Perez Perez v. United States

1

ERICK ORLANDO PEREZ PEREZ, Defendant-Petitioner, v. UNITED STATES OF AMERICA, Plaintiff-Respondent.

No. C20-945RSL

United States District Court, W.D. Washington, Seattle

November 22, 2021

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 Erick Orlando Perez Perez moves to vacate, set aside, or correct his sentence under 18 U.S.C. § 922(g). Dkt. # 1.^[1] The Court has considered the parties' memoranda, the exhibits, and the remainder of the record.^[2] For the following reasons, the petition is denied.

I. BACKGROUND

On August 9, 2017, petitioner entered a guilty plea to the following charges:

Count 1: Possession of Methamphetamine with Intent to Distribute, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A) and Title 18, United States Code, Section 2.

Count 2: Alien in Possession of a Firearm, in violation of Title 18, United States Code, Section 922(g)(5)(A).

CR Dkt. # 25 at 1-2. The Court imposed 132 months of imprisonment on Count 1 and 120 months of imprisonment on Count 2. CR Dkt. # 44 at 2. As part of petitioner's plea agreement, he 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 # 25 at 12. Petitioner did not appeal his conviction or sentence. See generally CR Dkt.

Petitioner's PSR notes that, at the time of his arrest, petitioner was detained by immigration authorities at the Northwest Detention Center. PSR ¶ 9. The PSR also reflects that in 2009, petitioner was convicted of conspiracy to possess with intent to distribute marijuana, for which he was sentenced to 30 months of imprisonment. PSR ¶ 25. This conviction represents an aggravated felony that rendered petitioner inadmissible. See 8 U.S.C. § 1101(a)(43) (defining “aggravated felony”); 8 U.S.C. § 1182(a)(9) (providing that aliens convicted of aggravated felonies are inadmissible). Petitioner was deported in 2010 and convicted of illegal entry on August 4, 2011. PSR ¶ 26.

On June 19, 2020, petitioner filed a 28 U.S.C. § 2255 motion to vacate his conviction for Alien 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). Dkt. # 1. Petitioner argues that because the Court failed to advise him of the element requiring knowledge of his prohibited status under § 922(g) pursuant to Rehaif, that his 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). Dkt. # 1 at 3.

II. DISCUSSION

A. Timeliness

The government concedes that petitioner's motion is timely. Dkt. # 7 at 4. 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 an alien-in-possession conviction under 18 U.S.C. § 922(g) requires proof the defendant knew of his prohibited status as an alien illegally present in the United States. 139 S.Ct. at 2194.^[3] The government agrees that Rehaif applies retroactively to cases on collateral review. Dkt. # 7 at 4-5 (citing Welch v. United States, 136 S.Ct. 1257, 1264-66 (2016)). Because petitioner's § 2255 motion was filed within one year of the Rehaif decision, his Rehaif-based claim is timely. 28 U.S.C. § 2255(f)(3).^[4]

B. Concurrent-Sentence Doctrine

The concurrent-sentence doctrine provides courts 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. See Benton v. Maryland, 395 U.S. 784, 791 (1969). The government argues that the doctrine applies here because even if the Court were to vacate petitioner's alien-in-possession conviction, he will remain subject to a 132-month narcotics conviction. Dkt. # 7 at 2.

The Court declines to apply the concurrent-sentence doctrine in this case. The Ninth Circuit has rejected the use of the concurrent-sentence doctrine as a means of avoiding review of criminal convictions on direct appeal. United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc); see also Cruickshank v. United States, 505 F.Supp.3d 1127, 1131 (W.D. Wash. 2020)). In De Bright, the Ninth Circuit reasoned it “[could not] conclude in good conscience that [it] possessed] the ability to predict with sufficient certainty all the adverse collateral legal consequences of unreviewed convictions” and thus the collateral-sentence doctrine is “unfair to defendants and inappropriate in our criminal justice system.” 730 F.2d at 1259. In Cruickshank, this District extended the Ninth Circuit's reasoning in De Bright to the § 2255 context and declined to apply the concurrent-sentence doctrine. 505 F.Supp.3d at 1131. Likewise, this Court is persuaded that the Ninth Circuit's reasoning in De Bright applies in the § 2255 context and declines to dismiss petitioner's motion under the concurrent-sentence doctrine. See id.

C. Collateral Attack Waiver

The government's argument that petitioner waived his right to collaterally attack his conviction is unpersuasive because he 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); Irvis v. United States, No. C20-954TSZ, 2021 WL 606359, *1 (W.D. Wash. Jan. 11, 2021) (concluding that the government's collateral attack waiver argument was unpersuasive and relying upon Portillo-Cano); Dkt. # 7 at 3, 7-8; Dkt. # 10 at 2-3.

D. 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). Petitioner'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, 2021 WL 606359, at *2. To overcome procedural default, petitioner 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 petitioner can establish cause to excuse procedural default but concludes that he cannot demonstrate actual prejudice. See Irvis, 2021 WL 606359, at *2. To demonstrate actual prejudice to overcome procedural default, petitioner 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, petitioner 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, integrity, or public reputation of judicial proceedings. United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). As petitioner's case is a collateral attack, the standard is “significantly higher” than plain error-the petitioner must show “cause and actual prejudice.” Frady, 456 U.S. at 167. Therefore, if petitioner's claim would not constitute reversible plain error, he necessarily cannot show actual prejudice.

In United States v. Benamor, the Ninth Circuit reviewed a Rehaif error at trial on direct appeal from a felon-in-possession conviction, where the defendant had previously been convicted of felon-in-possession charges for which he served prison sentences of more than one year. 937 F.3d at 1189. The Ninth Circuit held that the prior felon-in-possession convictions proved beyond a reasonable doubt that the defendant had knowledge of prohibited status as required by Rehaif and that any error in not instructing the jury to make such a finding did not affect the defendant's substantial rights or the fairness integrity, or public reputation of the trial. Id. The Ninth Circuit relied upon Benamor in United States v. Singh, which reviewed a Rehaif error at trial on direct appeal from an alien-in-possession conviction. 979 F.3d 697, 729 (9th Cir. 2020) (citing Benamor), cert. denied sub nom Matsura v. United States, 141 S.Ct. 2671 (May 24, 2021). Where the defendant did not contest any of the testimony regarding his status of being admitted to the United States under a nonimmigrant visa, the Ninth Circuit...