United States v. Jones

Decision Date30 January 2021
Docket NumberAlso 3:20-cv-430,Case No. 3:16-cr-059
PartiesUNITED STATES OF AMERICA, Plaintiff, v. DANIEL E. JONES, Defendant.
CourtU.S. District Court — Southern District of Ohio

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This case is before the Court upon the filing of what Defendant has captioned "Objections to the Magistrate Judge's Report and Recommendations" (ECF No. 75).

Status of the Current Filing

This filing cannot properly be considered as objections made under Fed.R.Civ.P. 72(b)(3) because they are very untimely. The Report and Recommendations to which Jones makes objection was filed and served October 23, 2020 ("Report," ECF No. 60). When Defendant failed to file objections within the seventeen days allowed by law (November 9, 2020) and indeed had not done so by ten days later, District Judge Rice on November 19, 2020, adopted the Report and dismissed the case ("Order", ECF No. 63; "Judgment", ECF No. 64)1.

On December 7 and 8, 2020, Jones moved to reopen the case (ECF Nos. 66 and 67). On December 8, 2020, the Magistrate Judge acknowledged that these motions were timely under Fed.R.Civ.P. 59(e) and allowed Petitioner to supplement them with the arguments he would have made in timely objections (Order, ECF No. 68). Defendant has now presented those arguments in the instant "Objections." However, the arguments are not to be evaluated under the de novo standard of Fed.R.Civ.P. 72(b)(3), but rather under the standard applicable to motions to amend under Fed.R.Civ.P. 59(e).

Rule 59(e) Standard

For a district court to grant relief under Rule 59(e), "there must be '(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009) (quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).

Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted). Thus, parties should not use them to raise arguments which could and should have been made before judgment issued. Id. Motions under Rule 59(e) must establish either a manifest error of law or must present newly discovered evidence. Id. In ruling on a Fed.R.Civ.P. 59(e) motion, "courts will not address new arguments or evidence that the moving party could have raised before the decision issued. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163-164 (3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U. S. 471, 485-486, n. 5, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008) (quoting prior edition)." Bannister v. Davis, 140 S. Ct. 1698, 1703, 207 L.Ed. 2d 58 (2020).

Analysis

Jones first argues the Report, the Order, and the Judgment are in error in finding his Motion to Vacate under § 2255 is untimely.

The Report concluded that "Jones took no appeal, so his conviction became final when his time to appeal expired January 14, 2018. Aside from a Motion for Compassionate Release, nothing further was filed in the case until Jones deposited his § 2255 Motion in the prison mail on October 19, 2020." (Report, ECF No. 60, PageID 198). For any claim that was ripe when the conviction became final, the statute of limitations expired January 15, 2019. 28 U.S.C. § 2255(f)(1).

Defendant makes a lengthy claim that Bureau of Prisons officials interfered with his ability to file, but he claims that interference began on March 16, 2020, when he was placed in the Special Housing Unit at FCI Beckley (ECF No. 85, PageID 281). This date is, of course, two months after the statute ran on claims ripe at the time the conviction became final.

Retroactivity of Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019)

Jones makes no substantive claim that was ripe when his conviction became final. Instead, he claims entitlement to relief under Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019), decided June 21, 2019. Under 28 U.S.C. § 2255(f)(3), the one-year statute of limitations, instead of running from the finality of the conviction, can run from "(3) 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." Jones asserts that, because he is raising a claim under Rehaif, his time to file did not expire until June 19, 2020,and the further delay of four months until he actually filed on October 19, 2020, should be equitably tolled.

The Report noted that Rehaif did not discuss retroactivity at all, and thus did not newly recognize a right and make it retroactively applicable to cases on collateral review, as required by § 2255(f)(3)(ECF No. 60, PageID 200). Defendant correctly asserts that Rehaif was a case of statutory interpretation (Objections, ECF No. 75, PageID 286, citing Khamisi-El v. United States, 800 Fed. Appx. 344, 349 (6th Cir. 2020)).

The crucial next step in Defendant's logic is that Rehaif applies retroactively precisely because it is a case of statutory interpretation (Motion, ECF No. 75, PageID 286, citing Bousley v. United States, 523 U.S. 614, 620 (1998)(Stevens, concurring in part and dissenting in part), and United States v. O'Brien, 560 U.S. 218 (2010). Jones continues:

Whether Rehaif has been made retroactive to cases on collateral review by the Supreme Court turns on the nature of Rehaif's rule. Under the retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), new procedural rules are not retroactive to cases on collateral review. But new substantive rules, the Supreme Court has established, are retroactively applicable on collateral. Bousley v. United States, 523 U,S, 614, 620 (1998).

Id.

Thus Jones does not assert the Supreme Court expressly made Rehaif applicable to cases on collateral review. Instead, he asserts the Court implicitly did so by creating a new substantive rule.

Jones cites no case authority holding that Rehaif applies on collateral review. The closest he comes is Baker v. United States, 2020 U.S. App. LEXIS 8025 (6th Cir. Mar. 12, 2020)(Daughtrey, J.), in which a single judge of the Sixth Circuit held that the question of whetherRehaif applies on collateral review is debatable among jurists of reason and granted petitioner a certificate of appealability on that question. Judge Daughtrey wrote:

Finally, in his third motion to amend his § 2255 motion, Baker argued that his § 922(g) felon-in-possession conviction should be vacated under Rehaif, which held that the government must prove that a defendant knew that he possessed a firearm and also that he knew that he was a felon and thus barred from possessing a firearm. 139 S. Ct. at 2200. The district court denied Baker's motion to amend his § 2255 motion to add this claim, holding that the Supreme Court has not held that the rule announced in Rehaif applies retroactively to cases on collateral review. Reasonable jurists could debate that decision, and thus a COA will issue for this claim.

Id. at *8-9. Judge Daughtrey's opinion does not reveal any of the underlying arguments Baker made for retroactivity or her own position on retroactivity. The Sixth Circuit has not yet decided Baker's appeal.

Because Jones cites no controlling authority, this Court must decide for itself whether Rehaif applies retroactively to cases on collateral review. Whether a Supreme Court decision applies retroactively should be decided by the district court in the first instance. Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004).

Jones principally relies on Teague v. Lane, supra. The critical holding in Teague is that, subject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final may not provide the basis for federal habeas relief if it announces a new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989). A Supreme Court decision announces a new rule where the issue addressed was susceptible to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-415 (1990).

The rule announced in Rehaif is that the scienter element of "knowingly" applies to every element of each of the crimes defined in 18 U.S.C. § 922(g). That is the Government must allege and prove that a defendant acted knowingly with respect to each of those elements.

In Rehaif the Supreme Court interpreted 18 U.S.C. § 922(g) which provides criminal penalties for certain classes of persons to possess firearms, including
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