UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brandon Edwards

v. Civil No. 19-cv-1271-JD Opinion No.

Warden, FCI Berlin

O R D E R

Brandon Edwards, proceeding pro se, seeks relief, pursuant

to

, from his conviction and sentence in the

District of Connecticut for unlawful felon-in-possession of

ammunition. He is currently incarcerated at FCI Berlin, in the

District of New Hampshire. The government moves to dismiss on

the ground that Edwards is not entitled to relief under § 2241.

Factual Background

On November 18, 2010, Edwards was charged with one count of

unlawful possession of ammunition by a convicted felon in

violation of

(g)(1) and 924(e)(1). He pleaded

guilty and was sentenced to a term of 180 months of imprisonment

to be followed by 60 months of supervised release. United

States v. Edwards,

(2d Cir. 2014). Judgment

was entered on September 25, 2010.

On appeal, Edwards challenged the district court’s finding

that he qualified as an armed career criminal under the Armed Career Criminal Act.

The district court’s judgment was

affirmed.

. Edwards filed a petition for a writ of

habeas corpus under

, raising claims “pertaining

to the plea negotiation process, sentencing, and appeal.”

Edwards v. United States,

, at *1 (D. Conn. Apr.

4, 2016). The court dismissed his claim that challenged the

plea negotiation process and denied the other claims in the

petition.

*5-*10. The court did not issue a certificate

of appealability.

Legal Background

Generally, petitions challenging a federal conviction or

sentence must be brought under § 2255 in the district where the

petitioner was sentenced. See McKinnon v. Spaulding, --- F.

Supp. 3d ---,

, at *2 (D. Mass. Mar. 13, 2020);

Concepcion v. Hazelwood,

, at *2-*3 (D.N.H. Jan.

9, 2019); Pryer v. Grondolsky,

, at *2 (D. Mass.

Oct. 11, 2017). Before filing a second or successive petition

under § 2255, however, the petitioner must seek authorization

from the court of appeals. Bucci v. United States,

(1st Cir. 2015). In this case, Edwards did not seek

authorization from the Second Circuit for a second or successive

petition and instead filed a petition under § 2241.

2 A defendant may seek relief under § 2241 in these

circumstances only if relief under § 2255 is “inadequate or

ineffective to test the legality of his detention.” § 2255(e).

Relief is inadequate or ineffective under § 2255(e), known as

the savings clause, in limited circumstances. United States v.

Barrett,

(1st Cir. 1999). Such circumstances

exist if the petitioner makes a credible allegation of actual

innocence or, based on a new statutory interpretation by the

Supreme Court, the petitioner is no longer guilty of the crime

of conviction. McKinnon,

, at *3 (citing

Trenkler v. United States,

(1st Cir. 2008) and

Sustache-Rivera v. United States,

(1st Cir.

2000)).

In support of his petition, Edwards relies on Rehaif v.

United States,

(2019). There, the Supreme Court

interpreted

(g) and § 924(a)(2) to require the

government to prove “both that the defendant knew he possessed a

firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.”1 Id. at 2200. The

relevant category under § 922(g)(1) in this case, is “any person

. . . who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year,” which means that

1 Under § 922(g)(1), a person in a restricted category also cannot possess ammunition.

3 the person is a felon. United States v. Velázquez-Aponte,

(1st Cir. 2019). Therefore, under Rehaif, when a

defendant is charged with being a felon in possession of

ammunition in violation of § 922(g)(1) and § 924(a)(2), the

government must prove both that the defendant knew he possessed

the ammunition and that he knew he was in the restricted

category, that is, when he possessed ammunition, he knew he had

been convicted of a crime punishable by imprisonment for a term

exceeding one year.

Discussion

Relying on Rehaif, Edwards argues that the government

failed to prove that he knew that he was a felon when he

possessed the ammunition that was the basis of the charge

against him. He contends that he can bring his petition under

§ 2241, through the savings clause, because he was convicted of

conduct that is no longer criminal under the law, as interpreted

in Rehaif.

The government moves to dismiss, arguing that the § 2255(e)

does not apply to allow Edwards’s petition because he cannot

show he is actually innocent of the charge of being a felon in

possession of ammunition. In support, the government represents

that at his change of plea hearing Edwards was asked if he had

been convicted of a felony offense and Edwards answered

4 affirmatively.2 The government further argues that Edwards’s

failure to allege in his petition that he was unaware of his

felony conviction makes relief under § 2241 unavailable to him.

In his objection to the motion to dismiss, Edwards argues

that the savings clause does not require a showing of actual

innocence, which he contends is an anachronistic view of the

statute. Instead, he argues that it applies when the Supreme

Court issues a ruling, after a prisoner’s first § 2255 motion,

interpreting a statute in a manner which raises the potential

that the prisoner was convicted of conduct that that, as

interpreted, the statute does not make criminal. He further

argues that he has made that showing.

As is stated above, the savings clause applies when, based

on a new statutory interpretation by the Supreme Court, the

petitioner is no longer guilty of the crime of conviction.3

Sustache-Rivera,

. Edwards, however, has not

shown that occurred in his case.

2 The government cites “Def. Mot.” as the source for the information about Edwards’s change of plea hearing. Apparently, the government is referring to pages of the transcript that Edwards submitted with his addendum to the petition (document no. 5). It would be helpful to the court if the government would provide a more accurate and precise citation.

3 In a footnote and relying on a case from the Eleventh Circuit Court of Appeals, the government states that the savings clause is not available in these circumstances. Because the government does not press that argument, it need not be addressed here.

5 Edwards contends that before the charged offense, he did

not know of his status as a felon. He states that he did not

know that a crime punishable by a year or more of incarceration

was a felony. He also asserts that no court had ever made him

aware that he “was sentenced to felony convictions.” Doc. no.

13, at *3. Edwards filed a copy of a transcript from a

sentencing hearing in 2003 in a Connecticut state court, where

he received a sentence of four years concurrent to a federal

sentence of four years, to show that the court did not tell him

he was being sentenced for a felony conviction.4

Edwards is mistaken about the elements of an offense under

§ 922(g)(1) and § 924(e)(1). Because a crime that is punishable

by a term of imprisonment of more than one year is a felony, a

person in that relevant category under § 922(g)(1) is referred

to as a felon in possession of a firearm or ammunition. See

Velázquez-Aponte,

; Nair v. United States,

, at *3 (W.D. Wash. Mar. 30, 2020). Section

922(g)(1), however, does not include the term “felon” or

“felony” as a restricted category or an element of the crime.

Instead, § 922(g)(1) prohibits possession of ammunition by “any

4 The transcript shows that it is from State of Connecticut v. Brandon Edwards, CR 03 0216807S, CR 02 0211886S, MV 02 0460860S (Ct. Sup. Ct. May 22, 2003), and appears to be the transcript of a plea hearing. The transcript also bears markings that indicate it was filed in Case 3:10-cr-232-EBB, as document number 99-3, on August 6, 2012.

6 person . . . who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year.”

Edwards does not dispute that, before he possessed the

ammunition during the offense of conviction, he had been

convicted of crimes “punishable by imprisonment for a term

exceeding one year.” § 922(g)(1). He also knew he had served

prison terms of more than one year. The transcript that Edwards

attached to his objection confirms that knowledge, and he

acknowledged that status during his change of plea hearing.

Because Edwards knew when he possessed ammunition, as charged,

that he had served prison sentences of more than one year for

prior crimes, he had the requisite knowledge of his restricted

status. See, e.g., Rosario Figueroa v. United States,

, at *5 (S.D.N.Y. May 6, 2020).

Therefore, Edwards has not shown that the savings clause

applies here to allow the court to consider his petition under

§ 2241.

Conclusion

For the foregoing reasons, the government’s motion to

dismiss (document no. 12) is granted.

Because Edwards did not make a “substantial showing of the

denial of a constitutional right,” the court declines to issue a

certificate of appealability.

(c)(2).

7 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

May 12, 2020

cc: Brandon Edwards, pro se Seth R. Aframe, AUSA

8