1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 SAMANTHA LEIGH ROSS-VARNER, Case No. 20-cv-05566-AGT

7 Plaintiff, ORDER GRANTING MOTION TO 8 v. DISMISS

9 UNITED STATES OF AMERICA, Re: Dkt. No. 8 Defendant. 10

11 In 2015, in the Eastern District of North Carolina, Samantha Leigh Ross-Varner pled guilty 12 to being a felon in possession of a firearm,

(g)(1), 924(a)(2). For that crime and 13 a related offense she is serving a sentence in the Northern District of California. She has 14 petitioned for a writ of habeas corpus, under

. At issue here is the government’s 15 motion to dismiss the petition. 16 Ross-Varner contends that the writ should issue because her plea colloquy was 17 constitutionally inadequate. The sentencing judge told her that to convict, the government would 18 need to prove that she knowingly possessed a firearm, that at the time of possession she was a 19 felon (meaning that she had been convicted of a crime punishable by imprisonment for a term 20 exceeding one year), and that the firearm had traveled in interstate commerce. See May 11, 2015 21 Hr’g Tr., No. 5:14-CR-00206-BO-6, ECF No. 306 at 21 (E.D.N.C. April 4, 2016). Four years 22 later, the Supreme Court clarified that to convict under § 922(g) and § 924(a)(2), the government 23 must prove not only that the defendant knew she possessed a firearm, but also that she knew she 24 was a felon at the time of possession. See Rehaif v. United States,

(2019). 25 Ross-Varner wasn’t made aware of the latter mens rea requirement when she entered her plea, so 26 she asserts that her plea wasn’t knowingly and intelligently made. 27 The government argues, correctly, that this Court lacks jurisdiction to consider Ross- 1 generally must be made in the sentencing court, not in the custodial court, and by motion under 28

, not by petition under § 2241. See Hernandez v. Campbell,

, 864–65 3 (9th Cir. 2000). The sole exception is that the custodial court may consider the legality of a 4 sentence entered in another district when the remedy under § 2255 is “inadequate or ineffective.” 5 Id. at 865 (quoting

(e)). This test is met only when a petitioner “(1) makes a 6 claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot’ at presenting that 7 claim.” Stephens v. Herrera,

(9th Cir. 2006) (quoting Ivy v. Pontesso,

(9th Cir. 2003)). Ross-Varner hasn’t satisfied either element. 9 “Actual innocence means factual innocence, not mere legal insufficiency.” Marrero v. 10 Ives,

(9th Cir. 2012) (quoting Bousley v. United States,

, 623 11 (1998)). If Ross-Varner insisted that she didn’t know she was a felon when she possessed the 12 firearm that led to her conviction, that would be a claim of factual innocence. But that’s not the 13 claim made. Instead she argues that the government “failed to prove” that she knew she was a 14 felon at the time of possession. ECF No. 1 at 7. This is a claim of legal error, not of factual 15 innocence. See Bousley, 523 U.S. at 623–24 (explaining that the “mere legal insufficiency” of 16 evidence presented at the defendant’s plea colloquy would not demonstrate “actual innocence”).1 17 Nor was Ross-Varner obstructed from presenting her claim to the sentencing court. In 18 2018, she filed a § 2255 motion in the sentencing court (raising claims of ineffective assistance of 19 counsel), and the court didn’t resolve her motion until April 27, 2020, ten months after Rehaif was 20 decided, on June 21, 2019. See No. 5:14-CR-00206-BO-6, ECF Nos. 366, 372, 401. This, then, 21 isn’t a case in which a controlling Supreme Court ruling came down after the defendant had 22 exhausted her first § 2255 motion. Cf. Stephens,

(petitioner lacked “unobstructed 23 procedural shot” to present claim of actual innocence, when the claim was based on a Supreme 24 1 Other courts in this circuit have reached the same conclusion. See, e.g., Braden v. United States, 25 No. 20-CV-3138-MWF (MRW),

, at *2 (C.D. Cal. Aug. 14, 2020) (claim that “the government failed to prove that [the defendant knew of his status as a felon] as later required 26 by Rehaif . . . . [was] not a claim of factual innocence for the crime”), adopted,

(C.D. Cal. Sept. 17, 2020); Hudson v. Ciolli, No. 20-CV-00936-JLT (HC),

, at 27 *2 (E.D. Cal. July 22, 2020) (claim that “a legal element was not met” under Rehaif was “not the 1 Court decision issued “after the Tenth Circuit denied his § 2255 motion”). Ross-Varner could 2 have moved to amend her § 2255 motion to raise her Rehaif claim, but she didn’t. This is fatal to 3 || her § 2241 petition. See Braden,

, at *2 (“A change in the law that occurs 4 || before a prisoner’s first Section 2255 motion was decided is not sufficient to demonstrate that a 5 || prisoner was denied an unobstructed procedural shot.”) (internal quotation marks omitted). 6 Lacking jurisdiction, the Court grants the government’s motion to dismiss the petition. 7 || Ross-Varner cannot change the dates on which Rehaif was decided and on which the sentencing 8 court ruled on her § 2255 motion, so she cannot possibly cure the second of the two defects 9 identified. Because it would be futile for her to amend her petition, the Court dismisses it with 10 || prejudice. 11 IT IS SO ORDERED. 12 Dated: January 12, 2021 ALEX G. TSE 13 United States Magistrate Judge

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