Carney v. United States
| Decision Date | 14 February 2023 |
| Docket Number | Civ. 20-872 (PGS) |
| Parties | BARRY CARNEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of New Jersey |
Not for Publication
Petitioner Barry Carney (“Petitioner”), is a federal prisoner proceeding with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 3, “Motion”.) Following an order to answer the Government filed a response to the motion (ECF No. 7) and Petitioner filed a reply (ECF No. 8). For the reasons set forth below, the Court will deny Petitioner's motion and will not issue a certificate of appealability.
In 2016, the Mercer County Prosecutor's Office, Special Investigations Unit, received information from a confidential informant (“CI”) that an individual known as “B” was distributing quantities of crack cocaine within the City of Trenton, New Jersey. (See ECF No. 7-4 at 5.) The CI indicated that “B” sold the crack cocaine from his vehicle, a 2008 GMC Acadia. (Id.) In 2017, Mercer County Prosecutor's Office (“MCPO”) investigators conducted an investigation, during which Petitioner was identified as a narcotics trafficker. (Id.) The investigation included controlled purchases of narcotics by the CI operating under law enforcement's direction and supervision, as well as physical surveillance of Petitioner in his vehicle, a black 2008 GMC Acadia. (See id. at 6-13.)
On July 31, 2017, MCPO investigators obtained search warrants for Petitioner's person, the 2008 GMC Acadia, and another premises in Trenton. (See id. at 16-22.) On August 1, 2017, Petitioner was observed driving his Acadia near the area of Chambers Street and Walnut Avenue in Trenton, New Jersey. (See ECF No. 7-2 at 3.) Officers executed the search warrant and Petitioner was taken into custody. (Id.) A crowd had gathered around the Acadia, thus, officers drove the vehicle from Walnut Avenue to Liberty Street, where a search of the vehicle took place. (Id.) A black H&K .45 caliber handgun (serial number 216-014761), containing eight rounds of ammunition, with one round chambered in the weapon, approximately 210 grams of cocaine, and $3,430.00 were recovered from a hidden compartment in the rear of the front passenger seat. (Id.)
On October 24, 2017, Petitioner was charged in a two-count criminal complaint with unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1); and possession with intent to distribute cocaine and crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C). (Crim. No. 18-cr-361, ECF No. 1.) On June 26,2018, Petitioner waived his right to be charged by indictment and consented to proceed by information. (Id., ECF No. 16.) The information charged Petitioner with the above cited two counts from the complaint. (Id., ECF No. 15.)
Petitioner's presentence report (“PSR”) indicates that prior to his arrest in this matter, Petitioner was convicted of the following felony offenses:
On June 26, 2018, pursuant to a plea agreement, Petitioner pled guilty to unlawful possession of a firearm by a convicted felon, 18 U.S.C. §922(g)(1); and possession with intent to distribute cocaine and crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C). (See ECF No. 7-9.) At the plea hearing, Petitioner admitted to having been previously convicted of unlawful possession of a firearm by a convicted felon in June 2008, in the District Court of New Jersey. (Id. at 31:7-10.) In January 2019, the Court sentenced Petitioner to concurrent terms of 84 months' imprisonment on both counts. (ECF No. 7-11.)
Petitioner did not file an appeal challenging his conviction or sentence. Instead, on January 1, 2020, Petitioner filed a Section 2255 motion in light of the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), and arguing the Court lacked subject-matter jurisdiction to impose his sentence. (ECF No. 1.) The Court administratively terminated the motion for failure to use the correct Section 2255 form, and Petitioner filed the instant motion on April 4, 2020. (ECF Nos. 2 & 3.)
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides in relevant part that:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes “a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert, denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003). A district court must hold an evidentiary hearing on a § 2255 motion unless the “motion and the files and records of the case conclusively show” that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).
In ground one, Petitioner alleges that in light of the Supreme Court decision in Rehaif, his guilty plea is invalid. Petitioner argues he entered his plea unknowingly, because he was not advised the Government would be required to prove that he knew that he was a felon at the time he possessed the firearm (knowledge of status) at issue in his conviction. (See ECF No. 3 at 16-18.)
A defendant may seek relief under § 2255 if a subsequent court decision makes clear that the “conviction and punishment were for an act that the law does not make criminal.” Davis v. United States, 417 U.S. 333, 346 (1974). In Rehaif, the Supreme Court held that, in order to be found guilty of violating 18 U.S.C. § 922(g), the Government must show that a criminal defendant knew that he fell into one of the categories of people barred from possessing a firearm under the statute at the time that he knowingly possessed a firearm. 139 S.Ct. at 2194. Because Petitioner's § 922(g) charge was premised on his having been a convicted felon at the time he possessed the firearm, see 18 U.S.C. § 922(g), in this matter Rehaif would require that Petitioner admit, or the Government prove, that Petitioner knew at the time he possessed the firearm that he had knowledge of status. United States v. Sanabria-Robreno, 819 Fed.Appx. 80, 83 (3d Cir. 2020).
While the Government does not argue the substance of knowledge of status, and instead argues that Petitioner's Rehaif claim is procedurally defaulted, and he cannot overcome this default. Where an issue was not raised at trial nor on direct appeal, it has been procedurally defaulted. See Bousley v. United States, 523 U.S. 614, 622 (1998) (); Farlow v. United States, No. 20-10679, 2020 WL 838351, at *3 (D.N.J. March 5, 2021)( that the defendant had procedurally defaulted his Rehaif claim by failing to raise it on direct appeal.) Since Petitioner had not appealed, Petitioner failed to raise a claim that he was unaware of the knowledge of status requirement at issue in his current conviction. As such, Petitioner's claim is procedurally defaulted.
To overcome this procedural default, Petitioner must demonstrate “cause” for and “actual prejudice” emanating from the default, or that he is actually innocent. Bousley, 523 U.S. at 622-23. Any argument from Petitioner that a direct appeal claim that the government should have been required to show he had knowledge of his status would have been futile because appellate courts had routinely rejected the argument prior to the Supreme Court decision in Rehaif, fails to show cause to excuse his default. The Supreme Court has found “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” Id. (internal quotation marks and citations omitted). The exception to that rule is if the claim was “so novel” at the time “that its legal basis [was] not reasonably available to counsel.” Id. at 622 (internal quotation marks and citations omitted). The issue ultimately decided by the Supreme Court in Rehaif, had been litigated for years prior in lower courts. See United States v. Rehaif, 888 F.3d 1138, 1145 n.3 (11th Cir. 2018) (); see also United States v. Morales-Ortiz, Criminal Action No. 11-143,2020 WL 7246913, at *3 (E.D. Pa. Dec....
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