Nevels v. United States

• Decision Date: 23 August 2022
• Docket Number: 3:19-cv-00678
• Parties: REGINALD LEON NEVELS, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

REGINALD LEON NEVELS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

No. 3:19-cv-00678

United States District Court, M.D. Tennessee, Nashville Division

August 23, 2022

MEMORANDUM

ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

Reginald Leon Nevels filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence previously imposed by this court. See United States v. Nevels, No. 3:17-cr-00107, Doc. No. 28 (M.D. Tenn. Oct. 25, 2017) [hereinafter cited as “Crim. Doc. No. ”]. The government filed a response. (Doc. No. 16.) For the following reasons, the movant is not entitled to relief under Section 2255, and this action will be dismissed.

I. Background

A June 2017 information charged the movant with violating 18 U.S.C. §§ 922(g)(1) and 924 by being a felon in possession of firearms, namely a Ruger pistol, Smith & Wesson revolver, and Taurus pistol. (Crim. Doc. No. 1.) Within a week of his arrest, the movant waived prosecution by indictment and pleaded guilty to the information. (Crim. Doc. Nos. 11, 14.) His plea was pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). (Crim. Doc. No. 16.) At the plea hearing, the court accepted the movant's plea petition and reserved acceptance of the binding plea agreement. (Crim. Doc. No. 14.)

In the plea agreement, the movant admitted the following facts and that those facts established his guilt beyond a reasonable doubt. (Crim. Doc. No. 16 at 3.) State and federal law

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enforcement investigated and prosecuted the movant as a result of a larger drug investigation. (Id. at 4.) Local officers did a “trash pull” outside a residence of interest and recovered, among other things, 107 torn plastic sandwich baggies (some containing residue that tested positive for heroin) and mail connecting the movant to that residence. (Id.) Local officers later conducted two controlled purchases of heroin from the movant outside that residence using a confidential informant. (Id. at 4-5.) Officers then obtained a state search warrant for the residence. (Id. at 5.) In a bedroom, officers found the movant, a digital scale, and over $19,000 in cash. (Id.) In that bedroom and the living room, officers found firearms and ammunition (including the three firearms charged in the information). (Id.) The movant told officers that he possessed the three charged firearms and that he “helped a number of people obtain small amounts of heroin from time to time.” (Id. at 5-6.) He agreed that the charged firearms were not “manufactured in the State of Tennessee and so were possessed by [the movant] in and affecting interstate commerce.” (Id. at 6.) And the movant agreed that, at the time of the search, he had been convicted of three prior drug trafficking felonies and one felony for simple possession/casual exchange. (Id.)

Under the plea agreement, the parties agreed that the movant's term of imprisonment should be 108 months. (Id. at 9.) They also agreed that, if the court accepted the agreement, then the movant's advisory sentencing guideline range was “moot” because his sentence would be based on the factors set forth in 18 U.S.C. § 3553(a), rather than the guideline range. (Id. at 6-7.) They agreed that the plea agreement was also based on the federal government's not seeking additional charges stemming from the admitted facts and on the state government's dismissing pending charges arising from these facts. (Id. at 7.)

The Probation Office prepared a Presentence Investigation Report (“PSR”) prior to sentencing. Nevels, No. 3:17-cr-00107, Presentence Report [hereinafter cited as “PSR ____”]. In

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calculating the movant's sentencing guideline range, the PSR increased the movant's base offense level by applying the large-capacity-magazine enhancement. (PSR ¶ 17 (applying U.S.S.G. § 2K2.1(a)(1).)^[1] This enhancement applies only if, among other things, the defendant had two or more prior felony convictions for “either a crime of violence or a controlled substance offense” when he committed the underlying offense. (See id.) The PSR identified three such controlled substance offenses. (See id.)

The court held a sentencing hearing, accepted the binding plea agreement, and imposed the 108-month sentence. (Crim. Doc. No. 27.) Judgment entered on October 25, 2017. (Crim. Doc. No. 28.) The movant did not appeal.

II. Claims

The court liberally construes the Section 2255 motion to assert the following claims:

1. The movant's plea was unknowing and involuntary because he was not apprised of the elements necessary to convict him of the charged offense. (Doc. No. 1 at 5-6.)

2. Counsel was ineffective by failing to:

A. Advise the movant of the elements of his charged offense (id. at 5); and

B. Object to enhancements of his statutory maximum penalty and guideline range based on prior convictions. (Id. at 6-7.)

3. The Bureau of Prisons failed to award the movant jail credit. (Id. at 8.)

4. The court failed to recommend the Residential Drug Abuse Program. (Id.)

III. Legal Standard

“A motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.”

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United States v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). “When a factual dispute arises in a § 2255 proceeding, an evidentiary hearing is required to determine the truth of the petitioner's claims.” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (internal citations and quotation marks omitted). “An evidentiary hearing is not required,” however, “‘if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Monea v. United States, 914 F.3d 414, 422 (6th Cir. 2019) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)).

IV. Analysis

A. Claims 1 and 2.A-Elements of the Offense

In Claim 1, the movant asserts that his plea to being a felon in possession of firearms was unknowing and involuntary because he was unaware of two elements necessary to find him guilty of the offense: first, that he possessed the relevant firearms “in or affecting commerce” (the “commerce element”); and second, that he knew he was a felon when he possessed the firearms (the “knowledge-of-status element”), as clarified by the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). (See Doc. No. 1 at 5-6.) In Claim 2.A, the movant asserts that counsel was ineffective for failing to advise him of these two elements. (Id.) The government argues that Claim 1 is procedurally defaulted without cause (Doc. No. 16 at 8-10), and that Claim 2.A is without merit.^[2] (Id. at 12-13.)

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The court agrees that Claim 1 is defaulted, as the movant did not raise it in his criminal proceedings. See Wallace v. United States, --- F. 4th ----, 2022 WL 3134350, at *4 (6th Cir. Aug. 5, 2022) (citation omitted) (“Under the Supreme Court's procedural-default rule, [a movant's] failure to raise his Rehaif claim during the ‘main event' (his criminal litigation) means that he presumptively cannot raise it in an after-the-fact § 2255 motion.”). To obtain review of a defaulted claim, a movant must show: “(1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is ‘actually innocent' of the crime.” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). The movant presents no new evidence that he was unaware of the commerce element or the knowledge-of-status element at the time of his plea, so he has not made a colorable claim of actual innocence to excuse the default of Claim 1. See Wallace, 2022 WL 3134350, at *8 (citing Davis v. Bradshaw, 900 F.3d 315, 326 (6th Cir. 2018)) (rejecting Rehaif-based actual innocence argument).

A movant may, however, rely on ineffective assistance of counsel as “cause” for the default of a claim. Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). Therefore, if the movant establishes Claim 2.A (asserting that counsel failed to advise him of certain elements), then he has also established cause for the default of Claim 1 (asserting that his lack of knowledge regarding these elements rendered his plea unknowing and involuntary).

An ineffective-assistance claim requires the movant to “establish that his attorney's performance was deficient and that the deficient performance prejudiced the defense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “An attorney's performance is deficient if ‘counsel's representation fell below an objective standard of reasonableness.'” Id. (quoting Strickland, 466 U.S. at 688). When a movant asserts that his attorney's performance “deprived

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him of a trial by causing him to accept a plea, the [movant] can show prejudice by demonstrating a ‘reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'” Lee v. United States, 137 S.Ct. 1958, 1965 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). And a movant “who makes the prejudice showing for an ineffective-assistance claim (to establish ‘cause' for a procedural default) generally satisfies the logically distinct ‘prejudice' element to avoid the procedural default.” Wallace, 2022 WL 3134350, at *5 (citing Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009)). With this framework in mind, the court will address the two elements in question.

1. Commerce Element

Section 922(g) bars certain categories of people from possessing firearms or ammunition “in or affecting commerce.” 18 U.S.C. § 922(g). This commerce element is satisfied...