United States v. Pollard

• Decision Date: 21 December 2021
• Docket Number: No. 20-15958,20-15958
• Citation: 20 F.4th 1252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyronne POLLARD, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

20 F.4th 1252

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 December 21, 2021

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

Merry Jean Chan (argued) and Briggs Matheson, Assistant United States Attorneys; Matthew M. Yelovich, Chief, Appellate Section, Criminal Division; Stephanie M. Hinds, Acting United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Geoffrey Hansen, Acting Federal Public Defender; Carmen Smarandoiu, Chief, Appellate Unit; Office of the Federal Public Defender, San Francisco, California; Cuauhtemoc Ortega, Federal Public Defender; Brianna Mircheff, Deputy Federal Public Defender, Los Angeles, California; for Amici Curiae Ninth Circuit Federal Public and Community Defender Offices.

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

Order;

Opinion by Judge R. Nelson ;

Concurrence by Judge R. Nelson ;

Concurrence by Judge Forrest

ORDER

The Opinion filed August 27, 2021, and appearing at 10 F.4th 948 (9th Cir. 2021), is withdrawn and substituted. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. The Clerk is directed to file the replacement opinion submitted with this order. The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED. Subsequent petitions for rehearing or rehearing en banc may be filed.

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 actual prejudice, his claim remains procedurally defaulted. See Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 2098, 210 L.Ed.2d 121 (2021). We therefore affirm the prejudice portion of the district court's order.

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 ––– U.S. ––––, 139 S. Ct. 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.¹ 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 v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (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 ; Murray v. Carrier , 477 U.S. 478, 485, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986).² 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). "In applying this dual standard to the case before us, we find it unnecessary to determine whether [Pollard] has shown cause, because we are confident he suffered no actual prejudice of a degree sufficient to justify collateral relief." Id. at 168, 102 S.Ct. 1584.³

A petitioner who pled guilty is prejudiced if there is "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez , 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). A court cannot consider whether a defendant's decision to go to trial "may have been foolish." United States v. Monzon , 429 F.3d 1268, 1272 (9th Cir. 2005) (citation omitted). But a court can consider whether evidence "proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error" was not prejudicial. United States v. Benamor , 937 F.3d 1182, 1189 (9th Cir. 2019).

This evidence can be either direct or circumstantial. Rehaif , 139 S. Ct. at 2198 (citing Staples v. United States , 511 U.S. 600, 615 n.11, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ). And "[i]n a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb" for a simple reason: "If a person is a felon, he ordinarily knows he is a felon." Greer , 141 S. Ct. at 2097. Thus, we often consider a defendant's criminal history to determine whether a Rehaif error was prejudicial. E.g., Benamor , 937 F.3d at 1189 (finding "no probability" that Benamor did not know of his status after serving multiple years in prison for seven felonies, including a state felon-in-possession conviction); United States v. Tuan Ngoc Luong , 965 F.3d 973, 989 (9th Cir. 2020) (finding "no reasonable probability" of a different outcome when the defendant was in prison for over a decade with six prior felony convictions); United States v. Johnson , 979 F.3d 632, 638–39 (9th Cir. 2020) (three felony convictions and over five years in prison made it "overwhelming and uncontroverted" that Johnson knew of his felon status). Thus, demonstrating prejudice under Rehaif will be difficult for most convicted felons. See United States v. Door , 996 F.3d 606, 619 (9th Cir. 2021) ("[A]bsent any evidence suggesting ignorance," the jury can " ‘infer that a defendant knew that he or she was a convicted felon from the mere existence of a felony conviction’ as evidenced by the defendant's stipulation." (citation omitted)).

Given Pollard's criminal history and the record below, there is no probability that he was unaware of his felon status. Before his current conviction, Pollard had served over five years in prison for committing numerous felonies. And like in Benamor , Pollard had also been convicted under a state felon-in-possession statute. See 937 F.3d at 1189. Pollard's plea colloquy also shows he knew he was a felon. When the district court asked him why he was being convicted, Pollard responded, "I possessed a firearm that I wasn't supposed to have." And after the court asked why Pollard was not supposed to have a gun, Pollard replied, "Because I am a felon and my rights have been—didn't have the right to have it no more." In short, everything in the record shows Pollard was aware of his felon status. Unsurprisingly, Pollard concedes there is little question that one can reasonably infer from his criminal history that he must have known he had served more than a year in prison for a felony offense.

Still, Pollard argues that the question is not whether a jury would have convicted him (the inquiry in cases like Benamor ), but whether he personally would have gone to trial despite the uncontroverted evidence of guilt. In essence, Pollard asks us to ignore the writing on the wall and accept his bare assertion on collateral review that he would not have pled guilty. We reject this purely subjective (and potentially post hoc) inquiry as it does not track recent Supreme Court precedent.

In Lee v. United States , Lee, a South Korean national living in the United States, was repeatedly assured by his attorney that he would not be deported if he pled guilty. ––– U.S. ––––, 137 S. Ct. 1958, 1963, 198 L.Ed.2d 476 (2017). This advice was wrong, Lee pled guilty, and he was ordered deported. Id. at 1962–63. He filed a § 2255 motion, asking to vacate his guilty plea as he would not have pled guilty but for his attorney's error. Id. The Supreme Court agreed, but not because of Lee's arguments during the habeas proceedings. Id. at 1969. Instead, the Court looked to the underlying record. Id. at 1968–69. It was clear that "avoiding deportation was the determinative factor" and that Lee "would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a ‘Hail Mary’ at trial." Id. at 1967. Lee repeatedly made this clear throughout his proceedings, stating during his plea colloquy that the possibility of deportation would affect his decision to plead. Id. at 1968–69. These indications in the record were enough for Lee to show actual prejudice—i.e., that he would have gone to trial absent the error. Id. at 1969.

The analysis in Lee reflects a broader principle applicable here. The underlying record must demonstrate a reasonable...