United States v. Pollard

• Decision Date: 27 August 2021
• Docket Number: No. 20-15958,20-15958
• Citation: 10 F.4th 948
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyronne POLLARD, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.4th 948

UNITED STATES of America, Plaintiff-Appellee,

v.Tyronne POLLARD, Jr., Defendant-Appellant.

No. 20-15958

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2021 San Francisco, California

Filed August 27, 2021

Geoffrey M. Jones (argued), Fairfax, California, for Defendant-Appellant.

Merry Jean Chan (argued), Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; Briggs Matheson, Assistant United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Ryan D. Nelson and Danielle J. Forrest,^* Circuit Judges, and Janis Graham Jack,^** District Judge.

Concurrence by Judge Forrest

R. NELSON, Circuit Judge:

After Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), Tyronne Pollard, Jr., collaterally challenged his felon-in-possession guilty plea because he was not informed of 18 U.S.C. § 922(g)(1) ’s knowledge-of-status element. Because Pollard has not adequately shown cause for his failure to raise this claim on direct appeal or actual prejudice, his claim remains procedurally defaulted. See Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ; see also Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 210 L.Ed.2d 121 (2021). We therefore affirm.

I

In December 2017, Pollard was indicted for possessing a gun as a felon. See 18 U.S.C. § 922(g)(1). As the crime implies, this was not Pollard's first offense. Over the last twenty years, he was convicted of several felonies and served over five years in prison. His federal felon-in-possession indictment was not his first gun-related offense either. In 2004, Pollard was sentenced to over a year in prison for violating California's felon-in-possession statute. So when officers found guns in Pollard's possession in 2017, the federal government's allegations were straightforward: Pollard was a felon who knowingly possessed a gun and ammunition that were transported in interstate commerce. Pollard pled guilty. He was sentenced to 57 months and did not appeal.

A year later, the Supreme Court decided Rehaif , holding that § 922(g)(1) requires the government to prove that the defendant knew he was a felon at the time of possession. See generally 139 S. Ct. at 2191. Pollard then filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255(a), contending that his guilty plea was not intelligent, knowing, or voluntary without having been informed of § 922(g)(1) ’s knowledge-of-status element. The district court denied Pollard's motion because he had not shown actual prejudice and thus failed to overcome the procedurally defaulted nature of his claim. This appeal followed.

II

We have jurisdiction under 28 U.S.C. § 2253(a) and review the denial of Pollard's § 2255 motion de novo. United States v. Hardiman , 982 F.3d 1234, 1236 n.1 (9th Cir. 2020) (per curiam) (citation omitted).

III

"Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal."

Bousley , 523 U.S. at 621, 118 S.Ct. 1604 (internal quotation marks and citation omitted). And like any petitioner who tries to collaterally attack a guilty plea, Pollard must overcome "significant procedural hurdles" before a court can reach the merits of his challenge. Id. Specifically, Pollard's motion is procedurally defaulted since he did not appeal his conviction in 2018. Id. Thus, Pollard must show (1) cause for why he did not object to or directly appeal the alleged error and (2) actual prejudice resulting from the error to overcome that default. Id. at 622, 118 S.Ct. 1604 (citation omitted); Murray v. Carrier , 477 U.S. 478, 485, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986) (citation omitted).¹ This showing is "a significantly higher hurdle than would exist on direct appeal." United States v. Frady , 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Pollard has neither shown cause nor actual prejudice.

A

"[A]bsent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel." Reed v. Ross , 468 U.S. 1, 13, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). This means a defense counsel's inadvertent or intentional decision to not pursue a claim at trial or on appeal is insufficient to show cause on collateral review. Carrier , 477 U.S. at 486, 106 S.Ct. 2678. Instead, cause turns on whether "some objective factor external to the defense impeded counsel's efforts" to raise a claim. Id. at 488, 106 S.Ct. 2678.

The Supreme Court has not catalogued every situation that can constitute cause. See Ross , 468 U.S. at 13, 104 S.Ct. 2901. It has given examples though. For instance, a defendant has shown cause when the claim is "so novel that its legal basis is not reasonably available to counsel." Id. at 16, 104 S.Ct. 2901 ; see also Carrier , 477 U.S. at 488, 106 S.Ct. 2678. In other words, the claim is not one where "other defense counsel have perceived and litigated that claim." Engle v. Isaac , 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Thus, if a petitioner had the tools to construct the legal argument during his underlying proceedings, the argument is not novel enough to constitute cause for failing to raise it earlier. See Anderson v. Kelley , 938 F.3d 949, 962 (8th Cir. 2019). For this reason, the petitioner's claim in Bousley was not novel given "the Federal Reporters were replete with cases involving" the same claim. 523 U.S. at 622, 118 S.Ct. 1604.

Novelty and futility are not the same, however. By definition, a futile claim is never novel—it has been perceived and raised at one point, even if ultimately rejected by a reviewing court. See Isaac , 456 U.S. at 134, 102 S.Ct. 1558. Defense counsel may choose not to pursue a claim that has been rejected, but that is not to say the claim does not exist. A defendant's "opportunity to object" is not the same as his "likelihood of prevailing on the objection." Greer , 141 S. Ct. at 2099. Hence the Eleventh Circuit aptly noted, "[i]n procedural default cases, the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all." Lynn v. United States , 365 F.3d 1225, 1235 (11th Cir. 2004) (citing Smith v. Murray , 477 U.S. 527, 534, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) ).

So what impact does futility have on a procedurally defaulted claim? None. "[F]utility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Bousley , 523 U.S. at 623, 118 S.Ct. 1604 (citation omitted). For that reason, the Supreme Court did not excuse Bousley's default simply because the lower court had previously rejected the same claim. Id. Put simply, procedural default is a high bar, overcome only in "exceptional circumstances," Ross , 468 U.S. at 13, 104 S.Ct. 2901, and arguing futility does not clear that bar. The opportunity for habeas relief is not a second chance to litigate issues previously available to a defendant.

Applying these principles, Pollard has not shown cause. Section 922(g)(1) ’s knowledge-of-status argument is not novel. In fact, prior to Rehaif , defendants throughout the country had repeatedly raised the argument. See Rehaif , 139 S. Ct. at 2199. True, every court to address the issue since § 922(g)(1) ’s most recent amendment had rejected finding a knowledge-of-status element. See id. at 2195 ; id. at 2210 n.6 (Alito, J., dissenting) (collecting cases); see also, e.g. , United States v. Miller , 105 F.3d 552, 555 (9th Cir. 1997) (rejecting a knowledge-of-status element). But, again, futility is insufficient to overcome procedural default. Because "the Federal Reporters were replete with cases" raising the same argument, Pollard's knowledge-of-status argument was reasonably available to him at the time he pled guilty, and thus he has not adequately shown cause. See Bousley , 523 U.S. at 622, 118 S.Ct. 1604.

The district court erred by concluding otherwise. It distinguished Bousley ’s futility language from Pollard's motion since the underlying issue in Bousley was subject to a circuit split but the underlying issue in Rehaif was not. True enough. Compare Bousley , 523 U.S. at 618, 118 S.Ct. 1604, with Rehaif , 139 S. Ct. at 2201 (Alito, J., dissenting). But it does not matter how futile a claim is. Whether a claim is futile or "entirely futile" (as Pollard argues), Bousley gives a bright-line rule: futility is not enough to show cause. 523 U.S. at 623, 118 S.Ct. 1604 (citation omitted); see also Isaac , 456 U.S. at 130, 102 S.Ct. 1558. Pollard may not have succeeded in raising the argument, but he had the opportunity to do so. See Greer , 141 S. Ct. at 2099.

Pollard also argues his claim was novel under Ross , but we are unpersuaded. Ross outlined three situations when defense counsel would not have had a "reasonable basis" to raise a claim: the Supreme Court (1) explicitly overrules its precedent; (2) "overturn[s] a longstanding and widespread practice to which [it] has not spoken, but which a near-unanimous body of lower court authority has expressly approved"; or (3) disapproves a practice that it "arguably ha[d] sanctioned in prior cases." 468 U.S. at 17, 104 S.Ct. 2901 (alteration adopted) (citations omitted). Pollard thinks the second situation applies since the Supreme Court reversed every circuit when deciding Rehaif .

But Ross is inapplicable. Foremost, Ross confined its "attention to the specific situation presented [t]here: one in which this Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application." Id. (emphasis added). Rehaif , however, was a matter of statutory interpretation, so Ross ’s examples of novel claims do not apply. The second situation is also dicta, not explaining when a practice qualifies as "longstanding and widespread."² See id. at 17, 104 S.Ct....