Robertson v. United States

• Decision Date: 20 November 2020
• Docket Number: No. 2:19-cv-02791-TLP-tmp,2:19-cv-02791-TLP-tmp
• Parties: RANDY MARTELL ROBERTSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

RANDY MARTELL ROBERTSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 2:19-cv-02791-TLP-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

November 20, 2020

ORDER DENYING AND DISMISSING MOTION UNDER 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Randy Martell Robertson¹ moved pro se under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1.) The Government responded in opposition to the motion (ECF No. 6), and Petitioner replied. (ECF No. 7.) For the reasons below, the Court DENIES and DISMISSES Petitioner's § 2255 Motion.

BACKGROUND

The dates matter here. On September 13, 2017, a federal grand jury in the Western District of Tennessee indicted Petitioner, charging him with: (Count 1) unlawfully possessing heroin with the intent to distribute in violation of 21 U.S.C. §§ 812 and 841(a)(1); (Count 2) unlawfully possessing crack cocaine with the intent to distribute in violation of 21 U.S.C. §§ 812 and 841(a)(1); (Count 3) unlawfully possessing cocaine with the intent to distribute in violationof 21 U.S.C. §§ 812 and 841(a)(1); (Count 4) unlawfully possessing methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 812 and 841(a)(1); (Count 5) knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (Count 6) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See Crim. No. 17-20273, ECF No. 1 at PageID 1-4.)

On April 13, 2018, Petitioner entered into a plea agreement on Counts 1, 5, and 6 of the indictment. (See id., ECF No. 43 at PageID 84-85.) The plea agreement noted that Petitioner, "is pleading guilty because he is, in fact, guilty of the offenses charged in COUNTS 1, 5, and 6 of the Indictment." (See id. at PageID 86.) The Government also agreed to dismiss Counts 2, 3, 4, 7 and 8 in exchange for the plea. (Id.)

Petitioner waived his right to appeal his sentence and the "right to challenge any conviction or sentence imposed or the manner in which the sentence was determined in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255." (Id. at PageID 87.) The appeal waiver excluded claims of prosecutorial misconduct and ineffective assistance of counsel. (Id.)

On July 31, 2018, the Court sentenced Petitioner to a total sentence of 190 months imprisonment, 130 months each on Counts 1 and 6 of the indictment to run concurrent to each other and 60 months on Count 5 to run consecutive to Counts 1 and 6, to be followed by four years supervised release. (See id., ECF No. 51; see also id., ECF No. 53 at PageID 170-171.) The Court entered judgment the same day.²

THE § 2255 MOTION

I. Background

On November 18, 2019, Petitioner moved under § 2255 alleging that he was actually innocent of his § 922(g) conviction in light of the recent United States Supreme Court decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). (Civ. No. 19-2791, ECF No. 1 at PageID 4, 12.) In an accompanying memorandum of law, Petitioner argues: (1) he is actually innocent of the § 922(g) conviction because he had no knowledge at the time of the offense "of being in the status of being in violation of Federal law," and he had no knowledge that the firearm affected interstate commerce; (2) his guilty plea was involuntary and unintelligently given in violation of due process; (3) the Court lacked subject matter jurisdiction to proceed because, under Rehaif, the indictment failed to state an offense against the United States; and (4) based on counsel's "misadvise," he pleaded guilty to a non-crime against the United States and was sentenced to federal prison. (See ECF No. 1-1 at PageID 15-29.)

Petitioner asserts that his claim under Rehaif is based on a recently established subject matter jurisdiction defect which cannot be waived or defaulted. (See ECF No. 1-1 at PageID 21-22.) He contends that the court must establish "a violation of the law" to have jurisdiction under 18 U.S.C. § 3231. (Id. at PageID 27.) Petitioner argues that both the indictment and factual basis of his plea failed to state an offense against the United States. (Id.) He states that "it is undisputed that a crime against the United States was never established because the Court and all parties had an incorrect legal understanding [sic] what a crime under Section 922(g) required." (Id. at PageID 28.)

In December 2019, the Government responded. (ECF No. 6.) The Government recharacterizes Petitioner's arguments as follows:

1. Petitioner is "actually innocent" of violating § 922(g), because when he possessed a firearm, he "had no knowledge that the firearm affected interstate commerce";

2. his plea was involuntary, because he did not understand the elements of the § 922(g) offense; and

3. this Court lacked subject matter jurisdiction as to the § 922(g) offense.

(ECF No. 6 at PageID 40.) The Government contends that Petitioner's claims are barred by the waiver provision in his plea agreement, untimely, and procedurally defaulted. (Id. at PageID 40-46.) The Government asserts that Petitioner is not actually innocent of the § 922(g) violation, and there is ample evidence in the record that Petitioner was aware of his status as a convicted felon, as required by Rehaif, when he pleaded guilty. (Id. at PageID 44-46.) Further, the Government argues that the indictment was not defective, and the Court properly exercised subject matter jurisdiction over Petitioner's case. (Id. at PageID 46-48.)

Petitioner replied on March 12, 2020. (ECF No. 7.) Petitioner asserts that Rehaif announces a new rule of law that is retroactively applicable to his case. (Id. at PageID 53-54.) He asserts that his plea is unenforceable because a guilty plea waives only non-jurisdictional defenses, and a defendant may still obtain § 2255 relief based on the validity of the plea itself. (Id. at PageID 54-55.) Petitioner further contends that a plea does not waive the ability to seek § 2255 relief on errors that arise after the plea. (Id. at PageID 55.)

Petitioner argues that the Government misinterprets his claims under Rehaif. (Id. at PageID 58-59.) He contends that his indictment "made no mention" of his knowledge of his status and violated the Fifth Amendment due process clause. (Id. at PageID 59.) Further, he asserts that the indictment failed to charge a crime, and his conviction cannot stand. (Id.)

II. Analysis

Under 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (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." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

After a petitioner files a § 2255 motion, the Court reviews it and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). The petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

A. Rehaif

Petitioner's arguments, purportedly under Rehaif, vacillate from his assertion that he had no knowledge that the firearm crossed state lines to an assertion that he lacked knowledge of his status, presumably that, as a felon, he could not possess a firearm. In Rehaif, the Supreme Court notes,

§ 922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, "being an alien ... illegally or unlawfully in the United States"); (2) a possession element (to "possess"); (3) ajurisdictional element ("in or affecting commerce"); and (4) a firearm element (a "firearm or ammunition").

Rehaif, 139 S. Ct. at 2195-96. 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." Rehaif, 139 S. Ct. at 2200. The Court specifically ruled that the jurisdictional element (that the firearm be in or affecting interstate commerce) was not subject to a presumption of scienter or that the defendant acted knowingly. Id. at 2196. Thus, if Petitioner asserts that he had no knowledge that the weapon affected interstate commerce or crossed state lines, he is not entitled to relief based on Rehaif.

Rehaif is a matter of statutory interpretation, not a new rule of constitutional law made retroactive to cases on collateral review. See Khamisi-El v. United States, 800 F. App'x 344, 349 (6th Cir. 2020); Cooper v. United States, No. 19-3645, 2019 WL 7494402, at *2 (6th Cir. Dec. 12, 2019) (denying certificate of appealability where appellant had not shown that Rehaif was retroactive on collateral review); In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019); Wallace v. United States, No. 3:19-CV-01122, 2020 WL 2194002, at *3 (M.D. Tenn. May 6, 2020) ("Wallace's claim has no merit as Rehaif does not provide him relief...