Mujahidh v. United States, CASE NO. C19-1852JLR

WALLI MUJAHIDH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. C19-1852JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

March 23, 2020

ORDER DENYING MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

I. INTRODUCTION

Before the court is Petitioner Walli Mujahidh's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Mot. (Dkt. # 1).) The court has reviewed Mr. Mujahidh's motion, all submissions filed in support of the motion, Respondent United States of America's ("the Government") response (Resp. (Dkt. # 5)), the relevant portions of the

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// record, and the applicable law. Being fully advised,¹ the court DENIES Mr. Mujahidh's motion.

II. BACKGROUND

The grand jury returned an indictment on July 7, 2011, charging Mr. Mujahidh and a co-defendant with four criminal counts related to their plot to attack a military recruiting office in Seattle. (See CR11-0228JLR Indictment (Dkt. # 18); Resp. at 2.) Mr. Mujahidh then entered a guilty plea on December 8, 2011, to three of the four counts: conspiracy to murder officers and employees of the United States, conspiracy to use weapons of mass destruction, and unlawful possession of a firearm. (See CR11-0228JLR Plea Agreement (Dkt. # 45) ¶ 1; see also Resp. at 2.) In exchange for these pleas, the Government agreed to dismiss the count charging Mr. Mujahidh with possession of firearms in furtherance of crimes of violence, which carried with it a mandatory minimum of 30 years in prison. (See Resp. at 2 (citing 18 U.S.C. § 924(c)(1)(B)(ii)); CR11-0228JLR Plea Agreement ¶ 11.) The court then sentenced Mr. Mujahidh to 204 months for the conspiracy counts and 120 months for unlawful possession of a firearm, to run concurrently. (See CR11-0228JLR Judgment (Dkt. # 235) at 2; see also Resp. at 2.)

On November 14, 2019, Mr. Mujahidh filed a motion to vacate his sentence under 28 U.S.C. § 2255. (See Mot.) Mr. Mujahidh's motion raises one claim. (See id. at 4.) Mr. Mujahidh seeks to vacate his conviction of unlawful possession of a firearm. (See generally id.; see Resp. at 1.) Mr. Mujahidh did not file a direct appeal and has not previously filed a 28 U.S.C. § 2255 motion. (See generally CR11-2281JLR Dkt.; see also Resp. at 3.)

III. ANALYSIS

Mr. Mujahidh seeks to vacate only his conviction and sentence for unlawful possession of a firearm. (See generally Mot.) Mr. Mujahidh claims that he is "actually innocent" of this charge in light of the Supreme Court's recent decision in Rehaif v. United States, --- U.S. ---, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court held that in a prosecution for unlawful possession of a firearm under 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and at the time of that possession "he knew he belonged to the relevant category of persons barred from possessing a firearm." 139 S. Ct. at 2200. Yet, as Mr. Mujahidh correctly points out, because the Government filed his indictment and his plea agreement before the Supreme Court's decision in Rehaif, neither of these documents address the issue of Mr. Mujahidh's knowledge of his status as a felon and thus within a category of persons barred from possessing a firearm. (See generally Mot.) However, the court need not reach the issue raised in Mr. Mujahidh's motion because, as discussed below, his claim is procedurally defaulted.²

A. Standard

"The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review." Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). If a "defendant fails to raise an issue before the trial court, or presents the claim and then abandons it, and fails to include it on direct appeal" the issue is procedurally defaulted and may not be raised in a 28 U.S.C. § 2255 motion "except under unusual circumstances." Thorson v. United States, No. C18-136RSM, 2019 WL 3767132, *6 (W.D. Wash. Aug. 9, 2019) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). A defendant can overcome procedural default and have the court consider the merits of his 28 U.S.C. § 2255 claim in two ways: (1) by demonstrating both sufficient cause for the default and actual prejudice resulting from it; or (2) by demonstrating that he is actually innocent of the offense. Bousley, 523 U.S. at 622; see United States v. Frady, 456 U.S. 152, 167 (1982).

Mr. Mujahidh did not raise his claim on direct appeal. (See Resp. at 5; Mot. at 2.) As such, Mr. Mujahidh procedurally defaulted on his claim and the court may only

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// review it collaterally if the court finds both cause and prejudice or actual innocence. See Bousley, 523 U.S. at 622.

B. Cause and Prejudice

Mr. Mujahidh has not overcome his procedural default by demonstrating cause and prejudice. Mr. Mujahidh makes no serious effort to establish "cause" for failing to raise the Rahaif issue at trial or on direct appeal. (See generally Mot.) A defendant can demonstrate cause sufficient to excuse a default if he can show that an "objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Such an objective factor may be a "factual or legal basis for a claim [that] was not reasonably available to counsel." Murray, 477 U.S. at 488.

The only possible argument that Mr. Mujahidh could raise in this regard is to rely on the futility doctrine—in other words, that there was no reason for him to raise the Rehaif issue because the Ninth Circuit had previously rejected it. However, "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). Instead, "a claim that is 'so novel that its legal basis is not reasonably available to counsel' may constitute cause." Id. at 622 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)).³

The issue in Rehaif -whether the scienter requirement applied to a defendant's status under 18 U.S.C. § 922(g) and § 924(a)(2)—was not "so novel" at the time of Mr. Mujahidh's plea and sentencing so as not to have been available to his counsel. See 18 U.S.C. § 922(g); 18 U.S.C. § 924(a)(2); Bousley, 523 U.S. at 622. Although the Ninth Circuit previously rejected this claim, see United States v. Kafka, 222 F.3d 1129, 1131 (9th Cir. 2000), as the Supreme Court has clarified, this fact alone does not render the claim futile, see Bousley, 523 U.S. at 622. Indeed, the issue was litigated in federal courts across jurisdictions for many years prior to Mr. Mujahidh's indictment and guilty plea. See United States v. Butler, 637 F.3d 519, 524 (5th Cir. 2011) (collecting cases across circuits examining whether the government needed to prove the defendant's knowledge of his prohibited status to establish a violation of § 922(g)); United States v. Bryant, Nos. 11 CR 765 (RJD) & 16 CV 3423 (RJD), 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020) ("The issue decided in Rehaif was percolating in the courts for years.") (collecting cases); United States v. Wilson, No. 1:17-CR-60, 2019 WL 6606340, at *6 (W.D. Mich. Dec. 5, 2019) ("[O]ther defendants ha[ve] litigated the issue of whether a defendant's knowledge of his status was a required element for a conviction under § 922(g)."). Thus, Mr. Mujahidh has failed to demonstrate that the legal basis for his Rehaif claim was not reasonably available to his trial counsel at the time of his plea. See Bousley, 523 U.S. at 622. Because Mr. Mujahidh did not have cause to excuse his

// procedural default, he cannot overcome it. See United States v. Frady, 456 U.S. at 168 (holding that a defendant must show both cause and actual prejudice).

The Government also argues that Mr. Mujahidh cannot establish prejudice because the sentence at issue is the shortest of the concurrent sentences the court imposed.⁴ (See Resp. at 5-6.) The concept the Government advances is known as "the concurrent sentence doctrine." This doctrine "provides the court with discretion not to reach the merits of a claim attacking fewer than all multiple concurrent sentences if success on the claim would not have any collateral consequences or change the term of imprisonment." United States v. Beckham, 202 F. Supp. 3d 1197, 1201 (E.D. Wash. 2016) (citing Benton v. Maryland, 395 U.S. 784 (1969)). However, the Government's argument, that Mr. Mujahidh faces no prejudice because the sentence he seeks to vacate is the shortest of multiple concurrent sentences was explicitly rejected by the Ninth Circuit more than 35 years ago. See United States v. DeBright, 730 F.2d 1255, 1260 (9th Cir. 1984) ("We reject the use of the concurrent sentence doctrine as a discretionary means of avoiding the review of criminal convictions."); see also United States v. Brooks, 772 F.3d 1161, 1172, n.6 (9th Cir. 2014). In rejecting the concurrent sentence doctrine, the Ninth Circuit expressed "serious doubts . . . about [its] ability to ascertain all the adverse collateral legal consequences of unreviewed convictions." DeBright, 730 F.2d at 1258.⁵

Despite the Government's failure to demonstrate that Mr. Mujahidh did not suffer "prejudice," the court is satisfied—as discussed above—the Mr. Mujahidh cannot demonstrate "cause." Thus, because Mr. Mujahidh fails to demonstrate both "cause" and 'prejudice," he fails to overcome his procedural default on this basis.

C. Actual Innocence

Mr. Mujahidh likewise cannot overcome his procedural default by a showing of actual innocence. "In cases where the Government has foregone more serious charges in the course of plea bargaining, [the] petitioner's showing of actual innocence must also extend to those [more serious] charges." Bousley, 523 U.S. at 624; see also Vosgien v. Persson, 742 F.3d 1131, 1135 (9th Cir. 2014). The Government in this...