuant to Rule 11(a) Governing Section 2255 Proceedings, the court declines to issue a certificate of appealability because reasonable jurists would not find debatable whether the § 2255 motion conclusively shows that defendant is not entitled to relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED. Dated: October 30, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge