Kisto v. United States ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Travis Lee Kisto, No. CV-19-05794-PHX-DJH No. CR-18-01264-PHX-DJH 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 Pending before the Court is Movant Travis Lee Kisto’s (“Movant”) Amended 16 Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant 17 to 28 U.S.C. § 2255 (Doc. 10) (the “Amended Motion”), and the April 29, 2021, Report 18 and Recommendation of United States Magistrate Deborah M. Fine (“R&R”) (Doc. 20). 19 Magistrate Judge Fine recommends that the Amended Motion be denied without an 20 evidentiary hearing. (Id.) However, finding that reasonable jurists could find the question 21 raised in Movant’s Amended Motion debatable, she recommends granting a certificate of 22 appealability upon request. (Id.) Movant has not filed an objection to the R&R or requested 23 a certificate of appealability, and the time to do so has now passed. The Court will adopt 24 the R&R. 25 I. Background 26 Movant seeks to have his sentence and conviction for being a felon in possession of 27 firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) vacated, set aside, or corrected 28 on the sole ground that it was rendered unconstitutional by the United States Supreme 1 Court’s decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). (Doc. 10 at 3-7). The 2 Court in Rehaif held for the first time that § 922(g)(1) requires that the individual know not 3 only that he possessed a firearm, but also that he belonged to one of the listed categories 4 of prohibited possessors when he possessed the firearm. See Rehaif, 139 S.Ct. at 2194 5 (stating that “the Government. . . must show that the defendant knew he possessed a firearm 6 and also that he knew he had the relevant status when he possessed it”). In his Amended 7 Motion, Movant contends that his guilty plea was structurally invalid because he was not 8 advised as to this element of the offense and because the record did not establish that 9 Movant had a subjective awareness that he was a “felon” when the crime was committed. 10 (Doc. 10 at 4-5). 11 Movant did not raise this issue in his direct appeal. Respondents therefore contend 12 the argument was procedurally defaulted, and that Movant cannot establish the necessary 13 cause and prejudice to excuse the default, or actual innocence to justify review of the claim. 14 After a thorough analysis, Magistrate Judge Fine agreed with Respondents. Siding 15 with the majority of courts that had visited the issue, she first concluded that a Rehaif error 16 is not a structural error, deserving of “automatic reversal without any inquiry into 17 prejudice.” Weaver v. Massachusetts, 137 S.Ct. 1899 (2017). (Doc. 20 at 8). She then 18 found that even if Movant “could show cause for failure to raise his claim at sentencing or 19 on appeal, he cannot establish prejudice.” (Id. at 9). She carefully went through the places 20 in the record that demonstrated Movant was well-aware of his felon status when he pled 21 guilty. (See id. at 9-10). Judge Fine also found that Movant had not demonstrated he is 22 actually innocent of the crime, or that refusing to correct the Rehaif error would result in a 23 miscarriage of justice such that he could excuse the procedural default of his claim. (Id. at 24 12-13). Finally, she found that Movant’s claim fails on the merits because “the record in 25 Movant’s case establishes that the Government would have been able to prove beyond a 26 reasonable doubt that Movant knew at the time he possessed the shotgun he used in relation 27 to the burglary charge to which he pleaded guilty that he had been convicted of a crime 28 punishable by a term of imprisonment for a term of greater than a year.” (Doc. 20 at 13). 1 In light of the clear record, Judge Fine recommends denying Movant’s request for an 2 evidentiary hearing on the issue of Movant’s knowledge that he belonged to the relevant 3 category of persons barred from possessing a firearm. (Doc. 20 at 14-15). 4 Judge Fine advised the parties that they had fourteen days to file objections and that 5 the failure to timely do so “may result in the acceptance of the Report and Recommendation 6 by the District Court without further review. (Doc. 20 at 17) (citing United States v. Reyna- 7 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Petitioner has not filed an objection 8 and the time to do so has expired. Respondents have also not filed an objection. Absent 9 any objections, the Court is not required to review the findings and recommendations in 10 the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant provision 11 of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face require any 12 review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 13 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo 14 any part of the magistrate judge’s disposition that has been properly objected to.”). 15 Nonetheless, the Court has reviewed Judge Fine’s comprehensive and well- 16 reasoned R&R and agrees with its findings and recommendations. The Court will, 17 therefore, accept the R&R and deny the Amended Motion. See 28 U.S.C. § 636(b)(1) (“A 18 judge of the court may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 20 Accordingly, 21 IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 20) is accepted and 22 adopted as the order of this Court. 23 IT IS FURTHER ORDERED that the Amended Motion to Vacate, Set Aside, or 24 Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. § 2255 is denied 25 without an evidentiary hearing. 26 … 27 … 28 … 1 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action 2|| and enter judgment accordingly. 3 Dated this Ist day of June, 2021. 4 5 JL — ———— 6 Ke Diangé. 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-