Boykins v. USA

Filing 2

ORDERED that Boykins' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Larry R. Hicks on 1/6/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 1 of 6

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

UNITED STATES OF AMERICA,

10
v.

***
Case No. 3:18-cr-00029-LRH-CLB-1

Respondent/Plaintiff, ORDER

11
JOHN MICHAEL BOYKINS,
12
Petitioner/Defendant.

13
14

Before the Court is petitioner Jason Michael Boykins’ (“Boykins”) motion, to vacate, set

15

aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 42). Boykins filed his motion

16

considering the recent ruling in Rehaif v. United States, 139 S. Ct. 2191 (2019). The government

17

opposes (ECF No. 46), arguing that Boykins’ claims are procedurally barred because he did not

18

raise them on direct appeal. In his reply (ECF No. 47), Boykins maintains that the constitutional

19

errors are structural.

20

For the reasons contained within this Order, the Court denies his motion and denies him a

21

certificate of appealability.

22

I.

BACKGROUND

23

Boykins has an extensive criminal history which, among other things, includes Unlawful

24

Possession of a Firearm by a Previously Convicted Felon, and subsequent violations of his

25

supervised release stemming from that conviction.

26

The current motion relates to Boykins’ conduct on August 3, 2017, where a detective with

27

the Sparks Police Department located a vehicle suspected to be involved with a shooting from a

28

week earlier. After stopping the vehicle, the detective found that the driver, Boykins, had a
1

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 2 of 6

1

suspended driver’s license. Following Boykins' arrest and upon conducting an inventory search of

2

the vehicle he was driving, detectives found two weapons: a loaded .45 caliber, Taurus Millennium

3

pistol, and a loaded .357 caliber, Taurus revolver.

4

In October 2018, Boykins pleaded guilty to Unlawful Possession of a Firearm by a

5

Previously Convicted Felon. ECF No. 21. This Court sentenced Boykins to 38 months’

6

imprisonment followed by three years of supervised release. Now, Boykins seeks to vacate his

7

sentence pursuant to 28 U.S.C. § 2255.

8

II.

LEGAL STANDARD

9

Pursuant to 28 U.S.C. § 2255, a petitioner may file a motion requesting the court which

10

imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion

11

may be brought on the following grounds: (1) “the sentence was imposed in violation of the

12

Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such

13

sentence;” (3) “the sentence was in excess of the maximum authorized by law;” or (4) the sentence

14

“is otherwise subject to collateral attack." Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th

15

Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized by a decision of

16

the United States Supreme Court, a one-year statute of limitations applies. 28 U.S.C. §

17

2255(f). That one-year limitation period begins to run from "the date on which the right asserted

18

was initially recognized by the Supreme Court." Id. § 2255(f)(3).

19

On June 21, 2019, the Supreme Court decided Rehaif, overturning established Ninth Circuit

20

precedent. 139 S. Ct. 2191. In the past, the government was only required to prove that a defendant

21

knowingly possessed a firearm under 18 U.S.C. §§ 922(g) and 924(a)(2). Id. at 2200. Now, under

22

Rehaif, the government “must prove both that the defendant knew he possessed a firearm and that

23

he knew that he belonged to the relevant category of persons barred from possessing a firearm.”

24

Id.

25

III.

DISCUSSION

26

Boykins argues that by leaving out the new Rehaif element from the original indictment,

27

this Court lacked jurisdiction. ECF No. 42, at 14. He further alleges the omission in the indictment

28

violated both his Fifth Amendment guarantee that a grand jury find probable cause to support all
2

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 3 of 6

1

the necessary elements of a crime, and his Sixth Amendment right to effective assistance of counsel

2

and to be informed of the nature and cause of the accusation. Id. at 16–21.

3

A. Unconditional Guilty Plea

4

The government contends that by pleading guilty unconditionally, Boykins waived his

5

right to make any non-jurisdictional challenges to the indictment; specifically, his Fifth and Sixth

6

Amendment challenges. See Tollet v. Henderson, 411U.S. 258, 267 (1973). ECF No. 46, at 12.

7

As part of his plea, Boykins waived “…all collateral challenges, including any claims under

8

28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court adjudicated

9

guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel.” ECF

10

No. 22, at 11. Consequently waiving “all non-jurisdictional defenses and cures all antecedent

11

constitutional defects, allowing only an attack on the voluntary and intelligent character of the

12

plea.” United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 2013). Considering the plea’s cut-

13

and-dry language, the Court finds Boykins’ claims are barred by his guilty plea even in view of

14

the exceptions to Tollett v. Henderson, 411 U.S. 258 (1973). 1 Nevertheless, the Court still finds it

15

necessary to address the jurisdictional and procedural default arguments below.

16

B. Jurisdiction

17

This Court “has jurisdiction of all crimes cognizable under the authority of the United

18

States….” Lamar v. United States, 240 U.S. 60, 65 (1916). Any “objection that the indictment does

19

not charge a crime against the United States goes only to the merits of the case,” and does not

20

deprive the court of jurisdiction. Id.; see also United States v. Cotton, 535 U.S. 625, 630 (2020)

21

(reiterating Lamar). Quite importantly, the Ninth Circuit and decisions within the District of

22

Nevada have relied on the principle announced in Cotton in cases considering the aftermath of

23

Rehaif. See, e.g., United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (“[T]he

24

indictment's omission of the knowledge of status requirement did not deprive the district court of

25
1

26
27
28

Tollett limited federal habeas challenges to pre-plea constitutional violations. 411 U.S. at 267. Exceptions to this
general rule include a claim which the state cannot “constitutionally prosecute.” Class v. U.S., 138 S. Ct. 789, 805
(2018) (quoting Menna v. New York, 423 U.S. 61, 63 (1975) (per curiam)). While Boykins argues such an exception
exists in the present instance (ECF No. 42, at 21), the Court agrees with other well-reasoned decisions in the District
of Nevada which hold it does not. See United States v. Abundis, Case No. 2:18-cr-00158-MMD-VCF-1 (D. Nev. Nov.
30, 2020) (finding that the exceptions to Tollett do not apply under Rehaif as the claims “could have been remedied
by a new indictment.”).

3

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 4 of 6

1

jurisdiction.”); see also United States v. Miller, Case No. 3:15-cr-00047-HDM-WGC (D. Nev.

2

Dec. 8, 2020); United States v. Baustamante, Case No. 2:16-cr-00268-APG (D. Nev. Dec. 7,

3

2020).

4
5

Therefore, pursuant to Ninth Circuit precedent and decisions in this District, the Court had
and continues to have jurisdiction over Boykins’ case despite Rehaif.

6

C. Procedural Default

7

The government also argues that Boykins’ claims are procedurally defaulted. ECF No. 46,

8

at 6. While a defendant certainly can question the underlying legality of his sentence or conviction,

9

one who does not on direct appeal is procedurally defaulted from doing so unless they can

10

demonstrate: (1) cause and prejudice; or (2) actual innocence. See Bousley v. U.S., 523 U.S. 614,

11

622 (1998) (citations omitted). “‘Cause’ is a legitimate excuse for the default; ‘prejudice’ is actual

12

harm resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240,

13

244 (9th Cir. 1984).

14

Boykins did not challenge the validity of the indictment and/or plea on direct appeal, but

15

instead, argues his claims have not procedurally defaulted because he can demonstrate cause and

16

prejudice, or, in the alternative, the omission in his indictment is a structural error and therefore

17

only requires a showing of cause. Each argument is addressed in turn.

18

1.

Cause

19

Boykins can likely demonstrate cause. Rehaif overturned long standing precedent in the

20

Ninth Circuit, and the decision’s constitutional consequences were not “reasonably available to

21

counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984).

22

2.

Prejudice

23

Still, Boykins cannot demonstrate prejudice. The Ninth Circuit has found in numerous

24

scenarios, that even if a defendant had been aware that the Government would need to prove the

25

knowledge-of-status element, there is no reasonable probability that the outcome would have been

26

different. See United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (holding that “the

27

failure of the indictment and plea colloquy to include the element of knowledge of felon status

28

does not require us to vacate [the] conviction…”); United States v. Schmidt, 792 F. App’x 521,
4

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 5 of 6

1

522 (9th Cir. 2020) (“Although [defendant] did not argue below that the government was required

2

to prove [defendant] knew he was a felon, under any standard of review there was overwhelming

3

evidence that [defendant] knew he was a felon when he possessed the firearms at issue in this

4

case.”); United States v. Tuan Ngoc Luong, 965 F.3d 973, 989 (9th Cir. 2020) (finding in the trial

5

context that, “even if the district court had instructed the jury on the knowledge-of-status element,

6

there is no reasonable probability that the jury would have reached a different verdict…”). In other

7

words, the Ninth Circuit has repeatedly found no actual harm resulted from alleged constitutional

8

violations stemming from the decision in Rehaif in cases involving comparable facts to Boykins.

9

Here, Boykins admitted to being a convicted felon at the time he possessed the guns. ECF

10

No. 22, at 3. In addition, he had served more than a year in prison upon each one of five prior

11

felony convictions spanning over twenty years. The Court is not persuaded that the inclusion of

12

the Rehaif element would have changed Boykins’ decision to plead guilty or that his plea was

13

involuntary.

14

Accordingly, there is no reasonable probability, but for the Rehaif error, that the outcome

15

of the proceeding would have been different. Therefore, because Boykins has not demonstrated

16

both cause and prejudice, he procedurally defaulted on his claims challenging the legality of his

17

conviction.

18

D. Structural Error

19

Alternatively, Boykins argues that the constitutional errors are structural, therefore only

20

requiring a showing of cause. “[C]ertain errors, termed structural errors, might affect substantial

21

rights regardless of their actual impact on an appellant’s trial.” United States v. Marcus, 560 U.S.

22

258, 263 (2010) (citations omitted). Structural errors go to the very heart of the trial and are not

23

“simply an error in the trial process itself.” Arizona v. Fulimante, 499 U.S. 279, 310 (1991).

24

While the Ninth Circuit has not decided whether the knowledge-of-status element in Rehaif

25

presents issues of structural error, numerous other circuits have concluded it does not. See United

26

States v. Nasir, 2020 WL 7041357, at *19, n.30 (3d Cir. Dec. 1, 2020); United States v. Coleman,

27

961 F.3d 1024, 1030 (8th Cir. 2020); United States v. Payne, 964 F.3d 652, 657 (7th Cir. 2020);

28

United States v. Lavalais, 960 F.3d 180, 187 (5th Cir. 2020); United States v. Trujillo, 960 F.3d
5

Case 3:20-cv-00278-LRH Document 2 Filed 01/06/21 Page 6 of 6

1

1196, 1207 (10th Cir. 2020). The Court agrees with these circuit courts and concludes that Rehaif

2

likely does not involve the limited class of errors the Supreme Court has deemed structural.

3

E. Certificate of Appealability is Denied

4

To proceed with an appeal of this Order, Boykins must receive a certificate of appealability

5

from the Court. 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22; 9TH CIR. R. 22-1; Allen v. Ornoski,

6

435 F.3d 946, 950-951 (9th Cir. 2006). For the Court to grant a certificate of appealability, the

7

petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. §

8

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). And the petitioner bears the burden

9

of demonstrating that the issues are debatable among reasonable jurists; that a court could resolve

10

the issues differently; or that the issues are “adequate to deserve encouragement to proceed

11

further.” Slack, 529 U.S. at 483-84 (citation omitted).

12

As discussed above, Boykins has failed to raise a meritorious challenge to his conviction

13

and sentence pursuant to the Ninth Circuit’s decisions following Rehaif. As such, the Court finds

14

that he has failed to demonstrate that reasonable jurists would find the Court’s assessment of his

15

claims debatable or wrong. See Allen, 435 F.3d at 950–51. Therefore, the Court denies Boykins a

16

certificate of appealability.

17

IV.

18
19

CONCLUSION
IT IS THEREFORE ORDERED that Boykins’ motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255 (ECF No. 42) is DENIED.

20

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

21

IT IS FURTHER ORDERED that the Clerk of Court ENTER a separate and final

22

Judgment denying Boykins’ § 2255 motion. See Kingsbury v. United States, 900 F.3d 1147,

23

1150 (9th Cir. 2018).

24

IT IS SO ORDERED.

25

DATED this 6th day of January, 2021.

26

LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

27
28
6