Miranda v. United States

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Robert S. Lasnik, United States District Judge.

In this motion under 28 U.S.C. § 2255, petitioner Frankie Manuel Miranda moves to vacate, set aside, or correct his sentence under 18 U.S.C. § 922(g). No. CV20-963RSL Dkt. # 1. The Court has considered the parties' memoranda, the exhibits, and the remainder of the record. For the following reasons, the petition is denied.

I. BACKGROUND

On February 22, 2017, Miranda entered a guilty plea to the following charges:

Count 1: Felon in Possession of a Firearm, in violation of Title 18, United States Code, Section 922(g)(1)

Count 2: Felon in Possession of a Firearm, in violation of Title 18, United States Code, Section 922(g)(1)

Count 3: Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of Title 18, United States Code, Section 924(c)(1)(A)

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Case No. CR16-186RSL, Dkt. # 46 at 1-2.^[1] The Court imposed 60 months on Counts 1 and 2 and 60 months on Count 3 to be served consecutively for a total sentence of 120 months. CR. Dkt. # 78 at 2. As part of Miranda's plea agreement, Miranda agreed to waive any right to bring a collateral attack, except as to effectiveness of legal representation, against any of the convictions in his plea agreement. CR Dkt. # 46 at 9-10. Miranda did not appeal his conviction or sentence. See generally CR Dkt.

The “Statement of Facts” in Miranda's plea agreement notes that Miranda had previously been convicted of at least the following crime punishable by imprisonment for a term exceeding one year: Unlawful Possession of a Firearm in the Second Degree in King County Superior Court under cause number 10-C-08175-1 KNT on or about December 3, 2010. CR Dkt. # 46 at 7. Miranda's presentence report notes Miranda had previously been convicted of Attempted Unlawful Possession of a Firearm in the First Degree in King County Superior Court under case number 10-1-08175-1 on December 3, 2010, for which Miranda served 19.5 months in custody. CR Dkt. # 68 at 9.

On August 21, 2018, Miranda filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel for failure to file a notice of appeal for which he received an evidentiary hearing on April 25, 2019. CV Dkt. # 1 at 2-3. Following the evidentiary hearing, Miranda filed a “Waiver of Right to Appeal and Voluntary Withdrawal of Motion Pursuant to 28 U.S.C. § 2255.” CV Dkt. # 1 at 3. The parties filed a Stipulated Motion to Dismiss that the Court granted on May 20, 2019, without reaching a decision on the merits. CV Dkt. # 1 at 3.

In June 2020, Miranda filed this 28 U.S.C. § 2255 motion to vacate his convictions for Felon in Possession of a Firearm under 18 U.S.C. § 922(g) in light of the Supreme Court's decision in Rehaif v. United States. 139 S.Ct. 2191 (2019); CV Dkt. # 1. Miranda argues that because the Court failed to advise him of the element requiring knowledge of his prohibited

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status under § 922(g) pursuant to Rehaif, Miranda's plea was not knowingly and intelligently made, and thus violated the Due Process Clause under the Constitution and Federal Rule of Criminal Procedure 11(b)(G). CV Dkt. # 1 at 7; 139 S.Ct. 2191.

II. DISCUSSION

A. Preliminary Issues

1. Timeliness

The government concedes Miranda's motion is timely. CV Dkt. # 4 at 3. Under 28 U.S.C. § 2255, a claim is timely if it is brought within one year of the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3). On June 21, 2019, the Supreme Court issued its decision in Rehaif, holding that a felon-in-possession conviction under 18 U.S.C. § 922(g) requires proof the defendant knew of his prohibited status as a felon. 139 S.Ct. at 2194. The government agrees that Rehaif applies retroactively to cases on collateral review. CV Dkt. # 4 at 4 (citing Welch v. United States, 136 S.Ct. 1257, 1264-66 (2016)). Because Miranda's § 2255 motion was filed within one year of the Rehaif decision, Miranda's Rehaif-based claim is timely. 28 U.S.C. § 2255(f)(3).

2. Successive Motion

The government concedes that this is not a successive § 2255 motion. CV Dkt. # 4 at 3. In relevant part, 28 U.S.C. § 2255(h) provides that “[a] second or successive motion must be certified in section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). The Supreme Court has held that “[a] habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits . . . is not a second or successive petition.” Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Because Miranda's 2018 § 2255 motion was not adjudicated on the merits, Miranda's present motion is not “second or successive” under 28 U.S.C. § 2255(h) and does not require appellate certification. In general, a new petition is “second or successive” if it raises claims that

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were or could have been adjudicated on their merits in an earlier petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Miranda's instant motion is not second or successive because Rehaif was decided more than one month after Miranda voluntarily withdrew the 2018 motion and raises claims that could not have been adjudicated on their merits in the earlier petition.

3. Collateral Attack Waiver

The government's argument that Miranda waived his right to collaterally attack his conviction is unpersuasive because Miranda is challenging the validity of his guilty plea, including the waiver on which the government relies. See United States v. Portillo-Cano, 192 F.3d 1246, 1249-50 (9th Cir. 1999) (reasoning that a waiver of appeal may be found invalid when the defendant challenges compliance with Rule 11 procedure); CV Dkt. # 4 at 6-7; CV Dkt. # 5 at 1-2.

4. Structural Error

The Court rejects Miranda's argument that the Rehaif error is structural and requires automatic reversal. CV Dkt. # 5 at 8. The Supreme Court held in Greer that unpreserved Rehaif claims are subject to plain-error review on direct appeal under Federal Rule of Criminal Procedure 52(b). Greer v. United States, 141 S.Ct. 2090, 2099-100 (2021). In so holding, the Supreme Court rejected the same argument that Miranda makes here, that Rehaif errors that occur in a plea proceeding are “structural” and require automatic vacatur without regard to whether a defendant can otherwise satisfy the plain-error test. CV Dkt. # 5 at 8-10; see Greer, 141 S.Ct. at 2100 (holding that “a Rehaif error in a plea colloquy is . . . not structural.”). The Supreme Court reasoned that structural errors are errors that affect the entire conduct of the proceeding from beginning to end, and therefore a Rehaif error in a plea colloquy is not structural. Greer, 141 S.Ct. at 2100. Discrete defects in the criminal process, such as the omission of the mens rea element in Miranda's plea colloquy, are not structural because they do not “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. (citing Neder v. United States, 527 U.S. 1, 9 (1999)).

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“Rehaif errors fit comfortably within the ‘general rule' that ‘a constitutional error does not automatically require reversal of a conviction.'” Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).

B. Procedural Default

A defendant who fails to raise a claim on direct appeal is generally barred from raising the claim on collateral review in federal habeas cases. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). Miranda's claim is procedurally defaulted because he did not attack the voluntariness and intelligence of the plea on direct review. See Bousley v. United States, 523 U.S. 614, 622 (1998); Irvis v. United States, No. C20-954TSZ, 2021 WL 606359, at *2 (W.D. Wash. Jan. 11, 2021). To overcome procedural default, Miranda must “show both (1) ‘cause' excusing his . . . procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982).

The Court assumes without deciding that Miranda can establish cause to excuse procedural default but concludes that Miranda cannot demonstrate actual prejudice. See Irvis, 2021 WL 606359, at *2. To demonstrate actual prejudice to overcome procedural default, Miranda would need to show “not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (citing Frady, 456 U.S. at 170); see also Cruickshank v. United States, 505 F.Supp.3d 1127, 1133 (W.D. Wash. 2020) (applying Murray in the context of a plea agreement). When evaluating whether a petitioner sustained prejudice, the Court “may consult the whole record when considering the effect of any error on substantial rights.” United States v. Vonn, 535 U.S. 55, 59 (2002). To demonstrate actual prejudice, Miranda must show at minimum that the Rehaif error would have been reversible plain error if it had been raised on direct appeal. See Irvis, 2020 WL 606359, at *2; Cruickshank, 505 F.Supp.3d at 1133. Plain error requires showing (1) there was an error, (2) the error is clear or obvious, (3) the error affected [the defendant's] substantial rights, and (4) the error seriously affected the fairness,

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integrity, or public...