1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARTHUR L. POWELL, ) NO. EDCV 19-1732-PSG (AGR) 12 ) Petitioner, ) 13 ) ) 14 L.J. MILUSNIC, Warden, ) ORDER TO SHOW CAUSE ) 15 Respondent. ) ) 16 ) ) 17 18 On September 11, 2019, Petitioner filed a Petition for Writ of Habeas 19 Corpus by a Person in Federal Custody (“Petition”), pursuant to

2241. For the reasons set forth below, Petitioner is ordered to show cause on or 21 before November 22, 2019, why the Court should not dismiss the Petition for 22 lack of jurisdiction. 23 24 25

26 27 28 1 I. 2 PROCEDURAL BACKGROUND 3 On September 6, 2016, Petitioner pled guilty to Count 1 of the indictment 4 charging him with being a felon in possession of a firearm in violation of 18

(g)(1) in the District of Minnesota. (Exh. A to Petition, docket entries 6 29, 30, 54 on docket sheet in United States v. Powell, CR 16-187 PJS (D. Minn.) 7 (hereinafter “Minnesota Action”).1 On appeal, the Eighth Circuit vacated his 8 sentence and remanded for resentencing. United States v. Powell,

Appx. 531, 531-32 (8th Cir. 2018). On remand, Petitioner was sentenced to 120 10 months in prison and two years of supervised release. (Minnesota Action, Re- 11 Sentencing Judgment on Remand, Dkt. No. 70.) There is no indication on the 12 docket that Petitioner filed an appeal or a

motion in the 13 Minnesota Action. 14 II. 15 JURISDICTION 16 Petitioner, a federal prisoner within the Central District of California, filed 17 the Petition challenging his conviction. He argues that he pled guilty to “a 18 nonexistent offense” under Rehaif v. United States,

(2019). 19 Pursuant to Rehaif, the Government had to prove beyond a reasonable doubt 20 that Petitioner (1) was previously convicted of an offense punishable by more 21 than one year in prison (meaning he was a “felon”); (2) knowingly possessed a 22 firearm in or affecting interstate commerce; and (3) knew he was a felon.

at 23 2194; United States v. Benamor,

,

, 24 *7 (9th Cir. Sept. 5, 2019). Petitioner argues structural error because the district 25 court did not inform him the third element. (Petition at 8.) 26 “An application for a writ of habeas corpus in behalf of a prisoner who is 27 28 1 The court takes judicial notice of Petitioner’s prior federal criminal case. Fed. R. Evid. 201; Trigueros v. Adams,

(9th Cir. 2011). 1 authorized to apply for relief by motion pursuant to this section, shall not be 2 entertained if it appears that the applicant has failed to apply for relief, by motion, 3 to the court which sentenced him, or that such court has denied him relief, unless 4 it also appears that the remedy by motion is inadequate or ineffective to test the 5 legality of his detention.”

(e). 6 To meet the “escape hatch” provisions of § 2255(e), Petitioner must show 7 he (1) made a claim of actual innocence and (2) has not had an unobstructed 8 procedural shot at presenting that claim. Marrero v. Ives,

, 1192 9 (9th Cir. 2012). 10 Petitioner makes no showing that he is factually innocent of the crime of 11 conviction. “‘”[A]ctual innocence” means factual innocence, not mere legal 12 insufficiency.’”

. Petitioner introduces no evidence indicating he did 13 not know he had previously been convicted of a felony.

; see, e.g., 14 United States v. Hessiani,

, *5 (9th Cir. 2019) 15 (finding defendant not entitled to relief under Rehaif given evidence Defendant 16 knew he had previously been convicted and sentenced to imprisonment for more 17 than one year); Benamor,

*12 (noting defendant 18 stipulated that, at time he was arrested, he had been convicted of crime 19 punishable by imprisonment more than one year; and defendant had been 20 convicted of three felonies, including being a felon in possession of firearm and 21 ammunition, for which he received sentences of more than one year). 22 Petitioner stipulated on the record that (1) he knowingly possessed a 23 firearm on May 10, 2016; (2) prior to May 10, 2016 he had been previously 24 convicted of one or more crimes punishable by imprisonment more than one 25 year; and (3) when he possessed the firearm, he knew that his actions violated 26 the law. (Minnesota Action, Plea Transcript at 25:18-27:11, Dkt. No. 54; Plea 27 Agreement ¶ 2, Dkt. No. 30.) At the sentencing hearing, the judge noted that 28 Petitioner had 15 prior felony convictions as an adult, one of which involved a 1 prison sentence of 108 months. (Minnesota Action, Sentencing Hearing 2 Transcript at 30:15, 24-25, Dkt. No. 55.) His criminal history category was VI. 3] (ld. at 32:2-3.) 4 Petitioner has not shown that he has not had an unobstructed procedural 5 shot at presenting his claim. Petitioner must show that the legal basis for his 6 claim did not arise until after he had exhausted his direct appeal and first § 2255 7 motion. Harrison v. Ollison,

(9th Cir. 2008). The Rehaif 8 decision was issued on June 21, 2019, less than one year after Petitioner was 9 resentenced on remand from the Eighth Circuit. There is no indication Petitioner 10 has ever filed a § 2255 motion in the sentencing court. 11 Hil. 12 ORDER TO SHOW CAUSE 13 IT IS THEREFORE ORDERED that, on or before November 22 2019, 14 Petitioner shall show cause as to why the Court should not dismiss the Petition 15 for lack of jurisdiction. 16 If Petitioner does not respond to the Order to Show Cause, this action may 17 be dismissed for lack of jurisdiction. 18 Wbiai A Kendra, 20 DATED: October 22, 2019 ALICIA G. ROSENBERG 21 United States Magistrate Judge 22 23 24 25 26 27 28