1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 United States of America, Case No.: 2:13-cr-00367-JAD-VCF-1

4 Plaintiff

5 v. Order Denying Motion to Vacate Sentence

6 Ramsey Lamar Hill, [ECF No. 55]

7 Defendant

8 In 2013, Ramsey Hill was sentenced to serve a 44-month federal prison sentence after 9 pleading guilty to unlawful possession of a firearm by a previously convicted felon.1 Hill moves 10 under

to vacate his felon-in-possession conviction under the Supreme Court’s 11 recent decision in Rehaif v. United States, which clarified that a defendant must be aware of his 12 status as a felon in order to be convicted of this firearm offense.2 Despite the complexity of 13 § 2255 habeas proceedings, Hill’s case can be summed up simply. Unlike the Rehaif defendant, 14 who was unaware that overstaying his visa meant that he was the type of person no longer 15 permitted to own firearms, Hill—having been charged with felony assault and sentenced to 16 prison for at least 24 months only two months before the arrest undergirding this conviction— 17 cannot reasonably claim that he was unaware of his status as a felon. So I find that Hill 18 procedurally defaulted his claim because he cannot show that a Rehaif error prejudiced his trial, 19 and I deny his motion. 20

21 1 ECF Nos. 32, 44. Hill did not appeal his conviction. Of note, this is one of Hill’s two pending § 2255 motions. In December 2015, Hill was erroneously released from prison before finishing 22 his sentence and a warrant was issued for his arrest. ECF No. 47. He committed an additional §§ 922(g)(1) and 924(a)(2) offense during that holiday and was returned to custody in March 23 2016. See United States v. Hill, No. 2:16-cr-001114 (D. Nev. Apr. 16, 2016). 2 Rehaif v. United States,

(2019). 1 Discussion3 2 A federal prisoner may attack the legality of his conviction under

by 3 showing that “the sentence was imposed in violation of the Constitution or the laws of the United 4 States,” “the court was without jurisdiction to impose such a sentence,” the sentence was in 5 “excess of the maximum authorized by law,” or the sentence is “otherwise subject to collateral

6 attack.”4 A prisoner filing a claim for federal habeas relief under § 2255 is entitled to an 7 evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show 8 that the prisoner is entitled to no relief.”5 9 Relying on the Supreme Court’s decision in Rehaif v. United States, Hill argues that his 10 conviction violates the laws of the United States. In Rehaif, a defendant successfully challenged 11 his conviction for possessing a firearm as an alien unlawfully in the United States in violation of 12

(g).6 Overturning a broad consensus among the circuit courts, the Supreme 13 Court held that, in order to establish a violation of § 922(g), the government “must prove both 14 that the defendant knew he possessed a firearm and that he knew he belonged to the relevant

15 category of persons barred from possessing a firearm.”7 But Rehaif was a unique case: the 16 defendant—a student who’d overstayed his nonimmigrant visa—was unaware of his status, 17 18 3 Because the parties are familiar with the facts, I do not repeat them here except as necessary to 19 my analysis. 4

(a). 20 5

§ 2255(b); United States v. Leonti,

(9th Cir. 2003) (“We have 21 characterized this standard as requiring an evidentiary hearing where ‘the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.’”) 22 (quoting United States v. Schaflander,

(9th Cir. 1984)). I find this motion suitable for resolution without an evidentiary hearing. 23 6 Rehaif,

. 7

. 1 which precluded him from enjoying the “innocent” activity of owning and shooting firearms at a 2 firing range.8 Invoking Rehaif’s reasoning, Hill attacks his

(g)(1) and 924(a)(2) 3 conviction, arguing that it was fatally defective because his indictment and plea memorandum 4 failed to state both that Hill knew at the time of his conviction that he belonged to the 5 “category”9 of persons barred from possessing a firearm and that he knew he was barred from

6 possessing a firearm.10 He claims that these defects robbed this court of jurisdiction and violated 7 his rights under the Fifth and Sixth Amendments. 8 I. Procedural default 9 The government argues that Hill procedurally defaulted his claim because he did not 10 challenge the sufficiency of his indictment on direct appeal. The “extraordinary remedy”11 of 11 federal habeas “is not designed to provide criminal defendants multiple opportunities to 12 challenge their sentence.”12 When a “criminal defendant could have raised a claim of error on 13 direct appeal but nonetheless failed to do,” he must demonstrate either “cause excusing his 14 procedural default” and “actual prejudice resulting from the claim of error,” or actual

15 innocence.13 Noting that Hill does not assert an actual-innocence claim, the government argues 16

17 8

at 2194–95. 18 9 For Hill, that category is the class of persons convicted of a crime punishable by imprisonment for a term exceeding one year—in other words, convicted felons. See ECF No. 1 at 1 19 (indictment charging violations of

(g)(1) and 924(a)(2)); see also ECF No. 31 (plea memorandum). 20 10 ECF No. 55. 21 11 Bousley v. United States,

(1998). 12 United States v. Johnson,

(9th Cir. 1993). 22 13

(citing United States v. Frady,

(1982)); Bousley,

(“Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the 23 constitutional error in his plea colloquy ‘has probably resulted in the conviction of one who is actually innocent.’”) (quoting Murray v. Carrier,

(1986)). 1 that Hill’s guilty plea precludes him from asserting this collateral attack, he cannot show cause 2 excusing his failure to raise these claims on appeal, and he was not prejudiced by a Rehaif 3 error.14 Hill claims that (1) his indictment failed to assert a predicate offense, robbing this court 4 of jurisdiction, excusing any procedural default, and precluding his guilty plea’s presumptive 5 waiver of § 2255 attacks; (2) the Rehaif decision effected a sea change in the law, excusing his

6 failure to directly appeal his conviction; and (3) he was actually prejudiced or, in the alternative, 7 the structural errors plaguing his conviction relieve him of the obligation to show prejudice.15 8 A. This court has jurisdiction over Hill. 9 Hill argues that his claim is exempt from the procedural-default rule because, under 10 Rehaif, the indictment fails to properly allege an “offense” against the United States.16 This 11 court “has jurisdiction [over] all crimes cognizable under the authority of the United States.”17 12 In United States v. Cotton, the Supreme Court unequivocally held that “defects in an indictment 13 do not deprive a court of its power to adjudicate a case.”18 The Ninth Circuit, other circuits, 14 other judges within this district, and this court have repeatedly affirmed that an indictment’s

15 “omission of the knowledge[-]of[-]status requirement d[oes] not deprive the district court of 16 17

18 14 ECF No. 57. 15 ECF Nos. 55, 58. 19 16 ECF No. 55 at 15. Hill also argues that the government waived its ability to challenge his plea 20 as procedurally defaulted by raising it at an “inappropriate time,” citing United States v. Barron,

(9th Cir. 1999). That case is inapposite. The Barron court assessed 21 whether a procedural-default challenge was waived when, unlike here, the government raised it for the first time on appeal and not before the district court.

Regardless, Hill also argues that 22 my “analysis must center on the indictment,” to which he concedes the government objected. See ECF No. 58 at 26. 23 17 Lamar v. United States,

(1916). 18 United States v. Cotton,

, 630 (2002). 1 jurisdiction.”19 So even presuming the validity of Hill’s Rehaif-based claim, the deficiency he 2 identifies in his indictment does not preclude this court from exercising its jurisdiction. 3 B. Hill has shown cause, but not prejudice, to stave off procedural default. 4 The government correctly notes that Hill did not challenge on direct appeal the 5 indictment or plea’s failure to state—or the government’s failure to prove—that he knew that he

6 had been previously convicted of a crime punishable by a term of imprisonment exceeding one 7 year.20 But “where a constitutional claim is so novel that its legal basis is not reasonably 8 available to counsel, a defendant has cause for his failure to raise the claim in accordance with 9 applicable state procedures.”21 Rehaif’s holding is just such a novel claim, given that it 10 “overturn[s] a longstanding and widespread practice to which [the] Court has not spoken, but 11 which a near-unanimous body of lower court authority has expressly approved.”22 So I find that 12 Hill has sufficiently shown cause to excuse his failure to raise this argument on direct appeal. 13 Hill has failed, however, to meet his burden of demonstrating that he was prejudiced by 14 the government’s omission.23 Actual prejudice “requires the petitioner to establish ‘not merely

15 16 19 E.g., United States v. Espinoza,

, 84 (9th Cir. 2020) (citing Cotton, 535 U.S. at 17 631); United States v. Velasco-Medina,

, 845–46 (9th Cir. 2002) (reasoning that Cotton’s holding applies where “an indictment[] fail[s] to allege the specific intent required” for 18 a crime)); United States v. Moore,

(11th Cir. 2020) (“[T]he law is clear: the omission of an element in an indictment does not deprive the district court of subject-matter 19 jurisdiction.”); United States v. Kelbch, No. 3:17-cr-00040,

, at *2 (D. Nev. Jan. 7, 2021); United States v. Reynolds, No. 2:16-cr-000296,

, at *3 (D. Nev. 20 Sept. 2, 2020) (Dorsey, J.). Hill cites no case to the contrary. See, e.g., ECF No. 83 at 13–18. 21 20 ECF No. 57 at 5. 21 Reed v. Ross,

(1984). 22 22 Reed,

. 23 23 Hill, in fact, seemingly concedes this point. See ECF No. 58 at 23 (noting, without rebuttal, the government’s argument that Hill “knew he had been convicted of a crime punishable by more than one year in prison”). Instead of arguing that he could demonstrate that he lacked 1 that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and 2 substantial disadvantage.”24 To prove a felon-in-possession charge, the government’s obligation 3 is not “burdensome,” and it may be inferred from circumstantial evidence.25 Only two months 4 prior to his guilty plea and subsequent conviction, Hill had been sentenced to 24–60 months in 5 prison for violently assaulting an ex-girlfriend with a deadly weapon.26 Indeed, his criminal

6 history score was 13, placing him in the highest criminal history category of VI.27 And while 7 Hill did not submit a written plea agreement, he swore in open court that, at the time he 8 possessed this firearm, he had been “convicted of a crime punishable by imprisonment for a term 9 exceeding one year.”28 This evidence proves beyond a reasonable doubt that Hill—unlike the 10 Rehaif defendant—well knew that he had been convicted of “a crime punishable by 11 imprisonment for a term exceeding one year.”29 And while Hill argues that a post-hoc review of 12 the evidence is inappropriate when he hasn’t raised a sufficiency-of-the-evidence claim, Hill 13 must still show “actual prejudice” to excuse his default.30 Hill can’t do so with a criminal record 14

15 knowledge of his status, Hill merely asserts that he “lacked notice of the knowledge-of-status element.”

. Thus, any errors in his indictment are non-prejudicial. 16 24 Bradford v. Davis,

(9th Cir. 2019) (emphasis omitted). 17 25 Rehaif,

. 18 26 Presentence Investigative Report at ¶ 39. Beginning at age 17, Hill had largely been sentenced to brief stints in prison or on probation for various drug crimes, batteries, assaults, and traffic 19 violations, prior to this felon-in-possession charge.

at ¶¶ 23–38. 27 Id. at 42. 20 28 ECF No. 52 at 12–15 (acknowledging “yes” that he was “on probation for” an “assault with a 21 deadly weapon” charge, which was a “crime punishable by a term of imprisonment exceeding one year”). 22 29

(g)(1). 30 Frady,

(“In applying this dual standard to the case before us, we find it 23 unnecessary to determine whether [the § 2255 petitioner] has shown cause, because we are confident he suffered no actual prejudice . . . .”). 1 and sentencing history like his.31 Thus, even if his indictment had stated the mens rea element 2 recognized in Rehaif, Hill’s plea and eventual judgment on the felon-in-possession count would 3 have been the same,32 and I find that Hill has failed to show that he was prejudiced by this 4 omission. 5 C. Hill’s deficient indictment and plea do not present structural errors.

6 In the alternative, Hill argues that he need not show actual prejudice to overcome 7 procedural default because his indictment’s and plea’s deficiencies are structural, setting off 8 cascading violations of the Fifth and Sixth Amendments.33 At the outset, Hill mischaracterizes 9 Rehaif’s holding by arguing that it requires the government to both prove that Hill knew that he 10 belonged to the category of persons prohibited from possessing firearms and that he himself 11 knew that he was barred from owning firearms. Rehaif does not require that a § 924(g) 12 defendant know that he was barred from possessing a firearm; it clarifies that the government 13 must demonstrate that a defendant “knew he belonged to the relevant category of persons barred 14 from possessing a firearm.”34 This subtle distinction is an important one. As the Ninth Circuit

15 reasoned in United States v. Singh, requiring the government to prove that “the defendant knew 16

17 31 Other courts have reasoned similarly. See, e.g., Whitley v. United States, No. 04 CR. 1381,

, at *2 (S.D.N.Y. Apr. 22, 2020) (“[A]ny argument that Whitley was 18 prejudiced therefrom is belied by the sheer implausibility that, after having been convicted of multiple prior felony convictions for which sentences exceeding one year had been imposed, and 19 having in fact served more than a year in prison in connection therewith . . . , Whitley nevertheless lacked the requisite awareness of his restricted status.”). 20 32 See, e.g., United States v. Hollingshed,

(8th Cir. 2019) (finding defendant 21 not entitled to relief under Rehaif when he stipulated at trial that he was a convicted felon and could not show a reasonable probability that the outcome of the proceedings would have been 22 different). 33 ECF No. 58 at 12–20; see also United States v. Withers,

(9th Cir. 2011) 23 (noting that structural errors can satisfy the procedural-default rule’s prejudice requirement). 34 Rehaif,

. 1 his or her status prohibited firearm ownership or possession,” and not merely that the defendant 2 belonged to the category of those prohibited from owning a firearm, “would improperly raise the 3 scienter requirement of § 924(a)(2) from ‘knowingly’ to ‘willfully.’”35 So the government “must 4 prove only that [Hill] knew, at the time he possessed the firearm, that he belonged to one of the 5 prohibited status groups enumerated in § 922(g).”36

6 In light of Rehaif’s limited scope, I am not convinced that the government’s failure to 7 include an element of Hill’s § 922(g) charge presents a structural error. “[C]ertain errors, termed 8 structural errors might affect substantive rights regardless of their actual impact on an appellant’s 9 trial.”37 As opposed to simple errors “in the trial process itself,”38 structural errors “go to the 10 framework within which judicial proceedings are conducted,” requiring “‘automatic reversal of 11 the conviction.’”39 The Supreme Court has narrowed the types of errors that may be deemed 12 structural, recognizing errors like deprivation of counsel, lack of an impartial trial judge, 13 violations of the right to self-representation and a public trial, and an erroneous reasonable-doubt 14 instruction as sufficiently egregious to excuse a claimant from proving actual prejudice.40 But

15 structural errors must necessarily affect all aspects of a trial; they cannot be merely potentially 16 damaging.41 17 18 35 United States v. Singh,

(9th Cir. 2020). 19 36

. Given Hill’s misreading of Rehaif, I decline to consider any alleged errors predicated on the indictment’s or plea’s failure to include an element indicating that Hill needed 20 to know that he could not possess a firearm. 21 37 United States v. Marcus,

, 263 (2010) (citations omitted). 38 Arizona v. Fulminante,

(1991). 22 39 McKinney v. Ryan,

(9th Cir. 2015) (en banc). 23 40 See Marcus, 560 U.S. at 263. 41 Accord Weaver v. Massachusetts,

(2017). 1 While the Ninth Circuit has yet to definitively rule that a Rehaif error is not structural,42 2 its recent decisions have repeatedly recognized that Rehaif’s reach is limited. In Tate v. United 3 States, for example, the Ninth Circuit determined that the Rehaif Court announced a statutory 4 rule and “did not invoke any constitutional provision or principle,” thus its holding could not 5 sustain a successive § 2255 challenge.43 And the panels in United States v. Benamor and United

6 States v. Johnson did not treat a Rehaif error as structural and instead applied plain-error review, 7 declining to overturn sentences when the defendant failed to “show how the fairness, integrity, or 8 public reputation of judicial proceedings would be adversely affected by affirming his 9 conviction.”44 Other circuits almost uniformly agree that omission of the knowledge-of-status 10 requirement should not be treated like a structural error.45 And the Fourth Circuit, which 11 remains the lone court to hold that this omission is structural,46 declined to revisit the issue en 12 13

14 42 See, e.g., United States v. Espinoza,

, 84–85 (9th Cir. 2020) (expressing “no view” on whether “the district court’s failure to inform of him of the knowledge[-]of[-]status 15 element constituted a ‘structural error’ that per se affected his substantial rights”). 43 Tate v. United States,

(9th Cir. 2020). 16 44 United States v. Johnson, No. 18-10016,

, at *3 (9th Cir. Oct. 28, 2020) 17 (declining, like the Espinoza panel, to consider whether a Rehaif-style error is structural); United States v. Benamor,

(9th Cir. 2019) (applying the plain-error test and 18 determining that “an error in not instructing the jury to make such a [Rehaif] finding did not affect [the d]efendant’s substantial rights or the fairness, integrity, or public reputation of the 19 trial”). 45 See, e.g., United States v. Burghardt,

, 403–05 (1st Cir. 2019); United States v. 20 Hicks,

, 401–02 (5th Cir. 2020) (rejecting the notion that a Rehaif error is structural); United States v. Coleman,

, 1029–30 (8th Cir. 2020) (rejecting the 21 argument that a plea suffering from a Rehaif error is structural and applying a reasonable- probability standard to the third prong of plain-error review); see also United States v. Balde, 22

, 97–98 (2d Cir. 2019) (noting that in some cases a Rehaif error may have no effect on a defendant’s conviction or decision to plead guilty). 23 46 United States v. Gary,

, 205–06 (4th Cir. 2020), cert granted No. 20-444,

(Mem),

(Jan. 8, 2021). 1 banc and, instead, called for the Supreme Court to resolve this rift within the circuits.47 I agree 2 with the reasoning of the majority of the circuit courts. Not only has the Supreme Court held 3 that a district judge’s failure to instruct the jury on an offense element (which is similar to an 4 indictment’s omission of an element) does not amount to structural error,48 but the Rehaif Court 5 remanded for harmless-error review rather than reversing the conviction outright.49 So I decline

6 to excuse Hill from making a showing of actual prejudice, and I deny his § 2255 motion. 7 II. Tollett v. Henderson bars Hill’s claims. 8 Alongside Hill’s procedural default and failed jurisdictional challenge, I also find that he 9 waived his ability to challenge his indictment in his guilty plea. A guilty plea generally 10 constitutes a waiver of all non-jurisdictional defects.50 In Tollett v. Henderson, the Court held 11 that a guilty plea is “a break in the chain of events” of the criminal process, barring “independent 12 claims relating to the deprivation of constitutional rights that occurred prior to the entry of the 13 guilty plea” but excepting those attacks premised on the knowing and voluntary nature of his 14 plea or, relatedly, ineffective assistance of counsel.51 Like the Tollett defendant, Hill’s attack

15 fails to properly challenge this court’s jurisdiction, he “solemnly admitted in open court that he is 16 17 47 United States v. Gary,

(4th Cir. 2020) (en banc) (Wilkinson, J., concurring) 18 (“I concur in the denial of rehearing en banc for one reason and one reason only. The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should 19 consider it promptly . . . . Is it eight—or nine—circuits that disagree with us? I have lost count, but the ranks are growing.”). Hill’s attempts to explain why this concurrence’s, and the majority 20 of other circuit courts’, views should be ignored are unavailing. 48 Neder v. United States,

(1999); see also United States v. Dominguez Benitez, 21

, 81 n.6 (2004) (“The omission of a single Rule 11 warning without more is not colorably structural.”). 22 49 Rehaif,

. 23 50 Blackledge v. Perry,

, 29–30 (1974). 51 Tollett v. Henderson,

(1973). 1 in fact guilty of the offense with which he is charged,”52 and he waived his appellate rights by 2 declining to proceed with a trial.53 I am also not persuaded by Hill’s assertion that his 3 indictment’s alleged Rehaif error presents an exception to Tollett’s bar. While the Ninth Circuit 4 has recognized that Tollett’s ruling may not apply to cases in which an “indictment failed to state 5 a valid claim,”54 the Supreme Court has upheld the bar when the indictment could “have been

6 ‘cured’ through a new indictment.’”55 The government’s failure to include the knowledge-of- 7 status requirement in Hill’s indictment or plea memorandum is exactly the type of error that 8 could have been cured with a new indictment. So I find that Hill has also waived his collateral 9 attack under Tollett. 10 III. Certificate of appealability 11 To appeal this order, Hill needs a certificate of appealability from a circuit or district 12 judge.56 In deciding whether to grant one, I consider if “reasonable jurists could debate whether 13 (or, for that matter, agree that) the petition should have been resolved in a different manner or 14 that the issues presented were adequate to deserve encouragement to proceed further.”57

15 Although this standard is “lenient,”58 I find that Hill’s challenge does not meet it. So I deny him 16 a certificate of appealability. 17 18 19 52

. 20 53 ECF No. 52 at 17. 21 54 United States v. Johnston,

, 1020 n.3 (9th Cir. 1999). 55 Class v. United States,

(2018). 22 56

(c)(1)(B); Fed. R. App. P. 22(b)(1). 23 57 Slack v. McDaniel,

, 483–84 (2000) (internal quotation marks omitted). 58 Hayward v. Marshall,

(9th Cir. 2010) (en banc). 1 Conclusion 2 IT IS THEREFORE ORDERED that Hill’s motion to vacate under

[ECF No. 55] is DENIED. The Clerk of Court is DIRECTED to enter a separate civil 4|| judgment denying Hill’s § 2255 petition and denying a certificate of appealability. The Clerk must also file this order and the civil judgment in this case and in the related civil case: 2:20-cv-01125-JAD.

U.S. District Judgé Jennifer/A. Dorsey 8 February 1, 2021 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

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