United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY
Stanley A. Bastian United States District Judge.
the Court is Defendant's Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, ECF No. 139. The motion was considered
without oral argument. Defendant argues that he is entitled
to habeas relief in light of the Supreme Court's holding
in Rehaif v. United States, __ U.S. __, 139 S.Ct.
2191 (2019). Having considered the motion and the relevant
caselaw, the Court denies the motion.
was arrested, indicted, and convicted of two counts of felon
in possession of a firearm in 2006. ECF No. 139-3. Defendant
alleges that he was tricked into trying to sell a firearm to
his girlfriend's brother, a Yakama Nation police officer.
Id. Defendant was sentenced to 210 months
imprisonment pursuant to a sentencing enhancement under the
Armed Career Criminals Act (ACCA) based on offenses in 1994
and 1996. Defendant appealed his conviction on the grounds
that the ACCA sentencing enhancement should not have been
applied, but the appeal was denied. ECF No. 139. A petition
for writ of certiorari to the Supreme Court was also denied.
then, Defendant has filed or attempted to file several
federal habeas petitions under § 2255. In July 2008,
Defendant filed a § 2255 based on the Supreme
Court's holding in District of Columbia v.
Heller, 554 U.S. 570 (2008). In that motion, Defendant
argued that he was entitled to relief because the
Heller Court recognized a Second Amendment right to
bear arms in one's home. ECF No. 120. The Court denied
the motion on grounds that the Heller Court
explicitly recognized that the federal government could
constitutionally prohibited felons from possessing firearms.
ECF No. 124. And in February 2017, the Ninth Circuit denied
Defendant's application to file a second or successive
§ 2255 motion based on the Supreme Court's holding
in United States v. Johnson, 135 S.Ct. 2251 (2015).
ECF No. 138. The Ninth Circuit reasoned that Defendant's
sentence was not entitled to review because the sentencing
enhancements made in Defendant's sentence were
“serious drug offenses” under ACCA and therefore
Johnson was inapplicable. Id.
28 U.S.C. § 2255, a federal prisoner in custody under
sentence may move the court that imposed the sentence to
vacate, set aside, or correct the sentence on the ground
(1) the sentence was imposed in violation of the Constitution
or laws of the United States;
(2) the court was without jurisdiction to impose such
(3) the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). When reviewing a § 2255
motion, courts apply a harmless error standard. United
States v. Montalvo, 331 F.3d 1052, 1057 (9th Cir. 2003)
(holding that the harmless error standard applies to habeas
cases brought under § 2255). Under Brecht, a
constitutional error does not require reversal of conviction
unless the petitioner can show that the error was of such
magnitude as to have a substantial and injurious effect or
influence on the guilty plea or the jury's verdict.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
the Antiterrorism and Effective Death Penalty Act (AEDPA)
places restrictions on a prisoner's ability to file
§ 2255 motions. AEDPA bars second or successive §
2255 petitions unless approved by a U.S. Court of Appeals. 28
U.S.C. § 2255(h). If a petitioner fails to secure
approval to file a second or successive habeas petition, the
motion must be denied unless it falls within one of two
exceptions. Id. First, a successive petition based
on a new rule of constitutional law made retroactively
applicable by the Supreme Court is not automatically barred
by AEDPA. Id. Second, a successive petition based on
newly discovered facts that could not have been discovered
with due diligence and would give reasonable factfinders
grounds to reach a different conclusion is not automatically
barred by AEDPA. Id.
present motion, Defendant argues that the district court
erred in two ways. First, Defendant argues the Court erred
when it sentenced him under § 922(g) because the
Government failed to prove that he knew he belonged to a
category of persons barred from possessing a firearm. Citing
Rehaif, Defendant argues that he was not aware that
his prior drug convictions made it so that he could not
lawfully possess a firearm. Second, Defendant again argues
the Court erred when it applied the ACCA enhancement when the