Box v. United States ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Elijah Deon Box, No. CV-19-05362-PHX-DLR (MHB) No. CR-17-00735-PHX-DLR 10 Movant, ORDER 11 v. 12 Unite States of America, 13 Respondent. 14 15 16 Before the Court is Elijah Deon Box’s (“Movant”) Amended Motion to Vacate, Set 17 Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 4), United States Magistrate 18 Judge Michelle H. Burns’ Report and Recommendation (“R&R”) (Doc. 10), Movant’s 19 “Reply to Government Response” which the Court understands to be his Objection to the 20 R&R (Doc. 13), and the United States’ Response to Movant’s Objections (Doc. 14). The 21 Court has reviewed the R&R de novo and has considered Movant’s objections. See Fed. 22 R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (the Court must make a de novo determination of 23 those portions of the R&R to which specific objections are made). 24 On May 5, 2017, Movant was arrested at the Veteran’s Administration Hospital in 25 Phoenix. Prior to his arrest, he was seen dumping a Taurus 9mm semi-auto pistol into a 26 garbage can. Movant waived his Miranda rights and admitted to the police that he put the 27 firearm in the garbage, explaining that he did so because he was a prohibited possessor. 28 Pursuant to a plea agreement, on December 5, 2017, Movant entered a plea of guilty to 1 felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), 2 before Magistrate Judge John Z. Boyle. Movant’s plea agreement was accepted, and he 3 was sentenced by the Court on December 20, 2017. Movant did not file an appeal. 4 On October 7, 2019, relying on Rehaif v. United States, 139 S. Ct. 2191 (2019), 5 Movant filed this motion, contending that his conviction for felon in possession of a firearm 6 in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) should be set aside. The Court in 7 Rehaif held that a defendant’s knowledge of his relevant prohibited status (“the Rehaif 8 element”) is an element of a § 922(g) offense. In Movant’s case, that relevant prohibited 9 status is his four prior convictions of a felony offense punishable by more than one year in 10 prison. However, following Rehaif, to prove a violation of 18 U.S.C. § 922(g)(1) and § 11 924(a)(2), in addition to proving that Movant had been previously convicted of a felony 12 offense punishable by more than one year in prison, the government must also prove 13 Movant’s awareness of that fact. Movant asserts that the Rehaif element was missing from 14 the factual basis of his change of plea, that his guilty plea was therefore not voluntary and 15 intelligent, and that his trial counsel was ineffective.1 16 The R&R recommends that Movant’s Amended Motion (Doc. 4) be denied and 17 dismissed with prejudice, finding that it has been procedurally defaulted because the issues 18 of insufficiency of evidence and error in the plea proceeding should have been brought in 19 the trial court or on appeal. “Habeas review is an extraordinary remedy and will not be 20 allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998). 21 An exception exists if the movant can show (1) cause excusing the procedural default and 22 “actual prejudice” resulting from the errors raised in the motion, or (2) likelihood of actual 23 innocence. See id. at 622-23. The R&R correctly found that Movant failed to show either 24 cause and actual prejudice or the likelihood of innocence. Specifically, it notes that Movant 25 did not establish that it is more likely than not that no reasonable jury would have convicted 26 him in light of Rehaif, pointing to Movant’s history that includes four prior felonies, 27 1 Particularly, he contends that his attorney misinformed him and that the trial court 28 did not understand the elements of the offense when it accepted his guilty plea without a factual basis. He consequently argues that he is actually innocent. 1 multiple parole revocations, and statements made at his arrest that he tossed the firearm 2 into the trash because of his prohibited possessor status. 3 Turning to Movant’s objections, Movant first argues that the R&R should be 4 rejected because his Fifth Amendment rights were violated when the indictment and Plea 5 Agreement failed to include the Rehaif element “that he fell within the relevant status.” 6 However, the R&R correctly found that his Fifth Amendment argument was procedurally 7 defaulted because, when he pled guilty, he waived his right to appeal. The cases Movant 8 relies on in support, Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) and 9 United States v. Stirone, 361 U.S. 212 (1960), are not applicable because neither involves 10 a collateral attack on a guilty plea. Movant’s objection to the R&R based his Fifth 11 Amendment claim is overruled. 12 Movant next argues that the R&R incorrectly determined that he failed to show 13 actual innocence or ineffective assistance of counsel. According to Movant, the R&R 14 should have found his trial counsel ineffective for failing to anticipate the Rehaif decision. 15 To establish a claim that counsel’s assistance was so defective as to require reversal of a 16 conviction, a movant must show first that counsel’s performance was deficient and that the 17 deficient performance prejudiced the defense so as to deprive the movant of a fair trial. 18 Strickland v. Washington, 466 U.S. 668 (1984). To show prejudice, the movant must 19 demonstrate that there is a reasonable probability that, but for counsel’s unprofessional 20 errors, the result of the proceedings would have been different. Id. at 694-95. The R&R 21 correctly found that Movant failed to establish either prong of the Strickland standard. The 22 failure to anticipate the Rehaif decision, which was announced well after Movant’s guilty 23 plea and sentencing, cannot constitute deficient performance. Lowry v. Lewis, 21 F.3d 344, 24 346 (9th Cir. 1994). The R&R also correctly determined that Movant did not establish the 25 second element of an ineffective assistance of counsel claim: prejudice. The missing 26 Rehaif element would have been easy to prove at trial. Before his conviction in this matter, 27 Movant had multiple felony convictions punishable by more than one year in prison. See 28 United States v. Johnson, No. 17-10252, 2020 WL 6268027, at *5 (9th Cir. Oct. 26, 2020) (CJohnson cannot plausibly argue that a jury . .. would find that he was unaware of his 2 || status as someone previously convicted of an offense punishable by more than a year in prison. After all, he had in fact already served three prior prison sentences exceeding one year.”). Additionally, Movant’s admissions to police that he ditched the gun because he 5 || knew he was a prohibited possessor make it unlikely that the result of the proceedings 6 || would have been different. 7 Movant’s “Reply to Government Response,” which the Court understands to be his 8 || Objection to the R&R (Doc. 13), is overruled. The R&R correctly determined that 9|| Movant’s clam is procedurally defaulted and fails on the merits. The Court accepts the 10 || R&R’s recommended disposition within the meaning of Fed. R. Civ. P. Rule 72(b). See || 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate’’). 13 IT IS THEREFORE ORDERED that the R&R (Doc. 10) is ACCEPTED. 14 IT IS FURTHER ORDERED that Movant’s Amended Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 4) is DENIED AND DISMISSED. 17 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 18 || proceed in forma pauperis on appeal are DENIED because dismissal of the petition is 19 || justified by a plain procedural bar and jurists of reason would not find the ruling debatable. 20 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment || accordingly and terminate this action. 22 Dated this 4th day of January, 2021. 23 24 25 {Z, 26 _- Ch 27 Uaited States Dictic Judge 28 -4-