Nair v. United States
| Decision Date | 30 March 2020 |
| Docket Number | CASE NO. C19-1751JLR |
| Court | U.S. District Court — Western District of Washington |
| Parties | RASHAUN T. NAIR, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
ORDER GRANTING 28 U.S.C. § 2255 PETITION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
Before the court are: (1) Petitioner Rashaun T. Nair's 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence (Pet. (Dkt. # 1)); and (2) Mr. Nair's motion for release on special conditions pending the outcome of his § 2255 petition (Mot. (Dkt. # 14)). Respondent United States of America ("the Government") opposes both motions. The court has reviewed the motions, the parties' submissions filed in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised,1 the court GRANTS Mr. Nair's § 2255 petition and awards habeas corpus relief and DENIES Mr. Nair's motion for release pending the outcome of his § 2255 petition as MOOT.
On August 7, 2015, the Government charged Mr. Nair by complaint with one count of Felon in Possession of Ammunition, in violation of 18 U.S.C § 922(g)(1). The complaint alleges that, on or about May 31, 2006, Mr. Nair had been previously convicted of one felony, Residential Burglary, in King County Superior Court and was "therefore prohibited from possessing firearms and ammunition under federal law." (Id. at 2, ¶ 4.)
On August 13, 2015, the Grand Jury returned an indictment against Mr. Nair for one count of Felon in Possession of Ammunition in violation of 18 U.S.C. § 922(g)(1). (See CR15-0279JLR Indictment (Dkt. # 11).) The indictment recites Mr. Nair's 2005 juvenile conviction for Residential Burglary in King County Superior Court as the predicate felony. (Id.) At his arraignment on August 20, 2015, Mr. Nair pleaded not guilty to the charge. (See CR15-0279JLR 8/20/15 Min. Entry (Dkt. # 16).)
On March 16, 2016, Mr. Nair changed his plea to guilty to count one of the indictment. (See CR15-0279JLR Plea Agreement (Dkt. # 25); see also CR15-0279JLR 3/16/16 R&R (Dkt. # 26); CR15-0279JLR Order of Acceptance (Dkt. # 27).) Like the indictment, the plea agreement recites Mr. Nair's juvenile conviction for Residential Burglary in King County Superior Court as the predicate felony offense supporting the charge.2 (CR15-0279JLR Plea Agreement at 3, ¶ 6.a.) The plea agreement sets forth the following elements: "First, the defendant knowingly possessed ammunition; Second, the ammunition had been shipped or transported in interstate commerce or foreign commerce; and Third, at the time the defendant possessed the ammunition, the defendant had been convicted of a crime punishable by imprisonment for term exceeding one year." (Id. at 2, ¶ 2.)
Mr. Nair's conviction record for Residential Burglary indicates that Mr. Nair appeared in the Juvenile Department of King County Superior Court for "Disposition" on May 31, 2006, after pleading guilty that same day. A King County Superior Court judge sentenced Mr. Nair to 20 days confinement followed by nine months of community supervision. (Pet. Ex. 1 at 3.)3 The disposition order also notes a "local sanction" range of zero to 30 days. (Id.) According to the Juvenile Offender Sentencing Grid, the standard range forconfinement for Mr. Nair was a "Local Sanction" of zero to 30 days in custody. (See Pet. Ex. 1; Pet. Ex. 2 (Dkt. # 2-2)); see also RCW 13.40.020. Therefore, Mr. Nair's punishment for Residential Burglary did not exceed one year of imprisonment.
On August 17, 2016, this court sentenced Mr. Nair to 12 months and one day in prison followed by three years of supervised release. (See CR15-0279JLR Judgment (Dkt. #35).) Mr. Nair's supervised release commenced on July 28, 2017. (Pet. at 5; Resp. at 3.) On November 1, 2019, after an evidentiary hearing, the court revoked Mr. Nair's supervised release based on a finding that the Government had sustained certain violations of his supervised release. (See CR15-0279JLR 10/31/19 Min. Entry (Dkt. # 76); CR15-0279JLR 11/1/19 Min. Entry (Dkt. # 80).) Mr. Nair remains in federal custody as of the date of this order.
On October 30, 2019, Mr. Nair filed a 28 U.S.C. § 2255 potion challenging his sentence. (See generally Pet.) In his petition, Mr. Nair contends that his conviction and sentence must be vacated for two reasons: (1) because his guilty plea was involuntary under Rehaif v. United States, --- U.S. ---, 139 S. Ct. 2191 (2019), which requires the Government to prove that the defendant knew of his prohibited status at the time he possessed the ammunition identified in the charge ("the Rehaif claim"); and (2) because Mr. Nair is actually innocent of the crime of Felon in Possession of Ammunition under two recent Ninth Circuit cases, United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), and United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) ().
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The Government concedes that Mr. Nair's Rehaif claim is timely because he filed his 28 U.S.C. § 2255 petition within one year of the Supreme Court's Rehaif decision. (Pet. Resp. at 7 (citing 28 U.S.C. § 2255(f)(3)).)4 Section 2255(f)(3) provides that the one-year limitation period for § 2255 motions runs 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." 28 U.S.C.A. § 2255(f)(3).5 Some courts, however, have concluded that the Supreme Court's decision in Rehaif is not retroactively applicable to cases on collateralreview. See, e.g., United States v. Saenz, No. 6:00-9, 2020 WL 1321600, at *2 (S.D. Tex. March 17, 2020); United States v. Benton, No. CR 3:12-00118, 2020 WL 132276, at *2 (W.D. La. Jan. 9, 2020). If Rehaif is not retroactively applicable to cases on collateral review, the one-year time provision in 28 U.S.C. § 2255(f)(3) would not be applicable to Mr. Nair's claim and his motion would be untimely. Nevertheless, because the Government has waived this argument, the court need not consider it further. See United States v. Hill, 915 F.3d 669, 673 n.1 (9th Cir. 2019) (); see also Pough v. United States, 442 F.3d 959, 965 (6th Cir. 2006) ().
The Supreme Court has strictly limited the circumstances under which a defendant may collaterally attack his guilty plea. Bousley v. United States, 523 U.S. 614, 621 (1998). "[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Id. (citations omitted). Mr. Nair never challenged the voluntariness or intelligence of his plea at his sentencing or on direct appeal, and so his 28 U.S.C. § 2255 petition is procedurally defaulted.
Mr. Nair may overcome his procedural default in either one of two ways: (1) by showing both cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, see United States v. Frady, 456 U.S. 152, 168 (1982); or (2) by demonstrating his actual innocence, Bousley, 523 U.S. at 623. "To establishactual 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." Id. (quotations and citations omitted). "A petitioner is actually innocent when he was convicted for conduct not prohibited by law." Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (citations omitted). One way for a defendant to "demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged offense." Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014).
As Mr. Nair argues—and the Government admits—the recent Ninth Circuit decisions in Valencia-Mendoza, 912 F.3d at 1217-19, and McAdory, 935 F.3d at 842-43, taken together, hold that to convict a defendant of being a felon-in-possession under 28 U.S.C. § 922(g)(1), where the defendant's predicate conviction is from Washington State, the Government must show that the top end of the defendant's state sentencing range (or his actual sentence) exceeded one year. (See Resp. at 10; Pet. at 7-8.) This is so because, due to the nature of Washington's mandatory guidelines system, it is the guidelines range (or actual sentence) which establishes whether the predicate conviction was a crime "punishable by a term of imprisonment exceeding one year" within the meaning of 28 U.S.C. § 922(g)(1). See Valencia-Mendoza, 912 F.3d at 1219; McAdory, 935 F.3d at 843-44. Here, neither Mr. Nair's guideline range nor his actual sentence for his residential burglary conviction exceeded one year. See supra § II. As a result, Valencia-Mendoza and McAdory compel the conclusion that Mr. Nair is actually innocent of his 28 U.S.C. § 922(g)(1) conviction in 2016. Thus, the Government concedes, and the court agrees, that Mr. Nair's demonstration of actual innocence is sufficient to excusethe procedural default of his Rehaif claim. (See Resp. at 10 ().
In Rehaif, the Supreme Court overruled longstanding precedent from the Ninth Circuit—and every...
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