Hodge v. United States
| Decision Date | 14 April 2022 |
| Docket Number | 2:21-cv-193-JES-MRM,2:17-cr-119-JES-MRM |
| Parties | REGINALD LAKEITH HODGE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr Doc. #57)[1] filed on March 8, 2021. The government filed a Response in Opposition (Cv. Doc. #5) to the motion on May 14, 2021. For the reasons set forth below, the motion is dismissed, or in the alternative, denied.
On October 11, 2017, a federal grand jury in Fort Myers, Florida returned a one-count Indictment (Cr. Doc. #1) charging petitioner with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On December 21, 2017, petitioner entered a guilty plea pursuant to a Plea Agreement (Cr. Doc. #26) to Count One of the Indictment. The plea was accepted, and petitioner was adjudicated guilty. (Cr. Doc. #35.) On March 28, 2018, the Court sentenced petitioner to 84 months imprisonment followed by a term of supervised release. (Cr. Doc. #46.) Judgment was entered on March 30, 2018. (Cr. Doc. #47.) No direct appeal was filed.
Petitioner signed his § 2255 motion on March 1, 2021, and he raises four interrelated grounds for relief. In Ground One petitioner argues that he was never informed or inherently aware that he was prohibited from physically or constructively possessing a firearm and therefore he is ‘actually innocent' pursuant to Rehaif v United States, 139 S.Ct. 2191 (2019). In Ground Two, petitioner argues that his ‘actual innocence' overcomes any procedural default and the statute of limitations. In Ground Three, petitioner argues that Rehaif applies retroactively to his motion. In Ground Four, petitioner argues that his guilty plea was not knowingly and intelligently made because he was not informed of all the elements required to convict him and it is not enforceable.
Grounds Two and Three of the motion are actually just arguments as to why the court has the authority to consider the arguments based on Rehaif. Petitioner argues that his motion is based on actual innocence and therefore it overcomes any procedural hurdles, including the statute of limitations. According to petitioner, this allows the court to consider and apply Rehaif retroactively to his case.
Federal prisoners whose convictions became final after April 24, 1996, the effective date of The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), have one year from the latest of any of four events to file a § 2255 Motion:
28 U.S.C. § 2255(f). Petitioner did not file a direct appeal and the convictions became final on April 13, 2018, i.e., 14 days after entry of the Judgment on March 30, 2018. See Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000). Therefore, petitioner had until April 15, 2019[1], to file his § 2255 motion for habeas relief. Absent contrary evidence from the government, under the “mailbox rule” petitioner is deemed to have filed his motion on March 1, 2021, the date he signed the motion. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). This date is well outside the one-year statute of limitation for final judgments.
Petitioner asserts that the untimeliness is excusable because he is “actually innocent” under Rehaif. Under 28 U.S.C. § 2255(f)(3), a motion may be timely from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
The government argues that Rehaif does not apply retroactively, and in any event, petitioner filed his motion more than one year after Rehaif was issued. The government is correct on both arguments. The Eleventh Circuit has determined that Rehaif did not announce a “new rule of constitutional law” and that it was “not made retroactive to cases on collateral review by the Supreme Court.” In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) . Further, Rehaif was decided on June 21, 2019, petitioner did not file the motion within one year of Rehaif. The motion is therefore due to be dismissed as untimely.
The government argues that the claims are also procedurally barred because they were not raised on direct appeal. If an issue which could have been raised on appeal is not pursued, it will not be considered in a § 2255 proceeding absent a showing of cause and actual prejudice from the errors, or actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. This means factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 623-24.
Reading the pro se § 2255 motion liberally, as the Court must, petitioner is asserting his guilty pleas were involuntary and unknowing based on the lack of a factual basis. The reasonable inference is that petitioner raises issues of factual innocence, which is the type of actual innocence within the meaning of the exception. Bousley v. United States, 523 U.S. 614, 623 (1998). Therefore, if the motion had been filed in a timely manner, it would not have been procedurally defaulted.
Alternatively, the Court will discuss the merits of Grounds One and Four. In Grounds One and Four, petitioner argues that he did not know that he could not possess a firearm as a convicted felon, and his guilty plea was not knowingly and intelligently made because he was not informed of all the elements required to convict him.
Title 18 U.S.C. § 922(g)(1) provides in pertinent part that it is unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition”. 18 U.S.C. § 924(e)(1). The statutory penalty for this offense is up to ten years imprisonment. 18 U.S.C. § 924(a)(2).
At the time of petitioner's offense and the proceedings in the district court, it was well-settled that a conviction under § 922(g) required the government to allege and ultimately prove that: (1) the defendant knowingly possessed a firearm or ammunition; (2) the defendant was prohibited by one of the grounds in § 922(g) from possessing a firearm or ammunition; and (3) the firearm or ammunition affected interstate commerce. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). There was no requirement that the government prove defendant knew of his status as a convicted felon. United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997); United States v. Rehaif, 888 F.3d 1138, 1147 (11th Cir. 2018); United States v. Roosevelt Coats, 8 F.4th 1228, 1234 (11th Cir. 2021).
This was changed by the Supreme Court in Rehaif v. United States, 139 S.Ct. 2191 (2019) . In Rehaif, the Supreme Court reversed a defendant's conviction under § 922(g)(5)(A), which prohibits possession of a firearm by an unlawful alien, because the district court had instructed the jury it did not need to find that defendant knew he was in the country unlawfully. Rehaif, 139 S.Ct. at 2195. The Supreme Court held that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must 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.” Id. at 2200. “In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.” Greer v. United States, 141 S.Ct. 2090, 2095 (2021) (citing Rehaif at 2199-2200) (emphasis in original). As the Eleventh Circuit has summarized: Roosevelt Coats, 8 F.4th at 1234-35.
Petitioner did not raise a Rehaif claim in the district court and therefore the plain error standard of Fed. R. Crim. P. Rule 52(b) applies to unpreserved Rehaif issues. Greer, 141 S.Ct. at 2096. To satisfy this standard, a litigant must establish three threshold requirements: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights. Id. If all three requirements are satisfied, the court may grant relief if the error had a serious effect on the fairness, integrity, or public reputation of judicial proceedings. Id. at 2096-2097. The party...
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