United States v. Dace, Criminal Case No. 16-cr-00383-RBJ

• Decision Date: 24 June 2020
• Docket Number: Criminal Case No. 16-cr-00383-RBJ
• Citation: 469 F.Supp.3d 1074
• Parties: UNITED STATES of America, Plaintiff, v. Daniel Ray DACE, Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.Supp.3d 1074

UNITED STATES of America, Plaintiff,

v.Daniel Ray DACE, Defendant.

Criminal Case No. 16-cr-00383-RBJ

United States District Court, D. Colorado.

Signed June 24, 2020

Kurt J. Bohn, Justin Bishop Grewell, U.S. Attorney's Office, Denver, CO, for Plaintiff.

ORDER GRANTING DEFENDANT'S 28 U.S.C. § 2255 MOTION

R. Brooke Jackson, United States District Judge

This matter is before the Court on movant Daniel Ray Dace's motion to vacate his conviction and sentence under 28 U.S.C. § 2255. ECF No. 52. For the reasons stated herein, the § 2255 motion is GRANTED.

I. BACKGROUND

On April 13, 2017 Daniel Ray Dace pled guilty to two counts of possession of a firearm by a previously convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) ("Count One" and "Count Four"), one count of possession of a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(a) ("Count Two"), and one count of possession of a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Three"). ECF No. 26 at 1.

On June 29, 2017 I sentenced Mr. Dace to concurrent terms of 108 months’ imprisonment on Counts One, Two, and Four, to run consecutively to a term of 60 months’ imprisonment on Count Three. ECF No. 47. Mr. Dace appealed the substantive reasonableness of his combined sentence of 14 years’ imprisonment. ECF No. 40. The Court of Appeals for the Tenth Circuit affirmed the sentence on January 12, 2018. See United States v. Dace , 720 F. App'x 961, 962 (10th Cir. 2018). Mr. Dace did not file a petition for a writ of certiorari, and his conviction and sentence became final on May 6, 2018.

On June 21, 2019 the Supreme Court issued its holding in Rehaif v. United States , which narrowed the scope of § 922(g) and 924(a)(2). See ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). On October 24, 2019 Mr. Dace filed this motion to vacate his conviction and sentence under 28 U.S.C. § 2255. ECF No. 52 at 1. He argues that his plea of guilty to two counts of possessing a firearm as a convicted felon under § 922(g)(1) is constitutionally invalid in light of Rehaif . Id. The government did not respond.

II. ANALYSIS

A. Merits

The provisions of § 2255 allow a prisoner in federal custody to collaterally attack a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. § 2255(a). A § 2255 motion is not a substitute for a direct appeal. See United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994).

Mr. Dace's § 2255 motion argues that his guilty plea is constitutionally invalid in light of the Supreme Court's recent decision in Rehaif v. United States . ECF No. 52 at 1. "A plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’ " Bousley v. United States , 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ). An intelligent plea requires "real notice [to the defendant] of the true nature of the charge against him." Id. (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941) ).

Here, Mr. Dace argues that Rehaif narrowed the scope of § 922(g) and 924(a)(2), two of the four counts to which he pled guilty. ECF No. 52 at 1. Section 922(g)(1) prohibits felons—persons convicted of "a crime punishable by imprisonment for a term exceeding one year"—from possessing a gun. § 922(g)(1). Section 924(a)(2) provides for imprisonment of up to ten years for anyone who "knowingly violates" § 922(g). § 924(a)(2). Under Tenth Circuit law prior to Rehaif , a defendant's knowledge of his status as a felon was not a required element of § 922(g). See United States v. Capps , 77 F.3d 350, 352–54 (10th Cir. 1996). The government needed only prove that the defendant "knew" that he possessed a firearm. See id. In Rehaif , however, the Supreme Court held that the government "must show that the defendant knew he possessed the firearm and also that he knew he had the relevant status when he possessed it." ––– U.S. at ––––, 139 S. Ct. at 2194, 2198 (requiring the government the prove that the defendant knew of his status as an alien "illegally or unlawfully in the United States").

When Mr. Dace pled guilty to violating § 922(g), he was not told that the crime required proof that he knew he had been convicted of a crime punishable by more than one year at the time he possessed the weapon. The record, including his plea agreement and the change of plea hearing, contains no indication that Mr. Dace knew of this element of the crime. ECF Nos. 26, 46. Mr. Dace had received a deferred sentence for his only felony conviction and never served any time in prison. ECF No. 52 at 4. Likewise, in Rehaif the defendant had been sentenced to probation and the Supreme Court found that he therefore may not have known that his offense was punishable by more than one year in prison. See ––– U.S. at ––––, 139 S. Ct. at 2198. This is in contrast to cases in which the court found that the record did support defendants’ knowledge of his status based on the defendants’ stipulation to being a felon or the defendants’ served prison time. See United States v. Daniels , 804 F. App'x 944, 946 (10th Cir. 2020) (finding that the record supported a conclusion that the defendant knew he had been convicted of crimes with a prison term of more than one year because he had stipulated as such and because he had served nearly ten years of a twelve-year prison sentence and over one year on an eight-year prison sentence); United States v. Fisher , 796 F. App'x 504, 510 (10th Cir. 2019) (unpublished) (discussing how difficult it would be for a defendant to show plain error as to knowledge-of-status under § 922(g)(1) when the defendant had spent "over 30 years of his life in prison," and some of his past charges were felonies); United States v. Young , No. CR 17-0694 JB, 2020 WL 33086, at *11 (D.N.M. Jan. 2, 2020) (collecting cases indicating that "Courts of Appeal are willing to uphold pre- Rehaif v. United States convictions under plain and harmless error review when the § 922(g)(1) defendant has a history of lengthy sentences").

Nor is there any basis to presume that Mr. Dace's lawyer informed him of this element. See Hicks v. Franklin , 546 F.3d 1279, 1284 (10th Cir. 2008) (holding that such a presumption is unwarranted unless there is "some factual basis in the record to support it").

Mr. Dace's guilty plea was not intelligent under Rehaif because it did not provide notice to him of the true nature of the charge against him. See Bousley , 523 U.S. at 619, 118 S.Ct. 1604. Thus under Rehaif , Mr. Dace's guilty plea is constitutionally invalid. See id. at 618–19, 118 S.Ct. 1604.

B. Timeliness

I also consider whether Mr. Dace's § 2255 motion is timely. Mr. Dace does not discuss timeliness. The Supreme Court has held that federal district courts "are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). In an unpublished, nonbinding decision the Tenth Circuit extended this rule to federal prisoners’ § 2255 habeas petitions. See United States v. DeClerck , 252 F. App'x 220, 224 (10th Cir. 2007) (unpublished). Although I need not raise timeliness, I do so here because the issues raised in the timeliness analysis are important, and because I disagree with several other federal courts’ timeliness analyses of Rehaif .

"A motion by a federal prisoner for postconviction relief under § 2255 is subject to a one-year period of limitation." See Clay v. United States, 537 U.S. 522, 524, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (citing § 2255(f) ). That limitations period runs from the latest of four dates, though only the following two are relevant here: (1) the date on which the judgment of conviction became final or (2) "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." § 2255(f)(1), (f)(3).

Briefly, Mr. Dace cannot rely on § 2255(f)(1) because he did not file within one year of the date on which his judgment of conviction became final. When, as here, a federal prisoner did not file a petition for a writ of certiorari, the judgment of conviction becomes final when the time for filing a petition expires. See Clay , 537 U.S. at 525, 123 S.Ct. 1072. The time for filing a petition for certiorari expires ninety days after the appellate court issues its mandate. See Sup. Ct. R. 13.3; United States v. Burch , 202 F.3d 1274, 1279 (10th Cir. 2000). Here, the Tenth Circuit issued its mandate affirming Mr. Dace's conviction on February 5, 2018. ECF No. 50. Thus Mr. Dace's conviction became final on May 6, 2018. Because Mr. Dace did not file his § 2255 motion until over one year later on October 25, 2019, his motion is not timely under § 2255(f)(1).

Under § 2255(f)(3) a motion is timely if filed within one year 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." § 2255(f)(3). Here, although Mr. Dace does not expressly discuss timeliness, his § 2255 motion is premised on the Supreme Court's opinion in Rehaif . Rehaif was decided on June 21, 2019 and Mr. Dace filed his § 2255 motion within one year on October 25, 2019. Thus Mr. Dace's § 2255 motion is timely if Rehaif recognizes a new right that applies retroactively to cases on collateral review. See § 2255(f)(3).

The Supreme Court has not expressly...