United States v. Edward Ross , 801 F.3d 374 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4447
_____________
UNITED STATES OF AMERICA
v.
EDWARD ROSS,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00398-001)
District Judge: Honorable Gene E.K. Pratter
_______________
Argued
June 3, 2015
Before: FISHER, JORDAN, and SHWARTZ, Circuit
Judges
(Filed: September 15, 2015)
Will W. Sachse
Katherine U. Davis
Ellen L. Mossman
Dechert
2929 Arch Street
18th Fl., Cira Centre
Philadelphia, PA 19104
John McClam (Law Student) (ARGUED)
University of Pennsylvania School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Counsel for Appellant
Emily McKillip
Floyd J. Miller
Robert A. Zauzmer (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Edward Ross appeals from the denial of his motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct his
criminal sentence. He asserts that his trial and appellate
2
counsel rendered ineffective assistance to him when they
failed both to challenge a deficient jury instruction and to
challenge the sufficiency of the evidence on one of his counts
of conviction. Because we conclude that he has not satisfied
a threshold requirement of section 2255, we will remand the
case to the District Court with directions to dismiss the
motion.
I. BACKGROUND
A. FACTUAL BACKGROUND
Ross was a drug dealer in Chester, Pennsylvania.
Between March 25 and April 22, 2004, an undercover
detective made four purchases of cocaine from him, and, on
three of those occasions, surveillance officers watched Ross
leave a residence at 2115 Madison Street and drive directly to
a location agreed upon with the detective. The detective
arranged a fifth cocaine purchase for April 23, 2004. Before
that purchase took place, however, the police obtained a
warrant to search 2115 Madison Street. When police officers
saw Ross leave the residence and get into his car, they
arrested him in the driveway. The officers searched his car
and found four bags of cocaine and a loaded Colt .38 caliber
handgun.
After the arrest, the police executed the search warrant
for the residence. They discovered, among other things, a .25
caliber semi-automatic handgun, and a loaded 9mm pistol.
Originally, the 9mm pistol had been semi-automatic, but the
firing pin had been replaced with a submachine gun firing pin
that enabled the gun to fire continuously. At Ross’s
subsequent criminal trial, an expert from the Bureau of
3
Alcohol, Tobacco, and Firearms testified that the 9mm pistol,
as modified, met the definition of a machinegun set forth in
26 U.S.C. § 5845(b).
B. PROCEDURAL HISTORY
In March 2006, a federal grand jury returned a
superseding indictment charging Ross with four counts of
distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(counts 1-4); possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count
5); carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count
6); possession of a machinegun in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii)
(count 7); possession of a machinegun, in violation of 18
U.S.C. § 922(o) (count 8); and two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (counts 9 and 10).
Ross’s case went to trial. After the parties had finished
presenting evidence, the district court instructed the jury;
however, regarding count 8, the court did not say – and
Ross’s trial counsel failed to object and insist – that as part of
proving Ross possessed a machinegun, the government was
required to prove beyond a reasonable doubt that he had
specific knowledge of the firearm’s characteristics that made
it a “machinegun” as defined by statute, specifically 26
U.S.C. § 5845(b). The jury found Ross guilty on all counts.
At sentencing, because Ross had a prior conviction for
a felony drug trafficking offense and was also, on count 5,
convicted of an offense involving 500 grams or more of
4
cocaine, he was subject to a mandatory minimum penalty of
10 years’ imprisonment. He was further subject to a
mandatory consecutive term of 30 years’ imprisonment
because he was, on count 7, convicted of possessing a
machinegun in furtherance of a drug trafficking crime. The
district court found that Ross was a career offender under
section 4B1.1 of the United States Sentencing Guidelines and
sentenced him to concurrent terms of 10 years’ imprisonment
on counts 1, 2, 3, 4, 5, 8, and 10, followed by a consecutive
term of 30 years’ imprisonment on count 7. The court
imposed a total term of eight years’ supervised release, a fine
of $3,000, and an $800 special assessment – that is, $100 for
each count of conviction. On the government’s motion, the
district court dismissed counts 6 and 9.
Ross filed a direct appeal. He argued that the district
court erroneously concluded that 18 U.S.C. § 924(c)(1)(B)(ii)
required the imposition of thirty years’ imprisonment on
count 7, that the court further erred by increasing his
mandatory minimum sentence based on a prior conviction,
and that there was insufficient evidence to prove that he had
violated 18 U.S.C. § 922(g). He also challenged the
constitutionality of 18 U.S.C. §§ 922(o) and 922(g)(1). On
April 27, 2009, we affirmed his conviction. United States v.
Ross, 323 F. App’x 117, 120 (3d Cir. 2009).
Sixteen months later, in August 2010, Ross filed his
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, and he filed a supplemental motion in
September 2013. The District Court denied those motions
and refused to issue a certificate of appealability. The Court
predicted that we would apply the reasoning of the Supreme
Court’s decision in Staples v. United States, 511 U.S. 6005
(1994), and would conclude that Ross’s conviction under
section 922(o) was unlawful because the jury was not
required to find that Ross had specific knowledge of the 9mm
pistol’s firing characteristics. Nevertheless, the Court
reasoned that any error with respect to Ross’s conviction
under section 922(o) did not cause prejudice under Strickland
v. Washington, 466 U.S. 668 (1984), for two reasons: first,
because Ross is classified as a Category VI career criminal,
and so the section 922(o) conviction could not change his
criminal history category in any future federal sentencing
proceeding; second, because, even if the section 922(o)
conviction were vacated, Ross would not be released from
custody any sooner given the concurrency of his sentence for
that count with the time he had to serve on other counts of
conviction.
Ross timely appealed. He chose to apply directly to us
for a certificate of appealability, which we granted. The
certificate of appealability limited Ross to raising the issue of
whether his trial and appellate counsel rendered ineffective
assistance by failing to argue that the government introduced
insufficient evidence to convict him of possessing a
machinegun as charged in count 8 and that the jury
instructions did not require the jury to find as an essential
element of that crime that he knew of the characteristics of
the firearm that brought it within the statutory definition of
“machinegun.” (App. at 23.) In the certificate of
appealability, we stated that, “jurists of reason would debate
the District Court’s conclusion that appellant did not suffer
prejudice under Strickland v. Washington, 466 U.S. 668(1984),” and, in particular, we noted that it was debatable
whether “his conviction under § 922(o) did not increase his
actual sentence and would have no effect under the federal
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Sentencing Guidelines on the sentence imposed for any
federal conviction in the future.” (App. at 23.)
II. DISCUSSION1
Two questions are before us. The first, raised by the
government, is whether the relief that Ross seeks is
cognizable under section 2255. The second, pressed by Ross,
is whether section 922(o) includes a mens rea element that
requires the government to prove that a defendant had
specific knowledge of a firearm’s characteristics. Because we
answer the first question in the negative, we cannot reach the
second.
Ross bases his section 2255 motion on the alleged
ineffective assistance of his counsel at trial and on direct
appeal. He argues that those lawyers performed deficiently in
failing to challenge the sufficiency of evidence presented to
prove a violation of section 922(o) and in failing to object to
the associated jury instruction. We note at the outset that, had
Ross challenged his conviction under section 922(o) on direct
appeal, there is a fair likelihood we would have vacated that
conviction and remanded for resentencing.2 But this case
1
The District Court had jurisdiction under 28 U.S.C.
§ 2255. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 2253. We exercise plenary review over the District Court’s
legal conclusions and apply the clearly erroneous standard to
its factual findings. Cradle v. United States ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002).
2
Given the opportunity, we might join our sister
circuits in holding that, to obtain a conviction under section
922(o), the government must prove beyond a reasonable
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comes before us now as a collateral attack on the conviction
and sentence, not as a direct appeal, and the forms of relief
remaining to Ross are severely limited by statute. He may be
right that the 922(o) conviction is unlawful, but, given the
current posture of the case, not every wrong is in our power to
doubt that the defendant knew of the characteristics of the
firearm that render it a “machine gun” within the meaning of
section 5845(b). See United States v. Smith, 508 F.3d 861,
866 n.3 (8th Cir. 2007) (requiring the government to prove
that the defendant “knew he possessed a weapon with
characteristics that made it subject to registration
requirements”); United States v. Nieves-Castaño, 480 F.3d
597, 599 (1st Cir. 2007) (“[T]he government’s burden is to
prove that the defendant had knowledge of the characteristics
that brought the gun within the statutory definition … .”);
United States v. Camp, 343 F.3d 743, 745 (5th Cir. 2003)
(“Pursuant to Staples, the Government must prove a
defendant knew the weapon he possessed had the
characteristics that brought it within the statutory definition of
a machinegun.” (citations, emphasis, and internal quotation
marks omitted)); United States v. McGiffen, 267 F.3d 581,
589-90 (7th Cir. 2001) (requiring the government to prove
defendant knew of the weapon’s characteristics that “bring it
within the statutory definition”); United States v. Gravenmeir,
121 F.3d 526, 529-30 (9th Cir. 1997) (concluding the district
court properly instructed the jury that the government must
prove “the defendant knew that the firearm was a
machinegun”); United States v. Rogers, 94 F.3d 1519, 1523
n.5 (11th Cir. 1996) (agreeing with the government that
Staples’s reasoning applies with “equal force” to prosecutions
under section 922(o)).
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right. We are bound by the text of section 2255. That statute
provides, in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the
right to be released upon the ground that the
sentence was imposed in violation of the
Constitution or laws of the United States, or that
the court was without jurisdiction to impose
such sentence, or that the sentence was in
excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move
the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added).
The strictures of section 2255 constitute a threshold
test in addressing Ross’s post-conviction claims of ineffective
assistance of counsel. The viability of those claims, if we
were to reach their merit, is determined by the familiar two-
part inquiry outlined in Strickland v. Washington, pursuant to
which Ross has the burden of demonstrating (1) “that
counsel’s performance was deficient” and (2) “that the
deficient performance prejudiced the defense.” 466 U.S. at
687. The government contends, however, that, before getting
to that inquiry, we must reject Ross’s claim because it is not
cognizable under section 2255. Even if Ross’s trial and
appellate counsel provided objectively unreasonable
assistance that prejudiced him, he still would not be entitled
to relief, according to the government, because he is not
“claiming the right to be released” from “custody.” Ross
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responds that controlling precedent establishes that the $100
special assessment and the collateral consequences associated
with the 922(o) conviction each constitute “custody” within
the meaning of section 2255.
A. $100 SPECIAL ASSESSMENT
The plain text of section 2255 provides relief only to
those prisoners who claim the right to be released from
“custody.” The term “custody,” however, is not as
straightforward as it may at first appear. In McNally v. Hill,
293 U.S. 131, 136-37 (1934), the Supreme Court held that
discharge from physical confinement is the only relief
available in a habeas corpus proceeding, but the Court
reversed course in Peyton v. Rowe, 391 U.S. 54, 66-67
(1968), explaining that the concept of “custody” is expansive
enough to encompass harms and remedies other than
immediate discharge from physical confinement. Since
McNally, “our understanding of custody has broadened” to
include many forms of restraint short of physical
confinement, Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004).
See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)
(holding that, for mootness purposes, a petitioner is “in
custody” if he is burdened by the “collateral consequences” of
the challenged conviction); Jones v. Cunningham, 371 U.S.
236, 243 (1963) (holding that the conditions and restraints of
a parole order constituted “custody”). Despite the elasticity
the word “custody” has acquired, precedent firmly establishes
that the use of the term in federal habeas statutes is “designed
to preserve the writ of habeas corpus as a remedy for severe
restraints on individual liberty.” Hensley v. Mun. Court, San
Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)
(emphasis added); Barry v. Bergen Cnty. Prob. Dep’t, 128
10
F.3d 152, 159 (3d Cir. 1997). The Supreme Court has
distilled a three-part test for deciding what constitutes
custody: the restraints on the petitioner must be (1) severe, (2)
immediate (i.e., not speculative), and (3) not shared by the
public generally. Hensley, 411 U.S. at 351-53; Ira P Robbins,
Habeas Corpus Checklists 465 (2014-2015 ed.).
We have not previously considered whether a
monetary penalty such as the $100 special assessment
associated with Ross’s conviction under 922(o) is a “severe”
restraint on a defendant’s individual liberty, but the answer
must be no. Supreme Court decisions holding that a
petitioner suffered from a “severe restraint” on liberty have
emphasized the physical nature of the restraints. Hensley,
411 U.S. at 351 (emphasizing that the petitioner “cannot
come and go as he pleases” and that his “freedom of
movement rests in the hands of state judicial officers, who
may demand his presence at any time and without a
moment’s notice”); Peyton, 391 U.S. at 67 (1968) (holding
that “a prisoner serving consecutive sentences is ‘in custody’
under any one of them”); Jones, 371 U.S. at 242 (“Petitioner
is confined by the parole order to a particular community,
house, and job at the sufferance of his parole officer. He
cannot drive a car without permission.”). Our sister circuits
have followed the Supreme Court’s lead. See Calhoun v.
Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014)
(holding that the requirement to register under state sex
offender registration statute does not satisfy the “in custody”
requirement because it involves no physical restraint), cert.
denied, 135 S. Ct. 376 (2014); Virsnieks v. Smith, 521 F.3d
707, 718 (7th Cir. 2008) (“[T]he collateral consequences of a
conviction, those consequences with negligible effects on a
petitioner’s physical liberty of movement, are insufficient to
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satisfy the custody requirement.”); Williamson v. Gregoire,
151 F.3d 1180, 1183 (9th Cir. 1998) (noting that cases that
find a severe restriction on a petitioner’s liberty “rely heavily
on the notion of a physical sense of liberty – that is, whether
the legal disability in question somehow limits the putative
habeas petitioner’s movement”). Ross does not and could not
argue that the $100 special assessment imposes any
restriction on his freedom of movement, because, of course, it
does not.
Our own precedent holds that the monetary component
of a sentence is not capable of satisfying the “in custody”
requirement of federal habeas statutes. See Obado v. New
Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (per curiam) (“The
payment of restitution or a fine, absent more, is not the sort of
‘significant restraint on liberty’ contemplated in the ‘custody’
requirement of the federal habeas corpus statutes.”); cf. Barry,
128 F.3d at 161 (distinguishing “fine-only” sentences where a
petitioner is not “in custody” from sentences that restrict a
petitioner’s physical liberty on the basis that “fine-only”
sentences “implicate only property, not liberty”). Our sister
circuits too have held that fines, restitution orders, and other
monetary penalties are insufficient to meet the “in custody”
requirement. See Bailey v. Hill, 599 F.3d 976, 982 (9th Cir.
2010) (holding that a restitution order alone is insufficient to
trigger the “custody” requirement); Washington v. Smith, 564
F.3d 1350, 1350 (7th Cir. 2009) (affirming denial of state
habeas relief on a claim of ineffective assistance of counsel
with respect to the restitution amount, “because it does not
attack a custodial aspect of Washington’s sentence and, thus,
does not state a claim for relief under the habeas corpus
statutes”); Mamone v. United States, 559 F.3d 1209, 1209-12
(11th Cir. 2009) (per curiam) (holding that a restitution order
12
cannot be challenged in a section 2255 motion because a
claim seeking discharge or reduction of a restitution order
does not claim the right to be released from custody, even if it
accompanies other claims that actually claim the right to be
released from custody; Erlandson v. Northglenn Mun. Court,
528 F.3d 785, 788 (10th Cir. 2008) (“We agree with the
district court that the payment of restitution or a fine, absent
more, is not the sort of ‘significant restraint on liberty’
contemplated in the ‘custody’ requirement of the federal
habeas statutes.”(brackets and internal quotation marks
omitted)); Kaminski v. United States, 339 F.3d 84, 89 (2d Cir.
2003) (holding that a restitution order of $21,000 does not
constitute “custody” within the meaning of section 2255);
United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003)
(applying “the plain and unambiguous language” of section
2255 to hold “that a federal prisoner cannot challenge the
restitution portion of his sentence using 28 U.S.C. § 2255,
because this statute affords relief only to prisoners claiming a
right to be released from custody”); United States v. Segler,
37 F.3d 1131, 1137 (5th Cir. 1994) (holding that a $30,000
fine was not a sufficient restraint on liberty to meet the “in
custody” requirement of section 2255); United States v.
Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (“A monetary fine is
not a sufficient restraint on liberty to meet the ‘in custody’
requirement for § 2255 purposes.” (internal citations
omitted)). But see United States v. Jones, 403 F.3d 604, 607
(8th Cir. 2005) (holding that the defendant’s Strickland claim
merited relief under section 2255 in part because the
defendant was required to pay a $100 special assessment,
which the court stated constituted actual prejudice under
Strickland); United States v. Bass, 310 F.3d 321, 330 (5th Cir.
2002) (failing to cite Segler and stating that the defendant was
prejudiced by his counsel’s ineffective assistance when he
13
was sentenced to pay an additional $50 assessment). It seems
clear, therefore, both as a matter of fact and law that Ross’s
$100 special assessment does not constitute any meaningful
restriction on his liberty, let alone a severe restriction
cognizable under section 2255.
Ross nevertheless argues that “a special assessment
resulting from a wrongful conviction satisfies Strickland’s
prejudice requirement” and that the Supreme Court’s
decisions in Rutledge v. United States, 517 U.S. 292 (1996),
Ray v. United States, 481 U.S. 736 (1987) (per curiam), and
Ball v. United States, 470 U.S. 856 (1985), “apply forcefully
to show the prejudice of counsel’s deficient performance
here.” (Opening Br. at 29.) We do not agree. Rutledge is
easily distinguishable. In that case, the Supreme Court held
that conspiracy under 21 U.S.C. § 846 is a lesser included
offense of the crime of maintaining a continuing criminal
enterprise, forbidden by 21 U.S.C. § 848. 517 U.S. at 307.
The Court also held that the imposition of a special
assessment constitutes “punishment” under the Double
Jeopardy Clause. Id. at 301. As a result, the Supreme Court
concluded that imposition of a special assessment for
convictions under both sections 846 and 848 “amounts to
cumulative punishment not authorized by Congress.” Id. at
303. But we are not concerned here with whether a special
assessment constitutes “punishment” within the meaning of
the Double Jeopardy Clause; instead, we must determine
whether it constitutes “custody” within the meaning of
section 2255. Rutledge is of no help in that task.
Ray also provides practically no guidance in answering
the question before us. In that case, the Supreme Court
reviewed on direct appeal what has come to be called “the
14
concurrent sentence doctrine,” Ray, 481 U.S. at 737, which
says, in essence, that “courts are free to pretermit decision
about convictions producing concurrent sentences, when the
extra convictions do not have cumulative effects.” Ryan v.
United States, 688 F.3d 845, 849 (7th Cir. 2012). In Ray, the
Fifth Circuit had invoked the concurrent sentence doctrine
and declined to review one of the petitioner’s two convictions
on direct appeal for possession of cocaine with intent to
distribute because the sentences on the two counts of
possession were concurrent. Ray, 481 U.S. at 737. The
Supreme Court vacated the decision, holding that the
petitioner was not serving concurrent sentences because the
district court had imposed a $50 special assessment on each
of the three counts on which the defendant had been
convicted. Id. The Supreme Court concluded that, “[s]ince
petitioner’s liability to pay this total depends on the validity
of each of his three convictions, the sentences are not
concurrent.” Id. Thus, Ray establishes that, when a court
orders a defendant to pay a special assessment for each of
several counts of conviction, the sentences are not concurrent
and the “concurrent sentence” doctrine cannot be used to
avoid appellate review of each count of conviction. The
applicability of the concurrent sentence doctrine on direct
appeal is, however, distinct from the question presented here,
on collateral review under section 2255. Ray simply does not
advance Ross’s argument because it does not address the
meaning of “custody.”
In Ball, the Supreme Court held that duplicative convic
tions cannot stand even if the sentences are concurrent
because “[t]he separate conviction, apart from the concurrent
sentence, has potential adverse collateral consequences that
may not be ignored.” 470 U.S. at 865 (emphasis in original).
15
Such “adverse collateral consequences” included a potential
delay in the defendant’s eligibility for parole, an increased
sentence under a recidivist statute for a future offense, the use
of the additional conviction to impeach the defendant’s
credibility, and the societal stigma accompanying any
criminal conviction. Id. Again though, Ball involved a direct
appeal, not a habeas corpus petition under section 2255, and
its discussion of the harm stemming from the collateral
consequences of a felony conviction sheds no light on
whether or not a monetary fine like a special assessment is the
type of restriction on liberty that constitutes “custody” within
the meaning of that statutory provision.
Because we believe the burden of a special assessment
– even one imposed in conjunction with a wrongful
conviction – does not amount to “custody,” Ross is not
“claiming the right to be released” from “custody” and his
special assessment cannot serve as the basis for a claim under
section 2255.
2. COLLATERAL CONSEQUENCES
The parties dispute whether a petition premised on the
collateral consequences of an unlawful conviction, such as
those identified in Ball, is cognizable under section 2255.
Our own law does not answer the question, but we are not
without guidance. In Maleng v. Cook, 490 U.S. 488, 492
(1989) (per curiam), the Supreme Court held that, once a
sentence for a conviction has completely expired, the
collateral consequence of future sentencing enhancements
potentially caused by that conviction is not itself sufficient to
render an individual “in custody” for the purpose of a habeas
attack. Of course, the sentence for Ross’s conviction under
16
section 922(o) has not completely expired, but it is running
concurrently with several other sentences. This case thus
seems analogous to Maleng, since Ross’s only additional
harm stemming from the 922(o) conviction is whatever
undefined collateral consequences may arise, not the term of
imprisonment. In the end, however, we do not have to decide
whether, on these facts, the collateral consequences of a
wrongful conviction amount to “custody” under section 2255,
because Ross has not identified any such potential
consequences.
Though pressed at oral argument, Ross could not point
to a collateral consequence not already existing as a result of
his prior felony convictions or his seven other felony
convictions in this case. He says that, as a result of his
wrongful conviction under section 922(o), he is subject to
greater social stigma, his credibility could be attacked more
easily at a future hearing or trial, he may be barred from
obtaining the benefit of future changes to the law, or his
eligibility for parole or the length of a future sentence could
be affected if he is convicted of some future crime. But,
given his remarkably long rap sheet, which chronicles a
lifetime of drug-related offenses and violent crimes, coupled
with his seven other convictions in this case – including one
unquestionably valid conviction for machinegun possession,
namely count 7 – it is hard to see any significant collateral
consequence originating from his conviction under section
922(o), let alone one that rises to the level of “custody.”
Indeed, most of the “collateral consequences” that he
identifies are supported by nothing more than speculation,
which is insufficient to establish “custody.”
17
Relying on Spencer v. Kemna, 523 U.S. 1 (1998), and
a handful of cases that closely hew to it, Ross asserts that “[a]
presumption of collateral consequences exists whenever a
criminal defendant challenges his criminal conviction.”
(Opening Br. at 22 (internal quotation marks omitted).) He is
incorrect. Spencer did not hold that courts are to presume the
existence of collateral consequences in all cases where a
habeas petitioner challenges his conviction. Instead, Spencer
noted only that the Supreme Court has been “willing to
presume that a wrongful criminal conviction has continuing
collateral consequences (or, what is effectively the same, to
count collateral consequences that are remote and unlikely to
occur),” 523 U.S. at 8, in order “to avoid mootness in
challenges to conviction,” id. at 10. Ross provides no reason
why such a presumption should apply in a case like this,
where mootness is not at issue. But even if we were to
indulge in that presumption, it would be rebutted here for the
reasons we have already noted: Ross’s lengthy criminal
history, his multiple convictions in this case, and his
concurrent sentences all undermine his claim that somehow
his additional conviction will harm him in particular.
In the absence of any plausible evidence of collateral
consequences stemming from Ross’s section 922(o)
conviction, there is no basis to conclude that such
consequences render him “in custody” and eligible for relief
under section 2255.
III. CONCLUSION
For the reasons set forth above, we will vacate the
District Court’s order denying relief and direct that Ross’s
section 2255 motion be dismissed.
18