O'Kelly v. USA, No. 1:2019cv00322 - Document 2 (E.D. Tenn. 2020)
Court Description: MEMORANDUM OPINION. It is therefore ORDERED that the Motion to Vacate will be DENIED. A certificate of appealability from the denial will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/23/2020. (AML) Mailed to Tristan O'Kelley
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O&#039;Kelly v. USA Doc. 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA TRISTIAN O’KELLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) No. 1:19-cv-322, 1:17-cr-16 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION Before the Court is Petitioner Tristian O’Kelley’s Motion to Vacate under 28 U.S.C. § 2255 [No. 1:19-cv-322, Doc. 1; No. 1:17-cr-16, Doc. 38]. Petitioner argues that in light of Rehaif v. United States, 139 S. Ct. 2191 (20 19), he is actually innocent of possessing a firearm as a felon an d his indictm ent was defective. Because it plainly appears on the face of the record that Petitioner is not entitled to any relief, the Court finds there is no need for an evidentiary hearing 1 and the Motion to Vacate under 28 U.S.C. § 2255 [No. 1:19-cv322, Doc. 1; No. 1:17-cr-16, Doc. 38] will be D EN IED . I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On J anuary 24, 20 17, a grand jury charged Tristian O’Kelley with possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Without the benefit of a written plea agreem ent, O’Kelley pleaded guilty to the charge. He subm itted a Factual Basis for Plea, in which he stipulated that law enforcem ent executed a warrant on his residence an d 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prison er is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petition er is entitled to no relief,” a hearing is not required. Arredondo v . United States, 178 F.3d 778 , 78 2 (6th Cir. 1999) (citation om itted). Dockets.Justia.com found three firearm s, of which he claim ed possession. [Crim . Doc. 13]. He further stipulated: “Prior to Septem ber 30 , 20 16, the defendant was a convicted felon. The defendant has convictions for at least the following: (1) Possession of Cocain e for Resale; (2) Possession of Marijuana for Resale.” [Id. at 3]. On October 17, 20 17, the Court sentenced O’Kelley to 120 m onths’ im prisonm ent, followed by three years of supervised release. [Crim . Doc. 24]. O’Kelley appealed. [Crim . Doc. 27]. On J une 26, 20 18, the United States Court of Appeals for the Sixth Circuit affirm ed O’Kelley’s conviction and senten ce. [Crim . Doc. 34]. O’Kelley did not file a petition for a writ of certiorari, and the judgm ent therefore becam e final ninety days later, on Septem ber 24, 20 18 . See Clay v. United States, 537 U.S. 522, 525 (20 0 3) (judgm ent final after tim e for filing a certiorari petition expires). On Novem ber 12, 20 19, Petitioner filed a Motion to Vacate Under 28 U.S.C. § 2255. [Crim . Doc. 38; Doc. 1]. Petitioner argues that in light of the Suprem e Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (20 19), he is actually innocent of knowingly possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He further argues that his indictm ent was defective for failing to allege knowledge of his status as a felon. He contends Rehaif is retroactively applicable on collateral attack and therefore his m otion to vacate is tim ely. II. STAN D ARD OF REVIEW After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those 2 of constitutional or jurisdictional m agnitude, or those containing factual or legal errors “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 68 6, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). Pursuant to Rule 4(b) of the Rules Governing § 2255 Cases, the Court m ust “prom ptly exam ine” a m otion to vacate and dism iss the m otion if it “plainly appears from the m otion, any attached exhibits, and the record of prior proceedings that the m oving party is not entitled to relief.” Rule 4(b); see also Robinson v. United States, 582 F. Supp. 2d 919, 925 (N.D. Ohio 20 0 8) (Rule 4 requires the court to sua sponte dism iss a § 2255 petition without ordering a responsive pleading if petitioner is plainly not entitled to relief). “[S]um m ary theories and generalized claim s do not survive screening.” United States v. Andrade-Guerrero, No. 2:15-cr-18, 20 17 WL 1367183, *2 (E.D. Ky. March 17, 20 17); see United States v. Thom as, 221 F.3d at 430 , 437 (3rd Cir. 20 0 0 ) (vague and conclusory allegations in § 2255 petition m ay be sum m arily disposed of). III. AN ALYSIS Petitioner m oves to vacate his conviction under § 2255, arguing that the Suprem e Court’s decision in Rehaif changed the elem ents of a § 922(g)(1) offense, rendering his conviction invalid. He also argues that the indictm ent did not charge knowledge of his status as a felon and thus does not allege an offense under § 922(g)(1). According to Petitioner, this also renders his plea invalid as he was m isinform ed of the elem ents of the offense to which he pleaded guilty. He also challenges the Court’s jurisdiction based on the defective indictm ent. Section § 2255(f) gives a federal defen dant one year to file a m otion to vacate. That tim e period begins from the latest of: (1) the date on which the judgm ent of conviction becom es final; 3 (2) the date on which the im pedim ent to m aking a m otion created by governm ental action in violation of the Constitution or laws of the United States is rem oved, if the m ovant was prevented from m aking a m otion by such governm ental action; (3) the date on which the right asserted was initially recognized by the Suprem e Court, if that right has been newly recognized by the Suprem e Court and m ade retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claim s presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Petitioner contends his m otion is tim ely because Rehaif announced a newlyrecognized right m ade retroactively applicable to cases on collateral review. He does not allege his m otion is otherwise tim ely. In Rehaif, the Suprem e Court held that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Governm ent m ust prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm . Rehaif v. United States, 139 S. Ct. at 220 0 (20 19). Notably, Rehaif involved a defendant who went to trial and denied knowledge that he was an alien unlawfully in the United States, thus prohibited from possessing a firearm . Rehaif does not ren der Petitioner’s m otion tim ely because it m erely “clarified” the felon-in-possession statute; it did not announce a new rule of constitutional law that is retroactive on collateral review. Kham isi-El v. United States, 8 0 0 F. App’x 344, 349 (6th Cir. 20 20 ). In Kham isi-El, the petitioner sought to am end his § 2255 petition to add a challenge to his felon-in-possession conviction based on Rehaif. Id. at 348. In an 4 unpublished opinion, the Sixth Circuit denied the m otion, 2 holding “[t]he rule stated in Rehaif is a m atter of statutory interpretation, not a ‘new rule of constitutional law.’” Id.; In re Palacios, 931 F.3d 1314 (11th Cir. 20 19) (“Rehaif… did not announce a ‘new rule of constitutional law….’”). District courts within the Sixth Circuit have alm ost uniform ly held that Rehaif is not applicable to cases on collateral review. See Moore v. United States, No. 2:19-cv-2572, 20 19 WL 4394755 (W.D. Tenn. Sept. 12, 20 19) (“Rehaif did not an nounce a new rule of constitutional law m ade retroactive to cases on collateral review.”); United States v. Goodjohn, Case No. 3:18 -cr-53, 20 20 WL 5210 947 (S.D. Ohio Sept. 1, 20 20 ) (sam e); W allace v. United States, No. 3:19-cv-0 1122, 20 20 WL 21940 0 2 (M.D. Tenn. May 6, 20 20 ) (sam e); see also Abernathy v. United States, No. 1:16-CR-81, 20 19 WL 5268 546, at *5 (E.D. Tenn. Oct. 17, 20 19) (“The Suprem e Court's holding, however, is not retroactively applicable to cases on collateral review and, therefore has no bearing on the Court's consideration of Petitioner's m otion.”). Though the Sixth Circuit has not yet issued a published decision on this issue, the Court is persuaded by the reasoning of Kham isi-El and the consensus position of the district courts in this Circuit. Even if it did apply retroactively, Rehaif would not entitle Petitioner to relief. First, Petitioner’s challenge to the sufficiency of the indictm ent is clearly foreclosed by existing precedent. “[A] m issing elem ent in an indictm ent does not affect a federal court’s subjectm atter jurisdiction.” United States v. W atson, 20 20 WL 40 37923 (6th Cir. J uly 17, 20 20 ) (rejecting Rehaif challenge to § 922(g) indictm ent on direct appeal); United States v. 2 Petitioner sought leave to am end his § 2255 petition for the first tim e on appeal, an d accordingly, the Sixth Circuit treated the am endm ent as a second or successive m otion for post-conviction relief, which failed to m eet the standards of 28 U.S.C. § 2255(h). 5 Hobbs, 953 F.3d 853, 856-58 (6th Cir. 20 20 ) (rejecting claim that indictm ent failed to charge a federal offense after Rehaif). As in W atson and Hobbs, “the indictm ent’s failure to allege the Rehaif-required elem ent (that he knew of his status as a felon)” does not “deprive[] the district court of jurisdiction to convict [Petitioner] of a felon-in-possession offense.” W atson, 20 20 WL 40 37923 at *2. Petitioner also contends he is actually innocent of violating § 922(g)(1) in light of Rehaif. Again, Rehaif m erely “clarified” the felon-in-possession statute. Kham isi-El 8 0 0 F. App’x at 349. It is also distinguishable from the instant case because Rehaif went to trial, while Petitioner entered a guilty plea. His plea relieved the Governm ent of its obligation to prove the elem ents of the charge against him beyond a reasonable doubt. See Malone v. United States, 1:14-cr-438, 20 19 WL 70 4980 5, *3 (N.D. Ohio Dec. 23, 20 19) (“Rehaif is inapplicable to Petitioner because whereas Rehaif was convicted by a jury, Petitioner pleaded guilty to his offense.”). And “[a] plea of guilty and the en suing conviction com prehend all of the factual and legal elem ents n ecessary to sustain a binding, final judgm ent of guilt and a lawful sentence.” United States v. Boce, 488 U.S. 563, 569 (1989). Notably, Petitioner never contends that he was actually ignorant of his status as a felon. Indeed, he stipulated to his prior felony convictions in the factual basis subm itted in support of his plea. [Crim . Doc. 13]; see United States v. Conley , 80 2 F. App’x. 919, 923, (6th Cir. Feb. 5, 20 20 ) (“Although the stipulation of a prior felony does not autom atically establish knowledge of felony status, it is strongly suggestive of it.”); W allace v. United States, No. 3:19-cv-0 1122, 20 20 WL 21940 0 2, * 4 (M.D. Tenn. May 6, 20 20 ) (sam e). Finally, Petitioner contends he was not properly inform ed of the elem ents of his offense, invalidating his guilty plea. But he does not allege that he would not have pleaded 6 guilty if he had known the Governm ent would have to prove knowledge of his status in order to obtain a conviction. At his change of plea hearing, the Court specifically advised Petitioner that he was giving up the right to require the governm ent to prove his guilt beyond a reasonable doubt and Petitioner stated he understood. [Crim . Doc. 30 at 5]; see W atson, 20 20 WL 40 37923 at *3 (defendant failed to show reasonable probability outcom e of proceedin gs would have been different because he did not argue he would have gone to trial if the governm ent had to prove knowledge of his felon status). Because Petitioner is not entitled to relief on any of his legal theories, his m otion to vacate m ust be den ied. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 m otion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner m ust obtain a COA before appealing the denial of a § 2255 m otion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. 7 V. CON CLU SION For the reasons set forth herein, Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and it is therefore ORD ERED that the Motion to Vacate under 28 U.S.C. § 2255 [No. 1:19-cv-322, Doc. 1; No. 1:17-cr-16 Doc. 38] will be D EN IED . A certificate of appealability from the denial of Petitioner’s § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 23rd day of Septem ber, 20 20 . / s/ Harry S. Mattice, Jr. HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 8
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