United States v. Pollard, No. 20-15958 (9th Cir. 2021)
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In 2017, Pollard was indicted for possessing a gun as a felon, 18 U.S.C. 922(g)(1). Over the previous 20 years, he had been convicted of several felonies and served over five years in prison, including for a 2004 violation of California’s felon-in-possession statute. Pollard pled guilty. He was sentenced to 57 months and did not appeal.
A year later, the Supreme Court decided “Rehaif,” holding that section 922(g)(1) requires the government to prove that the defendant knew he was a felon at the time of possession. Pollard moved to vacate his conviction and sentence under 28 U.S.C. 2255(a), contending that his guilty plea was not intelligent, knowing, or voluntary without having been informed of section 922(g)(1)’s knowledge-of-status element. The Ninth Circuit affirmed the denial of Pollard’s motion because he had not shown actual prejudice and failed to overcome the procedurally defaulted nature of his claim.
Court Description: 28 U.S.C. § 2255. The panel affirmed the district court’s denial of Tyrone Pollard, Jr.’s 28 U.S.C. § 2255 motion in which he challenged his felon-in-possession guilty plea on the ground that he was not informed of 18 U.S.C. § 922(g)(1)’s knowledge-of-status element. Pollard filed the motion after the Supreme Court in Rehaif v. United States, 139 S. Ct. 2191 (2019), held that § 922(g)(1) requires the government to prove that the defendant knew he was a felon at the time of possession. The district court denied the motion because Pollard had not shown actual prejudice and thus failed to overcome the procedurally defaulted nature of his claim. The panel held that Pollard failed to show cause for not raising his claim during the underlying criminal proceedings as it was reasonably available to him at the time he pled guilty. Explaining that novelty and futility are not the same, the panel wrote that futility is insufficient to overcome procedural default. The panel wrote that Pollard’s knowledge-of-status argument was reasonably available to him at the time he pled guilty because the Federal Reporters were replete with cases raising the same argument. Thus, Pollard did not show cause for the procedural default. UNITED STATES V. POLLARD 3 The panel held that Pollard also failed to show actual prejudice from any error as nothing in the record objectively demonstrates that he would not have pled guilty had he known of § 922(g)(1)’s knowledge-of-status element. Concurring in part and concurring in the judgment, Judge Forrest wrote that there is no need to address the cause prong of the procedural-default analysis because Pollard cannot meet the prejudice prong. She also disagreed that Supreme Court precedent dictates the majority’s broad futility-can-never-be-cause rule.
The court issued a subsequent related opinion or order on December 21, 2021.
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