United States v. Myers

UNITED STATES of AMERICA PLAINTIFF/RESPONDENT v. JAMES DWAYNE MYERS DEFENDANT/MOVANT

No. 5:16-CR-50055

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

June 9, 2021

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

On March 22, 2021, the Defendant/Movant James Myers (hereinafter "Defendant") filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence. (ECF No. 52). The Government filed its Response on April 20, 2021. (ECF No. 55). Defendant did not reply and his § 2255 motion is now ripe for consideration. This Court finds that an evidentiary hearing is unnecessary, Engelen v United States, 68 F.3d 238, 240 (8th Cir. 1995), and thus, issues the following Report and Recommendation.

I. Background

On November 16, 2016, Defendant was indicted on two counts of knowingly and intentionally distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and one count of felon in possession of a firearm in violation of 21 U.S.C. §§ 922(g)(1), 924(a)(2). (ECF No. 1). On February 2, 2017, Defendant appeared with appointed counsel before the U.S. Magistrate Judge Erin L. Setser who recommended the district court accept Defendant's proffered plea of guilty to Count III (violation of §§ 922(g) and 924(a)(1)) and tentatively approve Defendant's written plea agreement. (ECF No. 15). United States District Judge Timothy L. Brooks adopted the Report and Recommendation on February 3, 2017. (ECF No. 16). On June 14, 2017, Defendant appeared for sentencing before U.S. District Judge Robert T. Dawson at which time the Court accepted Defendant's plea agreement and sentenced Defendant as an armed career criminal to 188 months' imprisonment. See 21 U.S.C. § 924(e)(1); (ECF No. 30).

On June 26, 2017, Defendant appealed his conviction and sentence to the Court of Appeals for the Eighth Circuit, arguing that two of his prior felony convictions - first-degree terroristic threatening and second-degree battery - should not be counted as violent felonies under 21 U.S.C. § 924(e)(1), the Armed Career Criminal Act ("ACCA"), for purposes of sentencing. (ECF No. 33). After a de novo review, Defendant's sentence was affirmed on July 23, 2018. (ECF No. 41). Defendant subsequently filed a Petition for Writ of Certiorari which was granted, and the U.S. Supreme Court, on May 13, 2019, vacated the decision of the circuit court and remanded for further consideration. (ECF No. 45). On remand, the Court of Appeals considered Defendant's ACCA argument a second time, once again affirming Defendant's sentence on July 2, 2019. (ECF No. 46). A second Petition for Writ of Certiorari was denied by the Supreme Court. (ECF No. 50).

On March 22, 2021, Defendant filed the instant pro se Motion to Vacate under 28 U.S.C. § 2255, asserting two grounds for relief. First, Defendant says his 2017 "guilty plea is invalid as it was entered unknowingly and unintelligently," citing the United States Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019) ("Rehaif"). Second, Defendant alleges that, at the time of sentencing, the district court did not consider the "question of jury unanimity" and thus, did not "properly apply the divisibility analysis as prescribed in Mathis. . . ." Defendant's reference is to the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016).

The Government responds that Defendant's first ground for relief pursuant to Rehaif isprocedurally defaulted and that Defendant cannot establish actual innocence; alternatively, the Government argues counsel's performance was not constitutionally deficient under the test employed by Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to Defendant's second ground for relief, the Government points out that the divisibility analysis and/or jury unanimity was an inherent part of Defendant's appeals' process and cannot now be re-litigated under § 2255.

II. Discussion

A. Rehaif & Defendant's Procedural Default

A federal prisoner may challenge his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. While Defendant's pro se § 2255 motion is construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), Defendant "bears the burden of showing that he is entitled to relief." Walker v. United States, 900 F.3d 1012, 1015 (8^th Cir. 2018). Because habeas relief is an extraordinary remedy, it will not be allowed to serve as an appeal and significant barriers exist in the path of a petitioner who seeks to raise an argument collaterally which was not raised on direct review. See United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001)(citing Bousley v. United States, 523 U.S. 614, 621, (1998)), cert. denied, 534 U.S. 1097 (2002). "More specifically, a claim unraised on direct appeal is procedurally defaulted unless a petitioner can demonstrate (1) cause for the default and actual prejudice or (2) actual innocence." Id.; see also Swedzinski v. United States, 160 F.3d 498, 500 (8th Cir. 1998)(where issue is raised for the first time in a § 2255 motion and petitioner did not raise the issue at trial or on direct appeal, the issue is procedurally defaulted), cert. denied, 528 U.S. 846 (1999).

In Rehaif, the Supreme Court explained that in a prosecution pursuant to § 922(g), the Government is required to prove, inter alia, that defendant knew he belonged to the category ofpersons barred from possessing a firearm. Rehaif, 139 S.Ct. at 2196. Here, Defendant maintains he was never apprised of that element - i.e., scienter or knowledge-of-prohibited-status as a felon - and therefore, his guilty plea was not knowingly entered. Defendant did not raise this argument before the district court or in his appeal to the Eighth Circuit and thus, this issue is procedurally defaulted. Silk v. United States, 955 F.3d 681 (8^th Cir. 2020). The Supreme Court did not announce a new constitutional right or rule in Rehaif but instead clarified what the Government must establish to support a conviction under § 922(g). See United States v. Coleman, 961 F.3d 1024, 1026 (2020). Even had the Court announced a new constitutional right, there is nothing to suggest that it is retroactively applicable to cases on collateral review. Because Defendant failed to raise his Rehaif claim on direct appeal, to pursue it now he must show either (1) cause for the procedural default plus actual prejudice or (2) actual innocence. Jennings v. United States, 696 F.3d 759, 764 (8^th Cir. 2012) (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (explaining that a claim that a plea was involuntary and unknowing is procedurally defaulted on collateral review if the issue was not first raised on direct appeal).

A defendant must illustrate a "cause that excuses the default." Matthews v. United States, 114 F.3d 112, 113 (8^th Cir. 1997). Defendant has not identified any external impediment for failing to raise this claim. Had Defendant suggested to the Court that the "novel" exception¹ to the futility doctrine was applicable to his situation, the Eighth Circuit foreclosed this argument in its previous consideration of the issue. See United States v. Thomas, 615 F.3d 895, 899 (8th Cir. 2010) ("[I]t is well settled in this circuit that the government need only prove defendant's status as a convictedfelon and knowing possession of the firearm.") In the absence of any argument of cause or external impediment that prevented Defendant from raising this issue with the district court or on direct appeal, the Court not need consider the issue of actual prejudice. See Ashker v. Class, 152 F.3d 863, 871 (8th Cir. 1998). Even assuming, arguendo, that Defendant successfully could illustrate cause for the default, it is unlikely Defendant could demonstrate probability that, but for the error, he would not have entered a plea of guilty.

A procedural default also may be excused with a threshold showing that Defendant is "actually innocent." Bousley, supra. In other words, if Defendant persuades the court "that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995). Here, Defendant's argument is more akin to legal innocence as opposed to factual innocence as it is undisputed Defendant had multiple felony convictions, more than one of which required incarceration in excess of one year at the time Defendant entered his 2017 guilty plea to the § 922(g) count of the Indictment. See Anderson v. United States, 25 F.23d 704, 7070 (8th Cir. 1994). Thus, the central issue in Rehaif - "that of the government's burden of proving that the defendant knows his status" - is inapplicable here. See Rehaif, 139 S.Ct. at 200; see also Final Presentence Investigation Report (ECF No. 32). Defendant's criminal history "would undoubtedly have provided sufficient evidence" to prove knowledge of his § 922(g) felon status at the time he committed this offense, and while Defendant objected to being classified as an armed career criminal for purposes of sentencing, Defendant did not object to the recitation of his actual criminal history in Paragraphs 51-74 of the initial Presentence Investigation Report or the calculation of the criminal history score of 18. See United States v. Caudle, 968 F.3d 916, 922 (8th Cir. 2020); see alsoPresentence Investigation Report (ECF No. 18) and Defendant's Objections to PSIR. (ECF No. 21). The knowledge requirement of Rehaif "can be inferred from circumstantial evidence," Rehaif, 139 S. Ct. at 2198, and as the Court noted in Mackins v. United States, 2021 WL 409965 (E.D. Mo., Feb. 5, 2021) when addressing a similar issue, "[a]ny notion that Defendant was somehow unaware of his status as a convicted felon is patently implausible." The Eighth Circuit has recognized that the "lack of a plausible ignorance defense means that any...