Moore v. Warden of FCI Edgefield

• Decision Date: 27 August 2021
• Docket Number: Case No. 9:20-cv-02089-TLW
• Parties: Michael L. MOORE, Petitioner v. WARDEN OF FCI EDGEFIELD, Respondent
• Court: U.S. District Court — District of South Carolina

557 F.Supp.3d 704

Michael L. MOORE, Petitioner

v.WARDEN OF FCI EDGEFIELD, Respondent

Case No. 9:20-cv-02089-TLW

United States District Court, D. South Carolina, Charleston Division.

Signed August 27, 2021

Michael Moore, Edgefield, SC, Pro Se.

Andrew Robert de Holl, US Attorneys Office, Charleston, SC, for Respondent.

Order

Terry L. Wooten, Senior United States District Judge

This matter comes before the Court for consideration of Petitioner Michael L. Moore's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. For the reasons stated below, the Court dismisses his petition.

I. Factual and Procedural History

A. Federal prosecution

In September 2008, Moore was charged in the Eastern District of Virginia with possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Indictment, United States v. Moore , No. 3:08-cr-00389 (E.D. Va. Sept. 3, 2008), EDVA ECF No. 1.¹ He declined to plead guilty and proceeded to trial.

During the one-day trial, the Government read the following stipulation to the jury regarding the felon in possession count:

It is hereby agreed by the undersigned parties that the following stipulation applies:

Prior to July 10, 2008 [the offense date], Michael Moore, the defendant herein, was convicted of a crime punishable by imprisonment for a term exceeding one year, and there has been no restoration of the defendant's civil rights, including the right to own or possess a firearm.

Trial Tr. 78:19–79:1. After the parties rested, the district judge provided the following instructions to the jury regarding the elements of the felon in possession count:

To establish a violation of Title 18, United States Code, Section 922(g)(1), the United States must prove beyond a reasonable doubt the following three elements.

First, the defendant was convicted in any court of an offense punishable by imprisonment for a term exceeding one year.

Second, the defendant thereafter knowingly possessed a firearm or ammunition.

And, third, the firearm or ammunition was in or affecting interstate or foreign commerce.

It is not necessary for the United States to prove that the defendant knew that he was not permitted to possess a firearm or ammunition. It is sufficient if you find beyond a reasonable doubt that he was previously convicted of an offense punishable by imprisonment for a term exceeding one year, and that thereafter he knowingly possessed a firearm or ammunition.

Trial Tr. 113:5–23.

The jury found Moore guilty on all three counts. EDVA ECF No. 24. He was sentenced as a career offender to a total of 360 months imprisonment, consisting of 60 months on the drug count, 120 months on the felon in possession count, and 180 months on the § 924(c) count, all to run consecutively. EDVA ECF No. 38. He filed a direct appeal challenging his career offender enhancement and his convictions on the drug and § 924(c) counts, but the Fourth Circuit affirmed. United States v. Moore , 350 F. App'x 793, 797 (4th Cir. 2009).

B. Prior habeas petitions

Moore filed his first § 2255 petition in September 2010, but the district judge denied relief. United States v. Moore , No. 3:08-cr-00389, 2013 WL 3805144, at *3 (E.D. Va. July 22, 2013). The Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Moore , 546 F. App'x 319, 320 (4th Cir. 2013).

Moore filed a second § 2255 petition in April 2016, but because he had not obtained the Fourth Circuit's authorization to file a successive petition, the district judge dismissed the petition for lack of jurisdiction. United States v. Moore , No. 3:08-cr-00389, 2016 WL 2593930, at *1 (E.D. Va. May 4, 2016).

Additionally, on at least four occasions, Moore filed motions in the Fourth Circuit seeking authorization to file a successive § 2255 petition. The Fourth Circuit denied the first three motions. Order, In re: Michael L. Moore , No. 17-192 (4th Cir. Apr. 26, 2017), ECF No. 6; Order, In re: Michael L. Moore , No. 16-9641 (4th Cir. July 15, 2016), ECF No. 9; Order, In re: Michael L. Moore , No. 16-362 (4th Cir. May 11, 2016), ECF No. 6. The Fourth Circuit is currently holding the most recent motion in abeyance pending its decision in another case. Order, In re: Michael L. Moore , No. 21-156 (4th Cir. May 10, 2021), ECF No. 8.

In addition to Moore's § 2255 efforts, he has also filed three § 2241 petitions in the District of South Carolina, all of which have been dismissed.² Moore v. Warden F.C.I. Edgefield , No. 9:18-cv-01050, 2019 WL 451213, at *1 (D.S.C. Feb. 5, 2019) ; Moore v. Mosley , No. 9:17-cv-02461, 2019 WL 451204, at *1 (D.S.C. Feb. 5, 2019) ; Moore v. United States , No. 9:10-cv-00169, 2010 WL 2893815, at *1 (D.S.C. Apr. 19, 2010).

C. Current habeas petition

In the § 2241 petition now before the Court, Moore raises a single argument: that in light of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), his felon in possession conviction should be vacated because the jury was not informed of all of the elements of the charge. See ECF No. 1 at 6. Prior to the Supreme Court issuing its opinion in Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 210 L.Ed.2d 121 (2021), the Government filed a motion for summary judgment. The Government argued that, although the Court has jurisdiction to consider the petition, it should be dismissed because the claim is procedurally defaulted and, alternatively, that he is not entitled to relief on the merits. See ECF No. 23-1 at 5. Moore then filed a response in opposition. ECF No. 29.

The magistrate judge to whom this case was assigned issued a post- Greer Report and Recommendation (Report), concluding that Moore's petition should be dismissed for lack of jurisdiction. ECF No. 30 at 8. The magistrate judge also concluded that even if jurisdiction were present, the petition fails on the merits.³ Id. at 8 n.4. Moore did not file objections to the Report.

This matter is now ripe for decision.

II. Discussion

A. Background regarding Rehaif and Greer

Before addressing the petition itself, a background discussion of Rehaif and Greer is warranted.

As relevant here, § 922(g)(1) provides 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."⁴ 18 U.S.C. § 922(g)(1). Then, § 924(a)(2) provides that "[w]hoever knowingly violates subsection [(g)] of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2) (emphasis added).

Prior to Rehaif it was broadly understood that the word "knowingly" in § 924(a)(2) only modified a defendant's possession of a firearm, not his felon status. See, e.g. , United States v. Langley , 62 F.3d 602, 605–06 (4th Cir. 1995) (en banc). Thus, courts understood a felon in possession conviction to require proof beyond a reasonable doubt of three elements: (1) a prior felony conviction; (2) knowing possession of a firearm; and (3) the firearm traveled in interstate or foreign commerce at some point during its existence. See id. at 606. Consistent with that understanding, the district judge in this case explained those elements to the jury. See Trial Tr. 113:5–23.

In Rehaif , the Supreme Court expanded the knowledge requirement when it concluded that "knowingly" modifies not just a defendant's possession of a firearm, but also his status.⁵ See Rehaif , 139 S. Ct. at 2194. Thus, it is now clear that there is a fourth element to a felon in possession charge: at the time of the firearm possession, the defendant knew that he had a prior felony conviction. See Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 2095, 210 L.Ed.2d 121 (2021) ("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.").

The Supreme Court's recent Greer decision was a consolidated appeal with two defendants and involved the issue of whether they were entitled to plain-error relief on direct appeal for unpreserved Rehaif errors. Id. at 2096. The Supreme Court held that a defendant in that situation satisfies the plain-error test only if he can show that the Rehaif error affected his substantial rights, which requires him to "show[ ] a ‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court proceedings would have been different." Id. at 2097. The Supreme Court noted that this is a difficult requirement to meet because "[i]f a person is a felon, he ordinarily knows he is a felon. ‘Felony status is simply not the kind of thing that one forgets.’ " Id. (quoting United States v. Gary , 963 F.3d 420, 423 (4th Cir. 2020) (Wilkinson, J., concurring in denial of reh'g en banc)). The Supreme Court held that neither defendant could satisfy that test because both had multiple felony convictions and neither asserted that they would have made the argument that they did not know they were felons when they possessed firearms. Id. at 2097–98.

Moore is in an even more difficult situation than the defendants in Greer because his case is not on direct appeal. Instead, the issue for him is whether he can use habeas corpus to successfully challenge his pre- Rehaif conviction for being a felon in possession of a firearm. The Court concludes that he cannot, so habeas relief is not appropriate.

B. Jurisdiction under § 2241

The first question the Court must resolve is whether it has jurisdiction to consider Moore's petition. The general federal habeas statute, § 2241, allows a federal inmate to seek a writ of habeas corpus in the district where he is confined. See 28 U.S.C. § 2241(a). Due to the practical difficulties involved in...