MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Defendant's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 30). On the Court's Order, the Government has filed an Answer (Response, ECF No. 36). Despite an extension of time until November 18, 2019, to do so, Mock has not filed a reply in support (See ECF Nos.
Mock was arrested on a Complaint charging him with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being in possession methamphetamine and fentanyl with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)(ECF No. 1). He waived indictment and agreed in a formal Plea Agreement (ECF No. 21) to plead to an Information charging him with being a felon in possession of a firearm (ECF No. 20). The parties agreed on a disposition which included a term of imprisonment of not more than seventy months (ECF No. 21, PageID 41). After a presentence investigation, Judge Rose sentenced Mock to a below-Guidelines sixty months imprisonment (Judgment, ECF No. 28). Mock took no appeal, but filed the instant Motion to Vacate eight months later.
Mock pleads three grounds for relief:
(Despite directing the Court in the Motion to see the attached memorandum, guideline application is not separately argued in the Memorandum.)
Relying on Rehaif v. United States, 139 S.Ct. 2191 (2019), Mock claims he did not know, within the meaning of that term in § 922(g), that he was a felon or that he was in possession of the firearms under the driver's seat. Id. at PageID 80.
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" Mallett v. United States, 334 F.3d 491, 496-97 (6
Persons convicted of federal crimes have a right to appeal to the appropriate circuit court of appeals and to seek review in the United States Supreme Court. Considering the efficiency of having all issues dealt with in one proceeding, the federal courts have encouraged use of direct review to the fullest possible extent. Yackle, POSTCONVICTION REMEDIES, §108 (1981). A motion to vacate under § 2255 is not a substitute for direct appeal. United States v. Duhart, 511 F.2d 7 (6
Sentencing Guideline violations are not cognizable in a Motion to Vacate. Grant, supra. Therefore Mock's Second Ground for Relief should be dismissed.
The United States Attorney reads Mock's Motion to Vacate as raising claims of error in two ways, substantively (or directly) or as underlying his ineffective assistance of trial counsel claims. For example, Ground One, Sub-claim A asserts trial counsel was ineffective for failing to object to use of misdemeanor convictions for assessing criminal history points. That can be read as a direct claim of trial court error or as underlying the ineffectiveness claim.
It is well-established that a § 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6
Mock took no appeal in this case, so he has procedurally defaulted all of those claims which he could have raised on direct appeal but did not, unless he can show excusing cause and prejudice or actual innocence. Mock does not make a claim of actual innocence as that phrase is understood in Bousley, i.e., factual innocence proven by new evidence not presented at trial. See Schlup v. Delo, 513 U.S. 298 (1995); Souter v. Jones, 395 F.3d 577 (6
The governing standard for ineffective assistance of trial counsel was adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
466 U.S. at 689.
As to the second prong, the Supreme Court held:
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6
A federal defendant does not procedurally default a claim of ineffective assistance of trial counsel by failing to raise it on direct appeal even if it could have been raised and decided there. Massaro v. United States, 538 U.S. 500 (2003); United States v. Neuhausser, 241 F.3d 460 (6
Mock's underlying substantive claims must be evaluated, however, to determine whether it was ineffective assistance of trial counsel to fail to raise them. It cannot be ineffective assistance to fail to raise a claim which would not have been successful.
In Sub-claim A, Mock asserts counsel was ineffective for failing to object to the use of misdemeanor convictions in assessing criminal history points and in failing to object to the use of convictions occurring earlier than what he refers to as the "statute of limitations."
The Magistrate Judge has examined the Presentence Investigation Report and finds that the first prior conviction on which points was assessed was Mock's conviction in the Montgomery County Court of Common Pleas in its Case No. 05CR4295 for having weapons under disability, a felony for which Mock received a three-year sentence of imprisonment and for which he was assessed three criminal history points. This assessment is accurate because Mock was imprisoned more than thirteen months and the sentence expired less than fifteen years before the offense of which he was convicted in this case. He was assessed one point each for his convictions for public indecency, minor misdemeanor possession of marijuana, having physical control of a motor vehicle while under the influence/driving under suspension, and criminal damaging. Finally, he was assessed three points for his 2014 conviction in the Montgomery County Court of Common Pleas for arson and having weapons while under disability for which he was imprisoned for eighteen months. The PSI also indicates two points were added because the instant offense was committed while on probation to the Vandalia Municipal Court. Those total to twelve points which places Mock in criminal history category 5. The Magistrate Judge finds no incorrect application of the Guidelines in assessing these points. Mock's claim that he received six history points for misdemeanors not listed is not supported by examination of the PSI. And while convictions outside the fifteen year limit in the Guidelines are listed in the PSI, no criminal history points were assessed. Because the criminal history assessment was correct, trial counsel did not provide ineffective assistance in failing to challenge it.
In Subclaim B, Mock claims he received ineffective assistance of trial counsel when his attorney did not object to his being labeled a felon in possession of a weapon because he claims he was never informed when he completed probation on prior convictions of the penalty for being in possession of a firearm thereafter and was also unaware of the firearms of which he was found to be in possession.
Mock's claim that he did not know about the firearms under the driver's seat is rebutted by the Statement of Facts attached to the Plea Agreement in which Mock admitted that he "possessed a firearm after having been previously convicted of a felony offense." (ECF No. 21, PageID 44). In the same Statement of Facts he admitted that the Dayton Police on July 5, 2018, found him "in possession of two stolen firearms. . ." Id. The Statement of Facts also lists five prior felony convictions which Mock admits. Id. Finally, in signing the document, he acknowledged that it was true and correct. Id. at PageID 45. The Statement of Facts was thoroughly discussed along with the balance of the Plea Agreement at the time Mock entered his plea (Transcript, ECF No. 34). Mock cannot now credibly claim that he did not know he possessed the two stolen firearms or that he had been previously convicted of the five listed felonies.
The merits of Mock's Rehaif claim are discussed separately below.
In Subclaim C Mock asserts his attorney did not consult with him about appeal or file the notice of appeal he requested. Failure to file a notice of appeal on request is ineffective assistance without any showing of prejudice. Ludwig v. United States, 162 F.3d 456 (6
As the Government points out, Mock provides no evidentiary support for his claim that he requested his trial attorney to file a notice of appeal; there is no affidavit attached to the Motion to Vacate which gives any detail about the circumstances in which the request to appeal was made, e.g., was it written or oral, where and when did it happen, was it before or after the appeal deadline? The Court cannot infer a request for appeal from the circumstances. Counsel had negotiated a plea agreement under which the drug charges were dismissed and there was an agreed sentence of not more than seventy months on the remaining charge. Judge Rose had actually imposed a sentence ten months below the agreed sentence and two years below the bottom of the Guideline range. Under these circumstances, the natural inference would be that Mock did not want to appeal. In the absence of some admissible evidence that Mock requested an appeal, Subclaim C is without merit and should be dismissed.
In sum, Ground One for Relief is without merit and should be dismissed.
Mock was sentenced on January 29, 2019. His time to appeal therefore expired February 12, 2019. Fed. R. App. P. 4(b)(1)(A). On June 21, 2019, the Supreme Court of United States decided Rehaif v. United States, 139 S.Ct. 2191 (2019). Rehaif had been convicted by a jury of possessing a firearm while being an alien illegally in the country. The jury had been instructed that the Government did not have to prove Rehaif knew he was in the country illegally and the Supreme Court found that instruction was in error.
In the course of the decision, the Court interpreted 18 U.S.C. § 924(a)(2):
139 S. Ct. at 2195-96. While Rehaif dealt with the status element of being an alien illegally or unlawfully in the country, the interpretation extends logically to all of the status elements in § 922(g), including being "any person. . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;" § 922(g)(1). While there is no precedent directly in point as yet, the Magistrate Judge interprets Rehaif to mean that, if Mock were tried today for being a felon in possession of a firearm, the Government would have to prove beyond a reasonable doubt that he knew he had been convicted of a crime punishable by imprisonment for more than a year and the trial judge would have to instruct the jury to that effect.
However, Rehaif provides no relief for Mock for at least two reasons.
First of all by entering into a plea agreement and then pleading guilty pursuant to that agreement, Mock relieved the Government of any obligation to prove anything. A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); Abdus-Samad v. Bell, 420 F.3d 614, 631 (6
Brady v. United States, 397 U.S. 742, 755 (1970). The voluntariness of a guilty or no contest plea is determined in light of all relevant circumstances surrounding the plea. Brady, 397U.S. at 749. If a prosecutor's promise is illusory, then a plea is involuntary and unknowing. United States v. Randolph, 230 F.3d 243, 250-51 (6th Cir. 2000). However, where a defendant is "fully aware of the likely consequences" of a plea, it is not unfair to expect him to live with those consequences. Mabry v. Johnson, 467 U.S. 504, 511 (1984). A plea-proceeding transcript which suggests that a guilty or no contest plea was made voluntarily and knowingly creates a "heavy burden" for a petitioner seeking to overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326-28 (6th Cir. 1993). Where the transcript shows that the guilty or no contest plea was voluntary and intelligent, a presumption of correctness attaches to the state court findings of fact and to the judgment itself. Id. at 326-27.
The transcript of the plea colloquy in this case shows that Judge Rose carefully discussed with Mock the effect of his plea agreement and guilty plea and determined that it was knowing, intelligent, and voluntary. By agreeing to the Statement of Facts under oath, Mock admitted that he knew he had been convicted of crimes carrying terms of imprisonment of more than a year, sufficient facts for conviction under Rehaif.
Second, Rehaif was not the law when Mock was convicted but only became the law several months later. Rehaif reached the Supreme Court on direct appeal by the Government from decision in the Eleventh Circuit. Thus the Court did not have occasion to discuss application of its decision to cases, like Mock's, on collateral review. The Supreme Court has a general rule by which we can determine that question, however. 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).
"Two exceptions to the Teague rule, however, permit the retroactive application of a new rule whenever: 1) the rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or otherwise prohibits imposition of a certain type of punishment for a class of defendants because of their status or offense; or 2) the rule announces a new "watershed" rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." In re Carl Green, 144 F.3d 384, 386 (6
Because Mock pleaded guilty and because Rehaif does not apply retroactively to this case, Mock's Third Ground for Relief should be dismissed.
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the Motion to Vacate be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).