Westbrook v. United States

• Decision Date: 07 May 2021
• Docket Number: No. 2:20-cv-02353-TLP-tmp,2:20-cv-02353-TLP-tmp
• Parties: DEVION WESTBROOK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

DEVION WESTBROOK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 2:20-cv-02353-TLP-tmp

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

May 7, 2021

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 Devion Westbrook¹ moves under 28 U.S.C. § 2255 to vacate his sentence. (ECF No. 1.) And the Government responded. (ECF No. 5). For the reasons below, the Court DENIES and DISMISSES Petitioner's § 2255 Motion.

BACKGROUND

I. Criminal Case No. 17-20353

In November 2017, a federal grand jury indicted Petitioner with one count of being a felon in possession of a firearm affecting interstate commerce, in violation of 18 U.S.C. § 922(g)(1) (Count 1), and one count of possessing a firearm after being convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9) (Count 2). (Cr. No. 17-20353, ECF No. 1 at PageID 1-2.) In April 2018, Petitioner pleaded guilty in open court,without a plea agreement, to Count 1 of the Indictment, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Id. at ECF No. 30; see also ECF No. 31.) And on July 18, 2018, the Court sentenced Petitioner to 57 months imprisonment, followed by three years supervised release. (Id. at ECF No. 42; see ECF No. 43 at PageID 120-21.) The Government dismissed Count 2 of the indictment. (See id. at PageID 119.) And Petitioner did not appeal.

II. The § 2255 Motion, Civil Case No. 20-2353

On May 18, 2020, Petitioner moved to vacate the sentence under § 2255 asserting these grounds for relief based on Rehaif v. United States, 139 S. Ct. 2191 (2019):

1. Petitioner is actually innocent of violating Section 922(g)(1) as charged in the indictment because the Government failed to prove that Petitioner knew he belonged to the relevant category of persons barred from possessing a firearm (see Civ. No. 20-2353, ECF No. 1 at PageID 4);

2. Petitioner's indictment is deficient because it does not charge the "knowingly" provision of 18 U.S.C. § 924(a)(2), the penalty section for violating 18 U.S.C. § 922(g) (id. at PageID 5); and

3. Petitioner's plea was not intentionally, knowingly, and voluntarily entered because Petitioner did not receive real notice of the true nature of the charge against him, and neither the defendant, his counsel, nor the Court understood the essential elements of the crime until the Rehaif holding (id. at PageID 7).

(See ECF No. 1-1 at PageID 15-19.)² Petitioner contends that the § 2255 Motion is timely filed under Rehaif and based on the one-year statute of limitations provided in 28 U.S.C. § 2255(f)(3). (ECF No. 1 at PageID 11.) He requests that the Court vacate his conviction under 18 U.S.C. § 922(g)(1). (Id. at PageID 12.)

In its opposition, the Government argues that (1) Petitioner did not timely file his § 2255 Motion; (2) the procedural default doctrine bars the claims; and (3) the indictment was not defective. (ECF No. 5. at PageID 30-36.) Petitioner did not reply.

STANDARD OF REVIEW

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.

And "[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) (citation and internal quotation marks omitted).

But a § 2255 motion does not replace a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). Instead, "[d]efendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). Yet this rule is not absolute:

If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a "complete miscarriage of justice," it seems to us that what is really being asserted is a violation of due process.

Id.

In sum, when a Petitioner could have raised constitutional claims on direct appeal (but did not), procedural default will bar those claims unless the defendant shows cause and prejudice sufficient to excuse his failure to raise those issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors).

Alternatively, a court will review a procedurally defaulted claim if a defendant shows his "actual innocence." Bousley, 523 U.S. at 622. "[P]risoners asserting innocence as a gateway to defaulted claims must establish that . . . it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 536-37 (2006) (internal quotation marks omitted). And in Bousley, the Supreme Court remanded the case to give the inmate an opportunity to show actual innocence. 523 U.S. at 623. That said,

[i]t is important to note in this regard that "actual innocence" means factual innocence, not mere legal insufficiency. In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make. Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy and would not normally have been offered before our decision in Bailey.

Id. at 623-24 (citation omitted).

Using these standards, the Court will now address the merits of Petitioner's § 2255 motion.

ANALYSIS

To give background on Rehaif, the Supreme Court issued its decision on June 21, 2019—after the trial court here sentenced Petitioner. In Rehaif 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 ofpersons barred from possessing a firearm."³ Rehaif, 139 S. Ct. at 2200. The defendant in Rehaif violated 18 U.S.C. § 922(g)(5)(A), which prohibits persons who are "illegally or unlawfully in the United States" from possessing firearms. Id. at 2194. The penalty provision, 18 U.S.C. § 924(a)(2), refers to persons who "knowingly" violate § 922(g). On appeal, Rehaif argued that the trial judge erred in instructing the jury that he did not need to know that he was in the country unlawfully. Rehaif, 139 S. Ct. at 2195. The Supreme Court explained that,

[w]ith some here-irrelevant omissions, § 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) a jurisdictional element ("in or affecting commerce"); and (4) a firearm element (a "firearm or ammunition").

Id. at 2195-96. The word "knowingly" does not apply to the jurisdictional element, but it applies to the remaining elements. Id. at 2196. And the Supreme Court "express[ed] no view . . . about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue." Id. at 2200.

Unfortunately for Petitioner here, the Rehaif decision does not lead to the relief he seeks. That is because 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 a court could apply Rehaif retroactively on collateral review); In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019); Wallace v. United States, 458 F. Supp. 3d 834 (M.D. Tenn. 2020) ("Wallace'sclaim has no merit as Rehaif does not provide him relief in this collateral proceeding"), appeal filed Wallace v. United States, No. 20-5764 (6th Cir. July 7, 2020); see Moore v. United States, No. 2:19-cv-2752-TLP-tmp, 2019 WL 4394755, at *1-2 (W.D. Tenn. Sept. 12, 2019) (defendant who pleaded guilty and accepted responsibility for his action had no right to collateral review of his conviction under Rehaif); see also Robertson v. United States, No. 2:19-cv-02791-TLP-tmp, 2020 WL 6852661, at *3 (W.D. Tenn. Nov. 20, 2020) (same). So Petitioner's reliance on Rehaif here is misplaced.

I. Time-Barred

For starters, the Government argues that Petitioner's motion is untimely. To bring a claim under § 2255, the petitioner must move to vacate his sentence within one year of:

(1) the date on which the judgment of conviction becomes

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