Cross v. United States
| Citation | 504 F.Supp.3d 955 |
| Decision Date | 02 December 2020 |
| Docket Number | Crim. No. CR16-4067-LTS,No. C19-4051-LTS,C19-4051-LTS |
| Parties | Donavan CROSS, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
Jerrold Robert Black, Black Weir Law, 1904 Farnam Street, Suite 425, Omaha, NE 68102, 402-965-1457, rob@blackweirlaw.com, for Movant.
John H. Lammers, US Attorney's Office, 600 4th Street, Suite 670, Sioux City, IA 51101, 712-255-6011, jack.lammers@usdoj.gov, for Respondent.
ORDER ON MOTION PURSUANT TO 28 U.S.C. § 2255
This matter is before me on Donavan Cross’ motion (Doc. 1) to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 based on retroactive application of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). The Government has filed a response (Doc. 3) and Cross has filed a reply (Doc. 8). For the reasons discussed herein, I find that an evidentiary hearing is not required.
On August 24, 2016, the Grand Jury returned an indictment charging Cross with one count of unlawful possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3) and 924(a)(2). See CR16-4067-LTS (Crim. Doc. 2). A jury found him guilty on December 15, 2016. On April 24, 2017, United States District Judge Mark W. Bennett sentenced Cross to 120 months’ incarceration followed by three years of supervised release. Crim. Doc. 79, 113.
On May 3, 2017, Cross filed an appeal, challenging his conviction on multiple grounds. Crim. Doc. 115. The Eighth Circuit Court of Appeals affirmed Cross’ conviction and filed its mandate on June 21, 2018. Crim. Docs. 124–26. On October 4, 2018, Cross filed a petition for writ of certiorari with the Supreme Court. Crim. Doc. 127. The Supreme Court denied certiorari on October 9, 2018. Crim. Doc. 128.
Cross filed his § 2255 motion (Doc. 1) on September 26, 2019, arguing that his conviction was inconsistent with the Supreme Court's subsequent decision in Rehaif because the Government failed to prove that Cross knew he possessed a firearm and knew that he had the relevant prohibited status when he possessed it. See Rehaif , 139 S. Ct. at 2194. In an initial review order, I found that Cross’ claim was not patently frivolous, noting that because the Eighth Circuit has not yet addressed whether Rehaif applies retroactively on collateral review, there is no controlling law on the issue. Doc. 2 at 4. I directed the Government to respond to Cross’ motion and appointed counsel for Cross. Id. The Government filed a response (Doc. 3) in which it concedes the retroactive application of Rehaif but argues that Cross is not entitled to relief because (1) his claim was procedurally defaulted and (2) there was harmless error. Cross then filed a reply (Doc. 8) through counsel.
A prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside or correct the sentence. See 28 U.S.C. § 2255(a). To obtain relief under § 2255, a federal prisoner must establish:
[T]hat the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or [that the judgment or sentence] is otherwise subject to collateral attack.
Id. ; see also Hill v. United States , 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255 ). If any one of the four grounds is established, the court is required "to vacate and set aside the judgment and [it is required to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
When enacting § 2255, Congress "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Sun Bear v. United States , 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States , 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ). Although it appears to be broad, § 2255 does not provide a remedy for "all claimed errors in conviction and sentencing." Id. (quoting United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) ). Rather, it is intended to redress constitutional and jurisdictional errors and, apart from those errors, only "fundamental defect[s] which inherently [result] in a complete miscarriage of justice" or "omission[s] inconsistent with the rudimentary demands of fair procedure." Hill , 368 U.S. at 428, 82 S.Ct. 468 ; see also Sun Bear , 644 F.3d at 704 (); United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996) . A collateral challenge under § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady , 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (). Consequently, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (citation omitted).
"Evidentiary hearings on [ § 2255 ] motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists ." Thomas v. United States , 737 F.3d 1202, 1206 (8th Cir. 2013) (emphasis added). "The district court is not permitted to make a credibility determination on the affidavits alone." Id. at 1206 ; see also United States v. Sellner , 773 F.3d 927, 930 (8th Cir. 2014) (). However, no hearing is required "where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." See New v. United States , 652 F.3d 949, 954 (8th Cir. 2011) (citation omitted).
In Rehaif , the Supreme Court held that the Government must make two separate showings of knowledge to convict a defendant of violating 18 U.S.C. § 922(g) : (1) "that the defendant knew he possessed a firearm" and (2) "that he knew he had the relevant status when he possessed it." Rehaif , 139 S. Ct. at 2194.
The Government concedes that "[b]ecause Rehaif narrows the ‘class of persons that the law punishes,’ Welch v. United States [––– U.S. ––––] 136 S. Ct. 1257, 1267 (2016), it is retroactively applicable in an initial motion under 28 U.S.C. § 2255(f)(3)." Doc. 3. at 3, n.2. Cross argues that I should accept the Government's concession, noting that the Eighth Circuit has previously declined to address retroactive application in the face of a concession by the Government. Doc. 8 at 3 (citing Becht v. United States , 403 F.3d 541, 545 n.3 (8th Cir. 2005) ). Based on the Government's concession and for purposes of this motion, I will assume that Rehaif applies retroactively.1
The Government argues Cross has procedurally defaulted his Rehaif claim because he did not raise the issue at trial or on direct appeal. "In order to obtain collateral review on a procedurally defaulted claim, a habeas petitioner must show either that there was cause for his procedural default and actual prejudice, or that he is actually innocent of the crime for which he was convicted." Jennings v. United States , 696 F.3d 759, 764 (8th Cir. 2012) (citing Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). Because there appears to be no dispute that Cross’ claim is procedurally defaulted, I will consider whether he has established actual innocence or cause and actual prejudice to overcome the default.
To establish actual innocence, Cross must show that "it is more likely than not that no reasonable juror would have convicted him" had the jury been given the correct instruction and the Government had the opportunity to submit evidence of the omitted element. See Bousley , 523 U.S. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo , 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ). " ‘[A]ctual innocence’ means factual innocence not mere legal insufficiency.’ " Id. "[A] petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent." United States v. Mikalajunas , 186 F.3d 490, 494 (4th Cir. 1999). Actual innocence claims require a movant to "support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial." Weeks v. Bowersox , 119 F.3d 1342, 1351 (8th Cir. 1997) (quoting Schlup , 513 U.S. at 324, 115 S.Ct. 851 ). "This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a ... conviction." Johnson v. United States , 278 F.3d 839, 844 (8th Cir. 2002) (quoting McNeal v. United States , 249 F.3d 747, 749-50 (8th Cir. 2001) ). "Because such evidence is obviously unavailable in the vast majority of cases, claim of actual innocence are...
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