Rodriguez v. USA

Filing 3

ORDER Denying Motion to Vacate - 2255 in 2:09-cr-262-JCM. Clerk to enter judgment and close the case. Signed by Judge James C. Mahan on 10/21/2022. (Copies have been distributed pursuant to the NEF - ABG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff(s),

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Case No. 2:09-CR-262 JCM (GWF)
ORDER

v.
ALFONSO RIVERA-AVALOS, et al.,

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Defendant(s).

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Presently before the court is petitioner Juan Rodriguez’s motion pursuant to 28 U.S.C.

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§ 2255 to vacate, set aside, or correct sentence. (ECF No. 387). The United States of America

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(“the government”) filed a response (ECF No. 397), to which petitioner replied (ECF No. 401).

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I.

Background

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In April 2014, petitioner was sentenced to five years in custody for conspiracy to distribute

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methamphetamine, possession of a firearm in furtherance of a drug trafficking crime, and being a

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felon in possession of a firearm following a guilty verdict in a jury trial. (ECF No. 213). After an

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appeal that affirmed the conviction but vacated the sentence, this court resentenced petitioner to

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180 months in prison on the same counts. (ECF No. 310).

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After petitioner’s conviction, the Supreme Court decided Rehaif v. United States. 139 S.

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Ct. 2191 (2019). In Rehaif, a defendant—a foreign student who overstayed his visa and was

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unaware of his illegal status—successfully challenged his conviction for possessing a firearm. Id.

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at 2194–95. After Rehaif, to obtain a conviction under 28 U.S.C. §922(g), the government “must

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prove both that the defendant knew he possessed a firearm and that he knew he belonged to the

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relevant category of persons barred from possessing a firearm.” Id. at 2200. “For example, in a

James C. Mahan
U.S. District Judge

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felon-in-possession prosecution under § 922(g)(1), the defendant must know that his or her prior

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conviction was punishable by more than one year of imprisonment.” United States v. Singh, 979

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F.3d 697, 727 (9th Cir. 2020). Petitioner now moves to vacate his conviction under 28 U.S.C. §

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2555 in light of Rehaif. (ECF No. 387).

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II.

Legal Standard

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Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court

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imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C.

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§ 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a

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complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill

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v. United States, 368 U.S. 424, 428 (1962).

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Limitations on § 2255 motions are based on the fact that the movant “already has had a fair

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opportunity to present his federal claims to a federal forum,” whether or not he took advantage of

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the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed

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to provide criminal defendants multiple opportunities to challenge their sentence.” United States

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v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

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“When a defendant has raised a claim and has been given a full and fair opportunity to

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litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.”

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United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Further, “[i]f a criminal defendant

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could have raised a claim of error on direct appeal but nonetheless failed to do so,” the defendant

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is in procedural default. Johnson, 988 F.2d at 945; see also Bousley v. United States, 523 U.S.

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614, 622 (1998).

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Defendants who fail to raise an issue on direct appeal may later challenge the issue under

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§ 2255 only if they demonstrate: (1) sufficient cause for the default; and (2) prejudice resulting

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from it. See Bousley, 523 U.S. at 622. The “cause and prejudice” exception revives only defaulted

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constitutional claims, not nonconstitutional sentencing errors. United States v. Schlesinger, 49

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F.3d 483, 485 (9th Cir. 1994).

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James C. Mahan
U.S. District Judge

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III.

Discussion

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a. Jurisdiction

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An indictment must sufficiently charge an “offense[] against the laws of the United States.”

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18 U.S.C. § 3231; see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Yet the

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Supreme Court in United States v. Cotton held that “defects in an indictment do not deprive a court

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of its power to adjudicate a case.” 533 U.S. 625, 630 (2002). A claim that “the indictment does

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not charge a crime against the United States goes only to the merits of the case.” Id. at 630–31

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(quoting Lamar v. United States, 240 U.S. 60, 65 (1916)). The Ninth Circuit has since held that

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an indictment’s omission of a knowledge of status element does not deprive the court of

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jurisdiction. See, e.g., United States v. Espinoza, 816 F. App’x 82, 84 (9th Cir. 2020); United

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States v. Velasco-Medina, 305 F.3d 839, 845–46 (9th Cir. 2002). Thus, the court rules that it did

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not lack jurisdiction despite the indictment not charging the Rehaif knowledge element.

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b. Procedural Default

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A claim not raised on direct appeal is procedurally defaulted and can only be raised in a §

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2255 motion if the petitioner can show cause and actual prejudice or actual innocence. See

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Bousley, 523 U.S. at 622. “[W]here the claim rests upon a new legal or factual basis that was

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unavailable at the time of direct appeal,” a petitioner has cause for failure to raise the claim on

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direct appeal. Braswell, 501 F.3d at 1150. Actual prejudice requires the petitioner to show “not

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merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his

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actual and substantial disadvantage, infecting his entire trial with error of constitutional

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dimensions.” Frady, 456 U.S. at 170.

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Petitioner has shown cause because Rehaif “overturn[ed] a longstanding and widespread

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practice to which [the] Court has not spoken, but which a near-unanimous body of lower court

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authority has expressly approved.” Reed v. Ross, 468 U.S. 1, 17 (1984). But petitioner cannot

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show actual prejudice.

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At trial, petitioner stipulated that at the time of the conduct underlying the instant

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conviction he had previously been convicted of a felony. (ECF No. 185 at 2). It is implausible

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that petitioner did not know he was a convicted felon. Accord United States v. Beale, No. 2:17-

James C. Mahan
U.S. District Judge

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cr-00050-JAD-CWH-1, 2021 WL 325713, at 3 (D. Nev. Feb. 1, 2021) (“Beale must still show

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‘actual prejudice’ to excuse his default. Beale can’t do so with a criminal record and sentencing

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history like his.”); United States v. Lowe, No. 2:14-cr-00004-JAD-VCF, 2020 WL 2200852, at *1

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n.15 (D. Nev. May 6, 2020) (collecting cases in which defendants’ prior felony convictions

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precluded a finding of actual prejudice). “Felony status is simply not the kind of thing that one

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forgets.” United States v. Greer, 141 S. Ct. 2090, 2100 (2021).

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In addition, the court will not rule that Rehaif error is a structural error that excuses

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petitioner from showing actual prejudice. That is because structural errors are a very limited class

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of errors that affect the framework within which the trial proceeds, such that it is often difficult to

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assess the effect of the error. See United States v. Marcus, 560 U.S. 258, 263 (2010). And ruling

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otherwise would be imprudent based on the Ninth Circuit’s treatment of Rehaif in different

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contexts.

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For example, in Tate v. United States, the Ninth Circuit held that Rehaif was a statutory

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interpretation case and “did not invoke any constitutional provision or principle” that could sustain

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a successive § 2255 motion. Tate v. United States, 982 F.3d 1226, 1228 (9th Cir. 2020). And in

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United States v. Benamor and United States v. Johnson, the Ninth Circuit did not treat Rehaif error

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as structural and instead conducted plain-error review and held that the error did not affect the

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defendants’ substantial rights or the fairness, integrity, or public reputation of the judicial

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proceedings. United States v. Johnson, 833 F. App’x 665, 668 (9th Cir. 2020); United States v.

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Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020).

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And after all, the Rehaif court itself remanded the case for harmless error review rather

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than automatically reversing the conviction. S. Ct. at 2200. For these reasons, the court will not

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excuse petitioner’s failure to show actual prejudice.

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c. Certificate of Appealability

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The right to appeal a court’s denial of a § 2255 motion requires a certificate of

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appealability. To obtain such a certificate, the petitioner must make a “substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c). That is, “[t]he petitioner must demonstrate

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that reasonable jurists would find the district court’s assessment of the constitutional claims

James C. Mahan
U.S. District Judge

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221

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F.3d 1074, 1077–79 (9th Cir. 2000). Based on this standard and the almost uniform treatment of

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post-Rehaif § 2255 motions in this district, the court denies petitioner a certificate of appealability.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that petitioner’s motion

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pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (ECF No. 387) be, and the

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same hereby is, DENIED.

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The clerk is directed to enter separate civil judgment denying petitioner’s § 2255 motion

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in the matter of Rodriguez v. United States, case number 2:20-cv-01151-JCM, and close that case.

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DATED October 21, 2022.
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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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