Luna v. Streeval

1

PASCUAL LUNA, Petitioner, v. WARDEN STREEVAL, Respondent.

Civil Action No. 7:21-cv-00415

United States District Court, W.D. Virginia, Roanoke Division

May 24, 2022

MEMORANDUM OPINION

Elizabeth K. Dillon, United States District Judge

Pascual Luna, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C § 2241, alleging that his continued detention is unconstitutional. Luna asserts that under Rehaif v United States, __ U.S. __, 139 S.Ct. 2191 (2019), his conviction under 18 U.S.C. § 922(g) is invalid. See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (hereinafter “Jones”) (allowing § 2241 challenge to federal conviction). Respondent has filed a response in opposition and motion to dismiss the petition arguing that the court lacks jurisdiction over it, that Luna cannot overcome his procedural default, and that his claim fails on its merits.

For the reasons set forth herein, the court concludes that jurisdiction is lacking over Luna's § 2241 petition. Thus, the court will grant respondent's motion and dismiss the petition without prejudice for lack of jurisdiction.

I. BACKGROUND

In June 2007, Luna was charged in a two-count indictment in the District of Massachusetts, in Case No. 1:07-cr-10195.^[1] The indictment charged him with being a felon-in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and assault and battery on a police officer, in violation of 18 U.S.C. § 111. Luna, ECF No. 1. In October 2008, a superseding indictment was returned, which added a charge of discharge of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Luna, ECF No. 102. Luna proceeded to trial, and a jury found him guilty of all three counts. Id., ECF No. 134.

The sentencing court determined that Luna should be sentenced as an armed career criminal, noting that he had four predicate felonies. See 18 U.S.C. § 924(e) (setting forth enhanced sentences for persons with three prior serious drug offenses or violent felonies). The predicates relied upon by the district court, as referenced in the Presentence Investigation Report (“PSR”), were as follows:

1. A 2000 conviction for armed robbery, for which Luna was found guilty as a “youthful offender.”^[2] He was committed to the custody of Department of Youth Services (DYS) for more than six years, with occasional periods in which he was permitted to live at his parents' home. There were also periods when he was “Absent without Permission (Parole Violation).” From June 13, 2005 to April 19, 2006, he was in adult detention. (PSR ¶ 63.)

2. Convictions for resisting arrest and three counts of assault and battery on a police officer in Somerville, MA, to which he plead guilty in November 2005. Luna was sentenced to two years of custody, “six months Direct, ” with the “balance suspended with probation.” He violated his probation in January 2007, and served an additional four months' custody. (PSR, ¶ 65.)

3. A conviction for assault by dangerous weapon - firearm, committed in June 2005. He was sentenced to 2.5 years in custody, one year direct and consecutive to his offense in Dkt. 04-0064 (which is referenced in PSR ¶ 65), with the balance suspended and served on probation. He later violated his probation and was sentenced to 18 months' imprisonment in 2007. (PSR ¶ 67) 4. A conviction for possession with intent to distribute a Class B substance, for which he was arraigned on November 14, 2006. He was sentenced to 18 months in custody, “6 months Direct, Balance Suspended with Probation to” January 26, 2009. (PSR ¶ 68.)

(PSR ¶ 74, Dkt. No. 6-2.)

For his federal offenses, the court determined his guideline range to be 330 to 382 months. PSR ¶ 114; Luna, ECF No. 140 at 2. The court sentenced him to a total of 300 months, consisting of 180 months on Count One (the § 922(g) offense), 36 months on Count Two (the assault and battery offense), to be served concurrently to Count One, and 120 months on Count Three (the § 924(c) offense), to run consecutive to the other two sentences. Luna, ECF Nos. 150, 164. Luna appealed, and his conviction and sentence were affirmed on appeal. United States v. Luna, 649 F.3d 91 (1st Cir. 2011); Luna, ECF Nos. 173, 174. As part of his appeal, Luna argued that certain of his prior felony convictions did not meet the definition of a “violent felony” under the ACCA. The appellate decision included a determination that his prior juvenile conviction for armed robbery was categorically a violent felony under the ACCA. Luna, 649 F.3d at 109. Luna filed a petition for writ of certiorari, which was denied on December 14, 2011. Luna, ECF Nos. 176, 177.

About a month later, the clerk of the District of Massachusetts received from Luna a § 2255 motion. He was permitted to supplement that motion in January 2014, to directly attack his sentence on the ground that two of his prior ACCA predicate convictions had been vacated by a state court. Luna, ECF Nos. 178, 201. The court denied his ineffective assistance claims. United States v. Luna, No. 07-10195-RWZ, 2014 WL 1603732 (D. Mass. Apr. 18, 2014). The United States did not oppose Luna's motion for re-sentencing based on the vacatur of his two convictions, Luna, ECF No. 209, and he was resentenced on December 18, 2014, to a total term of incarceration of 240 months. That sentence consisted of 120 months on Counts One and Two, to run concurrently, and 120 months on Count Three. Luna, ECF Nos. 211, 227, 228. He appealed, and the First Circuit affirmed the amended judgment on September 6, 2017. Id., ECF No. 236. He again petitioned for a writ of certiorari, which was denied on January 8, 2018. Id., ECF No. 239.

On December 31, 2018, Luna filed a second § 2255 petition, raising among other things the same Rehaif claim he raises in his § 2241 petition before this court. Id., ECF No. 240. The district court denied his § 2255 petition on the ground that Rehaif announced a new rule of statutory interpretation and not a new rule of constitutional law, making it unlikely that the First Circuit would certify or allow this claim to be brought in a successive § 2255 petition. Id., ECF No. 290; see also United States v. Luna, 2021 WL 2338998, at *4 (D. Mass. June 8, 2021). The district court granted a certificate of appealability with respect to several issues, including the issue of whether § 2255(h) would authorize a second § 2255 motion. Luna appealed, and his appeal remains pending. United States v. Luna, No. 21-1486 (1st Cir.). Briefing has currently been stayed pending a decision by the appellate court on the United States' motion for summary disposition.

Luna's habeas petition, pursuant to 28 U.S.C. § 2241, was received by the clerk of this court on July 19, 2021. Respondent has filed an opposition and a motion to dismiss (Dkt. No. 6), and Luna has filed a reply (Dkt. No. 10), making the matter ripe for disposition.

B. Luna's Rehaif Claim

In his petition, Luna challenges his felon-in-possession conviction, pursuant to 18 U.S.C. § 922(g). Section 922(g) makes it unlawful for certain individuals to possess firearms. “The provision lists nine categories of individuals subject to the prohibition, including felons ....A separate provision, § 924(a)(2), adds that anyone who ‘knowingly' violates the first provision shall be fined or imprisoned for up to 10 years.” Rehaif, 139 S.Ct. at 2194; see also 18 U.S.C. § 922(g). In Rehaif, the Supreme Court held that “the word ‘knowingly' applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S.Ct. at 2194.

Luna asserts that, pursuant to Rehaif, his conviction must be vacated. He argues first that there was insufficient evidence to convict him because the government did not present sufficient evidence to show that he knew he was a felon. (Pet. 6-7, Dkt. No. 1.) He claims that the indictment was defective and affected his substantial rights because it did not require that he had knowledge of his status as a felon. (Id.; Mem. Supp. Pet. 3-4, Dkt. No. 1-1.) Relatedly, he argues that his conviction is invalid because the jury was not instructed that they had to find he knew he was a prohibited person. (Mem. Supp. Pet. 2-3.) He requests that “he be released from his unlawful detention. (Pet. at 8.) In addition to his substantive arguments, Luna explains why he believes he satisfies the Jones test and is entitled to seek relief under § 2241. (Mem. Supp. Pet. 4-9.)

II. DISCUSSION

Typically, a petitioner challenging the validity of his conviction or sentence must proceed under 28 U.S.C. § 2255 in the district where he was convicted. However, the “savings clause” in § 2255 allows a prisoner to challenge the validity of his conviction and/or his sentence by filing a § 2241 petition for writ of habeas corpus, if he demonstrates that § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).^[3] “[T]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (internal citations omitted).

In Jones, the Fourth Circuit explained that § 2255 is “inadequate or ineffective” to test the legality of a conviction when:

(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the

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