Nunez v. United States

OSCAR NUNEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:14-cr-00130-JAW-1

United States District Court, D. Maine

November 22, 2021

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

The Magistrate Judge reviewed Petitioner's motion to vacate set aside, or correct his sentence pursuant to 28 U.S.C § 2255 and recommended that the Court (1) deny Petitioner's motion for habeas relief under 28 U.S.C § 2255; (2) dismiss Petitioner's motion; and (3) deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases. The Court reviewed Petitioner's objections and concludes, as the Magistrate Judge did, that the Petitioner was not prejudiced as a result of any Rehaif error at the time of his initial plea nor has he demonstrated evidence of factual innocence that would entitle him to postconviction relief. The Court therefore affirms the Magistrate Judge's Recommended Decision for the reasons in that decision and set forth in this affirmance.

I. BACKGROUND

A. Factual Background

1. 2008 State Conviction

On April 28, 2008, Mr. Nunez entered a guilty plea to one count of Criminal Sale of a Controlled Substance in the Fifth Degree under New York state law, a Class D felony. Suppl. Mem. in Supp. of Gov't's Resp. to Pet'r's Pro Se 28 U.S.C. § 2255 Pet. and Mot. for Summ. Dismissal, Attach. 1, New York v. Nunez Plea Tr., at 3:14-18 (ECF No. 71) (Plea Tr.). The charge carried with it a minimum sentence of one year, and a maximum sentence of four and a half years, with the Court agreeing to impose a definite sentence of nine months' imprisonment. Id. at 5:11-18. Before Mr. Nunez entered a guilty plea, the New York Court expressly warned Mr. Nunez that “[t]his [was] a felony.” Id. at 6:14-20.

2. 2015 Federal Conviction

On January 20, 2015, Mr. Nunez was charged by information in the District of Maine with one count of possessing a firearm after having been charged with a crime punishable by imprisonment of more than one year, a violation of 18 U.S.C. § 922(g). Information (ECF No. 2). On January 20, 2015, Mr. Nunez formally waived indictment, Waiver of Indictment (ECF No. 1), and pleaded guilty to the offense. Min. Entry (ECF No. 11). The information alleged that Mr. Nunez had been convicted under New York law on April 28, 2008, of Criminal Sale of a Controlled Substance, that this prior conviction was punishable by imprisonment for a term of more than one year, and that on July 23, 2012, he possessed in the District of Maine a Hi-Point .380 semi-automatic pistol. Information at 1. On November 12, 2015, the Court sentenced Mr. Nunez to eighty-two months imprisonment and three years' supervised release. Min. Entry (ECF No. 40). Mr. Nunez subsequently appealed his sentence to the First Circuit Court of Appeals. Notice of Appeal (ECF No. 44). On March 29, 2017, the First Circuit affirmed. United States v. Nunez, 852 F.3d 141 (1st Cir. 2017).

B. Procedural Background

On March 25, 2020, Mr. Nunez filed a pro se motion to vacate, correct, or set aside his conviction under 28 U.S.C. § 2255, and requested an evidentiary hearing. Mot. to Vacate Conviction & Sentence and Appointment of Counsel Pursuant to 28 USC 2255 & Writ of audita Querella, Rule 60(B) (ECF No. 54) (Pet'r's Mot.). Upon reviewing the record, the Magistrate Judge ordered the Government to file an answer, Order to Answer (ECF No. 56), which it did on September 11, 2020. Gov't's Resp. to Pet'r's Pro Se 28 U.S.C. § 2255 Pet. and Mot. for Summ. Dismissal (ECF No. 69) (Gov't's Opp'n). On October 20, 2020, Mr. Nunez filed a reply to the Government's response. (Pro Se) Nunez' Reply to the Gov't's 28 U.S.C. § 2255 Response (ECF No. 70) (Pet'r's Reply). On October 28, 2020, the Government filed a supplemental memorandum in support of its initial answer. Suppl. Mem. in Supp. of Gov't's Resp. to Pet'r's Pro Se 28 U.S.C. § 2255 Pet. and Mot. for Summ. Dismissal (ECF No. 71) (Gov't's Suppl.).

On February 17, 2021, the Magistrate Judge issued a Recommended Decision, recommending that the Court dismiss Mr. Nunez's motion. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 72) (Recommended Decision). Mr. Nunez filed an objection^[1] to the Recommended Decision on April 16, 2021. (Pro Se) Mot. for Recons. Under Rule 60(1) or (6) to Toll the (14) Days to “Object” to the Magistrate's Feb. 17, 21, Recommendation and Grant to “Stay” Nunez' “Rehaif” Litigation In “Abeyance” Until the Supreme Court Decides United States-v-Gary #20-444 (2020) (ECF. No. 106); Alternative: Construe This Said Caption as a “Notice of Appeal (NOA).” (ECF No. 73) (Pet'r's Obj.). The Government responded to Mr. Nunez's objection on May 7, 2021. Gov't's Resp. to Pet'r's Pro Se Mot. for Recons. Regarding R. & R. Decision of Magistrate Judge and to Extend Time to File Objs. (ECF No. 74) (Gov't's Opp'n to Pet'r's Obj.).

II. THE PARTIES' POSITIONS

A. Oscar Nunez's 28 U.S.C. § 2255 Motion

In his initial motion, Mr. Nunez makes three arguments. First, relying on the Supreme Court's 2019 decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), Mr. Nunez argues that “[a]t no time did [he] ‘know' that [because of] his status as a N.Y. state convicted felon, he was prohibited federally from possessing a firearm.” Pet'r's Mot. at 2. “In the absence of this [“prohibited-status element”] being charged, or ple[d] in said charging documents, Petitioner is ‘actually innocent' of said offense and his sentence and conviction contain a ‘jurisdictional defect' that must be corrected.” Id. at 2.

Second, Mr. Nunez argues that under 18 U.S.C. § 921(a)(2), which “governs what constitutes a felony for purposes of 922(g) application, liability, & prosecution, ” his rights as a New York citizen, including his Second Amendment rights, were restored upon the expiration of his sentence for the New York state drug conviction. Id. at 3-4. Mr. Nunez argues that the “clear unambiguous import of this state statute is that, at the time of Petitioner's release from state custody on the state felony used to support the 922(g) [conviction] . . . he was not in fact, a prior felon, nor did he have a prior felony conviction for purposes of 922(g) jurisdiction prosecution or conviction.” Id. Mr. Nunez asserts that he was “completely unaware that he was prohibited from exercising his 2nd Amendment Constitutional right to possess a firearm in the state of [M]ain[e] (federally) based on a prior N.Y. state conviction.” Id. at 5. Mr. Nunez concludes that what happened in Rehaif “is exactly what happened to Petitioner” because “his civil rights were automatically restored, under N.Y. Law and at no point in time was he ever told he was prohibited from possessing a firearm.” Id. at 4.

Finally, Mr. Nunez argues that the Court has the authority to vacate his conviction and sentence under Section 2255, a writ of Audita Querela, or Rule 60(B). Id. at 6-7.

B. The Government's Response

The Government first argues that “Petitioner's attack on the sufficiency of the charging document for failing to allege his knowledge that his status as a convicted felon prohibited from possessing a firearm is untimely, procedurally defaulted, and meritless.” Gov't's Opp'n at 10. The Government asserts that Rehaif stands for the proposition that the Government must prove a defendant “knew he belonged to the relevant category of person barred from possessing a firearm, ” not that the Government must “prove [that] a defendant knew he was legally prohibited from possessing a firearm.” Id. (citing Rehaif). Thus, the Government argues, it must only “establish Petitioner's knowledge at the time he possessed the firearm that he was previously convicted of an offense punishable by more than one year in prison.” Id. at 10. Additionally, “[t]he Supreme Court recognized no right in Rehaif regarding a defendant's knowledge that he was prohibited from possessing a firearm.” Id.

The Government further asserts that Mr. Nunez's claim is defaulted because Mr. Nunez failed to raise this argument when he pleaded guilty, before or at sentencing, or on appeal. The Government urges that the claim is defaulted as Mr. Nunez has not demonstrated any “actual innocence” allowing him to raise this issue now. Id. at 11, 13. Finally, even if the claim was not defaulted, Mr. Nunez “does not aver or demonstrate ignorance as to the collateral matter of his ‘status as a N.Y. state convicted felon.'” Id. at 12.

In response to Mr. Nunez's “claim that he was not in fact prohibited from possessing a firearm because his civil rights had been restored, ” id. at 13, the Government argues that “Rehaif should not be read to require the Government to prove that the Petitioner knew that his civil rights had not been restored after entry of his otherwise-disqualifying conviction.” Id. at 15. The Government further argues that Mr. Nunez's “civil rights have not been restored within the meaning of 18 U.S.C. § 921(a)(20)” because Mr. Nunez's right to serve on a jury has not been restored nor did he receive any type of clemency. Id. at 17.

C. Oscar Nunez's Reply

In reply, Mr. Nunez states that “the Supreme Court Justices opinion [in Rehaif] was crystal clear that to convict a defendant under the lawful firearm possession statute . . . the Government must prove that the defendant knew he belonged to the relevant class of persons barred from possessing firearms, basically deprived of exercising his [S]econd [A]mendment.” Pet'r's Reply at 1.

Mr Nunez first contends that it is a fundamental principal of due process that he understand the “essential elements” of the offense at the time a plea is entered. Id. at 1-2. However, at the time of his plea “no one in the courtroom, including Nunez,...