Rivera-Cruz v. United States
| Decision Date | 31 March 2023 |
| Docket Number | CIVIL 19-2084 (ADC),Crim. 15-705 (ADC) |
| Parties | JOSE LUIS RIVERA-CRUZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Pending before the Court is petitioner Jose Luis Rivera-Cruz's (“petitioner”) motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. ECF No. 1. The United States of America (“government”) opposed. ECF No 7. For the ensuing reasons, the Court DENIES petitioner's motion.
On January 4, 2012, a Grand Jury returned a one-count indictment charging petitioner with “possession of a firearm by a prohibited person (18 U.S.C. § 922(g)(1))” and “Firearms and Ammunition Forfeiture Allegation (18 U.S.C. § 924(d)(1) & 28 U.S.C. § 2461(c)).” Crim. No. 15705, ECF No 14. On April 11, 2016, petitioner entered into a Plea and Forfeiture Agreement with the government wherein he pled guilty to the indictment; that is, to the knowing possession of firearm while having been previously convicted of a crime punishable by imprisonment for a term exceeding one year. Crim. No. 15-705, ECF Nos. 36, 37 and 38. In a nutshell, petitioner stipulated and admitted that he knowingly a possessed a Colt .38 caliber revolver loaded with 6 rounds of .38 caliber ammunition, which had its serial number obliterated. Crim. No. 15-705, ECF No. 36 at 10-12. On that same date, the Court held a hearing pursuant to Fed. R. Crim P. 11 () for which a transcript was prepared. Crim. No. 15-705, ECF No. 56. There, petitioner explicitly admitted that at the time he possessed the weapon, he had prior state court felony convictions. Crim. No. 15-705, ECF No. 56 at 5-6, 26-27.
During the change of plea hearing, petitioner's attorney stated that these prior convictions ranged from 1986 to 2013 and included not only misdemeanors but, attempted robbery, attempted burglary, and a conviction related to controlled substances. Crim. No. 15705, ECF No. 55 at 26-27. These prior convictions, along with the sentences imposed, were listed and detailed in the Amended Pre-Sentence Report (“PSR”). Crim. No. 15-705, ECF No. 41. According to the PSR, petitioner had four prior convictions for which he was sentenced by a term of imprisonment exceeding one year. Id.
On October 25, 2016, petitioner was sentenced to 120 months of imprisonment and a three (3) year supervised release term. Crim. No. 15-705, ECF Nos. 50 and 51. Petitioner then appealed his sentence, alleging that his Plea and Forfeiture Agreement lacked sufficient consideration. Crim. No. 15-705, ECF No. 52. The First Circuit Court of Appeals nonetheless affirmed petitioners' sentence on December 22, 2017. United States v. Rivera-Cruz, 878 F.3d 404 (1st Cir. 2017). On November 11, 2019, petitioner filed the present motion under 28 U.S.C. § 2255 seeking relief from his conviction based on the retroactive application of a new rule applicable to prosecutions under 18 U.S.C. § 922(g), as announced by the Supreme Court in Rehaif v. United States, 139 S.Ct. 2191 (2019). ECF No. 1.
Petitioner moves to vacate his felon-in-possession conviction under 18 U.S.C. § 922(g)(1), relying principally on the Supreme Court's holding in Rehaif. In Rehaif, the Supreme Court held that when prosecuting a defendant under 18 U.S.C. § 922(g), the government must prove 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. Petitioner contends that at the time when he was “convicted and sentenced to the predicate offenses, he was never fully informed” that he would henceforth be barred by 18 U.S.C. § 922(g)(1) from knowingly possessing a firearm. ECF No. 1 at 3. He further contends that because he did not know he could not possess a firearm due to his prior convictions, he is “factually innocent of the charge of being a Felon in Possession of a Firearm.” Id., at 4. Therefore, petitioner requests that the Court “grant any relief this Court may find favorable to the [p]etitioner, including vacating his conviction and ordering his immediate release from custody.” Id.
The government opposed petitioner's request contending that Rehaif is inapposite, largely because petitioner is making a mistaken analysis of the law as Rehaif affords no relief. ECF No. 8 at 3-4. The government also contends that petitioner's claim is procedurally defaulted, as he failed to raise this argument on direct appeal. Id., at 4. Finally, the government posits that petitioner is not entitled to appointment of counsel or an evidentiary hearing on this matter. Id., at 5-6.
Under 28 U.S.C. § 2255, “[a] 1-year period of limitation shall apply to a motion under this section....” See, 28 U.S.C. § 2255(f). Where a petitioner is asserting that a right was made retroactive to cases on collateral review, the statute of limitations runs from the latest of “...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....” See, 28 U.S.C. § 2255(f)(3).
Petitioner filed his motion to vacate on November 18, 2019. ECF No. 1. Rehaif was issued on June 21, 2019. The First Circuit has yet to decide whether the rule announced in Rehaif is applicable retroactively to cases on collateral review. However, at least the Fifth and Eleventh Circuit Courts of Appeal have held that the rule applies retroactively to initial § 2255 petitions. See, United States v. Kelley, 40 F.4th 250 (5th Cir. 2022); Seabrooks v. United States, 32 F.4th 1375 (11th Cir. 2022).[1]If so, petitioner here would be entitled to raise the rule in Rehaif as grounds for relief; and given that he filed his petition a mere five months after the issuance of Rehaif, his motion would be timely. 28 U.S.C. § 2255(f)(3).[2]
In Rehaif, the Supreme Court held that, under 28 U.S.C. § 922(g), the government must prove both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. 139 S.Ct. at 2200. As to the latter element, the First Circuit has referred to it as the “scienter-of-status element.” See, United States v. Farmer, 988 F.3d 55, 60 (1st Cir. 2021).
Before Rehaif, “the law in this circuit did not [] impose this scienter-of-status element for convictions under § 922(g).” United States v. Burghardt, 939 F.3d 397, 402 n.3 (1st Cir. 2019). “After Rehaif, the government in a felon-in-possession case 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, 2093 (2021).
Importantly, the scienter-of-status element refers (as the term suggests) to the defendant's knowledge of his or her status as a person meeting one of the categories listed in § 922(g)(1) through (9), not to a defendant's knowledge that he or she was violating the law. See, United States v. Austin, 991 F.3d 51, 59 (1st Cir. 2021) ( ) (alterations and emphasis in original).
Here, petitioner's collateral attack on his sentence is premised on his alleged ignorance of § 922(g)(1)'s prohibition on possessing a firearm made applicable to him as a convicted felon. Even though petitioner reads Rehaif to include “a required element that the charged person ha[s] been fully knowledgeable of his status” as a prohibited person, he then contends that “when he was convicted and sentenced to the predicate offenses, he was never fully informed, in terms easy enough for a man with development and educational challenges to understand[,] that he would forever be considered” a prohibited person. ECF No. 1 at 2-3. Simply put, petitioner argues that he did not know that he could not possess a firearm given his status as a convicted felon.
In response, the government avers that the scienter-of-status requirement “does not demand proof that the defendant specifically knew that he was legally prohibited from possessing a firearm.” ECF No. 8 at 3. The government contends that petitioner Id., at 4 (citing ECF No. 1 at 3).
The Court agrees with the government. Evidently, petitioner has put forth an argument based on his ignorance of § 922(g)-the law barring the possession of firearms by persons “convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). But Rehaif is clear in that the scienter-of-status requirement refers to the person's status (i.e., having been convicted of a crime punishable by a term exceeding one year) and not to the unlawful nature of the proscribed conduct (i.e., possessing a firearm while having been thus convicted).[3] Rehaif does not offer petitioner any relief, and his argument falls in the same pitfall already covered by the First Circuit in Austin, 991 F.3d at 59, cited above.[4]
Rehaif itself provides a sufficiently illustrative example. The defendant there was prosecuted for...
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