United States v. Tyronne Pollard, Jr. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-15958
Plaintiff-Appellee,
D.C. Nos.
v. 4:20-cv-01136-JSW
4:17-cr-00613-JSW-1
TYRONNE POLLARD, JR.,
Defendant-Appellant. ORDER AND
OPINION
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted April 16, 2021
San Francisco, California
Filed December 21, 2021
Before: Ryan D. Nelson and Danielle J. Forrest, * Circuit
Judges, and Janis Graham Jack, ** District Judge.
*
Formerly known as Danielle J. Hunsaker.
**
The Honorable Janis Graham Jack, United States District Judge
for the Southern District of Texas, sitting by designation.
2 UNITED STATES V. POLLARD
Order;
Opinion by Judge R. Nelson;
Concurrence by Judge R. Nelson;
Concurrence by Judge Forrest
SUMMARY ***
28 U.S.C. § 2255
The panel (1) withdrew an opinion filed August 27,
2021; (2) filed a replacement opinion affirming the prejudice
portion of the district court's order denying a 28 U.S.C.
§ 2255 motion in which Tyrone Pollard, Jr. challenged his
felon-in-possession guilty plea on the ground that he was not
informed of 18 U.S.C. § 922(g)(1)'s knowledge-of-status
element; and (3) otherwise denied a petition for rehearing
and, on behalf of the court, a petition for rehearing an banc.
Pollard filed the motion after the Supreme Court in
Rehaif v. United States, 139 S. Ct. 2191 (2019), held that §
922(g)(1) requires the government to prove that the
defendant knew he was a felon at the time of possession. The
district court denied the motion because Pollard had not
shown actual prejudice and thus failed to overcome the
procedurally defaulted nature of his claim. The district court
also determined that Pollard had shown cause to overcome
the procedural default.
The panel noted that everything in the record shows
Pollard was aware of his felon status, and that Pollard
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. POLLARD 3
conceded there is little question that one can reasonably infer
from his criminal history that he must have known he had
served more than a year in prison for a felony offense. The
panel rejected Pollard’s argument that the question is not
whether a jury would have convicted him, but whether he
would have gone to trial despite the uncontroverted evidence
of guilt—a purely subjective inquiry that does not track
recent Supreme Court precedent. The panel explained that a
court must determine whether the underlying record
objectively shows that a specific defendant would have not
pled guilty absent the allegedly prejudicial error. The panel
concluded that Pollard failed to show actual prejudice
because he did not point to any objective indications in his
underlying criminal proceedings that he would have not pled
guilty had he known of § 922(g)(1)’s knowledge-of-status
element.
Concurring, Judge R. Nelson wrote separately to address
the district court’s position that Pollard could show cause.
He wrote that at the time Pollard pled guilty, the claim
Pollard would later raise on collateral review was reasonably
available to him and was not a novel claim; and that even if
it were futile, the futility of raising statutory claims under the
circumstances of Pollard’s case has been rejected as a
showing of cause to overcome procedural default.
Concurring, Judge Forrest disagreed with Judge R.
Nelson that current Supreme Court precedent dictates a
broad futility-can-never-be-cause rule that bars collateral
review in federal criminal cases.
4 UNITED STATES V. POLLARD
COUNSEL
Geoffrey M. Jones (argued), Fairfax, California, for
Defendant-Appellant.
Merry Jean Chan (argued) and Briggs Matheson, Assistant
United States Attorneys; Matthew M. Yelovich, Chief,
Appellate Section, Criminal Division; Stephanie M. Hinds,
Acting United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
Geoffrey Hansen, Acting Federal Public Defender; Carmen
Smarandoiu, Chief, Appellate Unit; Office of the Federal
Public Defender, San Francisco, California; Cuauhtemoc
Ortega, Federal Public Defender; Brianna Mircheff, Deputy
Federal Public Defender, Los Angeles, California; for Amici
Curiae Ninth Circuit Federal Public and Community
Defender Offices.
ORDER
The Opinion filed August 27, 2021, and appearing at
10 F.4th 948 (9th Cir. 2021), is withdrawn and substituted.
It may not be cited as precedent by or to this court or any
district court of the Ninth Circuit. The Clerk is directed to
file the replacement opinion submitted with this order. The
Petitions for Rehearing and Rehearing En Banc are
otherwise DENIED. Subsequent petitions for rehearing or
rehearing en banc may be filed.
UNITED STATES V. POLLARD 5
OPINION
R. NELSON, Circuit Judge:
After Rehaif v. United States, 139 S. Ct. 2191 (2019),
Tyronne Pollard, Jr., collaterally challenged his felon-in-
possession guilty plea because he was not informed of
18 U.S.C. § 922(g)(1)’s knowledge-of-status element.
Because Pollard has not adequately shown actual prejudice,
his claim remains procedurally defaulted. See Greer v.
United States, 141 S. Ct. 2090, 2098 (2021). We therefore
affirm the prejudice portion of the district court’s order.
I
In December 2017, Pollard was indicted for possessing a
gun as a felon. See 18 U.S.C. § 922(g)(1). As the crime
implies, this was not Pollard’s first offense. Over the last
twenty years, he was convicted of several felonies and
served over five years in prison. His federal felon-in-
possession indictment was not his first gun-related offense
either. In 2004, Pollard was sentenced to over a year in
prison for violating California’s felon-in-possession statute.
So when officers found guns in Pollard’s possession in 2017,
the federal government’s allegations were straightforward:
Pollard was a felon who knowingly possessed a gun and
ammunition that were transported in interstate commerce.
Pollard pled guilty. He was sentenced to 57 months and did
not appeal.
A year later, the Supreme Court decided Rehaif, holding
that § 922(g)(1) requires the government to prove that the
defendant knew he was a felon at the time of possession. See
generally 139 S. Ct. 2191. Pollard then filed a motion to
vacate his conviction and sentence under 28 U.S.C.
§ 2255(a), contending that his guilty plea was not intelligent,
6 UNITED STATES V. POLLARD
knowing, or voluntary without having been informed of
§ 922(g)(1)’s knowledge-of-status element. The district
court denied Pollard’s motion because he had not shown
actual prejudice and thus failed to overcome the procedurally
defaulted nature of his claim. 1 This appeal followed.
II
We have jurisdiction under 28 U.S.C. § 2253(a) and
review the denial of Pollard’s § 2255 motion de novo.
United States v. Hardiman, 982 F.3d 1234, 1236 n.1 (9th Cir.
2020) (per curiam) (citation omitted).
III
“Habeas review is an extraordinary remedy and will not
be allowed to do service for an appeal.” Bousley v. United
States, 523 U.S. 614, 621 (1998) (internal quotation marks
and citation omitted). And like any petitioner who tries to
collaterally attack a guilty plea, Pollard must overcome
“significant procedural hurdles” before a court can reach the
merits of his challenge. Id. Specifically, Pollard’s motion is
procedurally defaulted since he did not appeal his conviction
in 2018. Id. Thus, Pollard must show (1) cause for why he
did not object to or directly appeal the alleged error and
1
The district court also determined that Pollard had shown cause to
overcome the procedural default. Because we do not depend on that
finding and leave that question for another day, that determination has
no preclusive effect in future cases. Cf. City of Colton v. Am.
Promotional Events, Inc.-W., 614 F.3d 998, 1004 n.4 (9th Cir. 2010) (“It
is a well-established principle of federal law that if an appellate court
considers only one of a lower court's alternative bases for its holding,
affirming the judgment without reaching the alternative bases, only the
basis that is actually considered can have any preclusive effect in
subsequent litigation.” (citing Niagara Mohawk Power Corp. v.
Tonawanda Band of Seneca Indians, 94 F.3d 747, 754 (2d Cir.1996)).
UNITED STATES V. POLLARD 7
(2) actual prejudice resulting from the error to overcome that
default. Id. at 622; Murray v. Carrier, 477 U.S. 478, 485
(1986). 2 This showing is “a significantly higher hurdle than
would exist on direct appeal.” United States v. Frady,
456 U.S. 152, 166 (1982). “In applying this dual standard to
the case before us, we find it unnecessary to determine
whether [Pollard] has shown cause, because we are
confident he suffered no actual prejudice of a degree
sufficient to justify collateral relief.” Id. at 168. 3
A petitioner who pled guilty is prejudiced if there is “a
reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 76 (2004). A court cannot consider whether a
defendant’s decision to go to trial “may have been foolish.”
United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir.
2005) (citation omitted). But a court can consider whether
evidence “proved beyond a reasonable doubt that Defendant
had the knowledge required by Rehaif and that any error”
2
Alternatively, a petitioner can show actual innocence to overcome
procedural default. Bousley, 523 U.S. at 622–23. Pollard does not argue
that here.
3
Pollard argues a Rehaif error is structural. In Greer, the Supreme
Court rejected that contention. 141 S. Ct. at 2099–2100. Structural
errors are a “highly exceptional category.” Id. at 2100 (citation and
internal quotation marks omitted). And “discrete defects in the criminal
process—such as . . . the omission of a required warning from a Rule 11
plea colloquy—are not structural because they do not ‘necessarily render
a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.’” Id. Thus, Rehaif errors are never
structural, and a habeas petitioner is still required to show actual
prejudice. At any rate, a habeas petitioner must show actual prejudice to
overcome procedural default, even if an error is structural, when the error
does not always result in actual prejudice. See generally Weaver v.
Massachusetts, 137 S. Ct. 1899 (2017).
8 UNITED STATES V. POLLARD
was not prejudicial. United States v. Benamor, 937 F.3d
1182, 1189 (9th Cir. 2019).
This evidence can be either direct or circumstantial.
Rehaif, 139 S. Ct. at 2198 (citing Staples v. United States,
511 U.S. 600, 615 n.11 (1994)). And “[i]n a felon-in-
possession case where the defendant was in fact a felon when
he possessed firearms, the defendant faces an uphill climb”
for a simple reason: “If a person is a felon, he ordinarily
knows he is a felon.” Greer, 141 S. Ct. at 2097. Thus, we
often consider a defendant’s criminal history to determine
whether a Rehaif error was prejudicial. E.g., Benamor,
937 F.3d at 1189 (finding “no probability” that Benamor did
not know of his status after serving multiple years in prison
for seven felonies, including a state felon-in-possession
conviction); United States v. Tuan Ngoc Luong, 965 F.3d
973, 989 (9th Cir. 2020) (finding “no reasonable probability”
of a different outcome when the defendant was in prison for
over a decade with six prior felony convictions); United
States v. Johnson, 979 F.3d 632, 638–39 (9th Cir. 2020)
(three felony convictions and over five years in prison made
it “overwhelming and uncontroverted” that Johnson knew of
his felon status). Thus, demonstrating prejudice under
Rehaif will be difficult for most convicted felons. See
United States v. Door, 996 F.3d 606, 619 (9th Cir. 2021)
(“[A]bsent any evidence suggesting ignorance,” the jury can
‘“infer that a defendant knew that he or she was a convicted
felon from the mere existence of a felony conviction’ as
evidenced by the defendant’s stipulation.” (citation
omitted)).
Given Pollard’s criminal history and the record below,
there is no probability that he was unaware of his felon
status. Before his current conviction, Pollard had served
over five years in prison for committing numerous felonies.
UNITED STATES V. POLLARD 9
And like in Benamor, Pollard had also been convicted under
a state felon-in-possession statute. See 937 F.3d at 1189.
Pollard’s plea colloquy also shows he knew he was a felon.
When the district court asked him why he was being
convicted, Pollard responded, “I possessed a firearm that I
wasn’t supposed to have.” And after the court asked why
Pollard was not supposed to have a gun, Pollard replied,
“Because I am a felon and my rights have been—didn’t have
the right to have it no more.” In short, everything in the
record shows Pollard was aware of his felon status.
Unsurprisingly, Pollard concedes there is little question that
one can reasonably infer from his criminal history that he
must have known he had served more than a year in prison
for a felony offense.
Still, Pollard argues that the question is not whether a
jury would have convicted him (the inquiry in cases like
Benamor), but whether he personally would have gone to
trial despite the uncontroverted evidence of guilt. In
essence, Pollard asks us to ignore the writing on the wall and
accept his bare assertion on collateral review that he would
not have pled guilty. We reject this purely subjective (and
potentially post hoc) inquiry as it does not track recent
Supreme Court precedent.
In Lee v. United States, Lee, a South Korean national
living in the United States, was repeatedly assured by his
attorney that he would not be deported if he pled guilty.
137 S. Ct. 1958, 1963 (2017). This advice was wrong, Lee
pled guilty, and he was ordered deported. Id. at 1962–63.
He filed a § 2255 motion, asking to vacate his guilty plea as
he would not have pled guilty but for his attorney’s error. Id.
The Supreme Court agreed, but not because of Lee’s
arguments during the habeas proceedings. Id. at 1969.
Instead, the Court looked to the underlying record. Id. at
10 UNITED STATES V. POLLARD
1968–69. It was clear that “avoiding deportation was the
determinative factor” and that Lee “would have rejected any
plea leading to deportation—even if it shaved off prison
time—in favor of throwing a ‘Hail Mary’ at trial.” Id.
at 1967. Lee repeatedly made this clear throughout his
proceedings, stating during his plea colloquy that the
possibility of deportation would affect his decision to plead.
Id. at 1968–69. These indications in the record were enough
for Lee to show actual prejudice—i.e., that he would have
gone to trial absent the error. Id. at 1969.
The analysis in Lee reflects a broader principle
applicable here. The underlying record must demonstrate a
reasonable probability that a defendant would not have pled
guilty; assertions raised on habeas review alone are
insufficient. True, this is not a purely objective test. Absent
the error, a defendant may have decided to throw a “Hail
Mary,” id. at 1967, even if doing so would “have been
foolish” to the reasonable defendant, Monzon, 429 F.3d at
1272. But neither is it a purely subjective test. Instead, a
court must determine whether the underlying record
objectively shows that a specific defendant would have not
pled guilty absent the allegedly prejudicial error. See Lee,
137 S. Ct. at 1967–69. Pollard has not pointed to any
objective indications in his underlying criminal proceedings
and has therefore failed to show actual prejudice—especially
in the face of strong evidence to the contrary. 4
4
Pollard argues had he known about the knowledge-of-status
defense, he would have been “emboldened” to pursue a “quixotic”
necessity defense. But a necessity defense is not inherently tied to
§ 922(g)(1)’s knowledge-of-status element. Instead, this defense is more
closely tied to the possession element, an element Pollard was aware of
when he decided to plead guilty. Pollard’s conclusory assertions do not
UNITED STATES V. POLLARD 11
IV
Pollard fails to show actual prejudice from any error as
nothing in the record objectively demonstrates that he would
have not pled guilty had he known of § 922(g)(1)’s
knowledge-of-status element.
AFFIRMED.
R. NELSON, Circuit Judge, concurring:
We correctly conclude that Pollard cannot show
prejudice and that is enough to resolve this case. I write
separately to address the district court’s position that Pollard
could show cause. At the time Pollard pled guilty, the claim
he would later raise on collateral review was reasonably
available to him. It was not a novel claim. And even if it
were futile, the futility of raising statutory claims under the
circumstances of Pollard’s case has been rejected as a
showing of cause to overcome procedural default.
Therefore, Pollard could show neither cause nor prejudice.
I
As stated in the majority opinion, “[h]abeas review is an
extraordinary remedy and will not be allowed to do service
for an appeal.” Bousley v. United States, 523 U.S. 614, 621
(1998) (internal quotation marks and citation omitted); Maj.
Op. 6. To collaterally attack his guilty plea and overcome
explain how being informed of the knowledge-of-status element would
have emboldened him to raise a defense available to him pre-Rehaif.
12 UNITED STATES V. POLLARD
procedural default, Pollard must show, as relevant here,
cause and prejudice.
The “cause and prejudice” standard is “grounded in
concerns of comity and federalism.” Coleman v. Thompson,
501 U.S. 722, 730 (1991). It requires a petitioner to show
both (1) cause for why he did not object to or directly appeal
the alleged error and (2) actual prejudice resulting from the
error to overcome that default. Bousley, 523 U.S. at 622.
While the majority concludes that Pollard cannot show
prejudice, neither can Pollard show cause.
“Underlying the concept of cause” is that “absent
exceptional circumstances, a defendant is bound by the
tactical decisions of competent counsel.” Reed v. Ross,
468 U.S. 1, 13 (1984). So, assuming defense counsel was
not constitutionally ineffective, counsel’s inadvertent or
intentional decision to not pursue a claim at trial or on appeal
is insufficient to show cause on collateral review. See
Murray v. Carrier, 477 U.S. 478, 488 (1986). Instead, to
establish cause for procedural default, a petitioner must
show that “some objective factor external to the defense
impeded counsel’s efforts” to bring the issue up on direct
appeal. Id.One external factor is when the claim was unavailable to
a petitioner at the time of his direct appeal, such as when his
constitutional claim is “so novel that its legal basis is not
reasonably available to counsel.” Reed, 468 U.S. at 16.
“Where the basis of a constitutional claim is available, and
other defense counsel have perceived and litigated that
claim, the demands of comity and finality counsel against
labeling alleged unawareness of the objection as cause for a
procedural default.” Engle v. Isaac, 456 U.S. 107, 134
(1982). Thus, if a petitioner had the tools to construct a legal
argument during his underlying proceedings, that argument
UNITED STATES V. POLLARD 13
is not novel enough to constitute cause for failing to raise it
earlier. See Anderson v. Kelley, 938 F.3d 949, 962 (8th Cir.
2019). For this reason, Pollard’s claim is not novel given
that “the Federal Reporters were replete with cases
involving” the same claim. Bousley, 523 U.S. at 622; see
Rehaif v. United States, 139 S. Ct. 2191, 2199 (2019).
Though both are in the same family of reasons a claim
was unavailable to a petitioner, novelty and futility are not
the same. Novelty is about new claims while futility
concerns newly available claims. As the Eleventh Circuit
has aptly noted, “[i]n procedural default cases, the question
is not whether legal developments or new evidence has made
a claim easier or better, but whether at the time of the direct
appeal the claim was available at all.” Lynn v. United States,
365 F.3d 1225, 1235 (11th Cir. 2004) (citing Smith v.
Murray, 477 U.S. 527, 534 (1986)). Defense counsel may
choose not to pursue a claim that has been rejected, but that
is not to say the claim does not exist: a defendant’s
“opportunity to object” is not the same as his “likelihood of
prevailing on the objection.” Greer v. United States, 141 S.
Ct. 2090, 2099 (2021).
II
Here, the district court wrongly held that Pollard had
shown cause because his Rehaif claim had been uniformly
rejected and thus was not reasonably available to him on
direct appeal of his guilty plea. Though the lack of prejudice
to Pollard procedurally bars his 28 U.S.C. § 2255 motion, I
write separately to explain why the district court’s holding
was wrong.
The Supreme Court first addressed and rejected futility
as grounds for cause in the 1940s. Sunal v. Large, 332 U.S.
174, 183 (1947); see also Brent E. Newton, An Argument for
14 UNITED STATES V. POLLARD
Reviving the Actual Futility Exception to the Supreme
Court’s Procedural Default Doctrine, 4 J. App. Prac. &
Process 521, 527–44 (2002) (outlining history of futility as
cause to excuse procedural default). Ultimately in Isaac, the
Court held that “the futility of presenting an objection to the
state courts cannot alone constitute cause for failure to object
at trial,” because “[e]ven a state court that has previously
rejected a constitutional argument may decide, upon
reflection, that the contention is valid.” 456 U.S. at 130. “If
a defendant perceives a constitutional claim and believes it
may find favor in the federal courts, he may not bypass the
state courts because he thinks they will be unsympathetic to
the claim.” Id.
Bousley applied Isaac to federal defendants challenging
a change in statutory law. Unlike here, the Rehaif-like case
in Bousley was first decided by the Eighth Circuit in a
divided opinion, then reheard en banc with multiple dissents,
was the subject of a circuit split, and ultimately decided by
the Supreme Court. But still, Bousley ruled that “futility
cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time.”
Bousley, 523 U.S. at 623 (quoting Isaac, 456 U.S. at 130
n.35).
In this court, after briefly accepting futility as cause, see,
e.g., Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981), we
cited Isaac to call the futility doctrine “short-lived,” Noltie
v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993). Thereafter,
when we upheld a showing a cause for futility, the Supreme
Court showed its disapproval. Under circumstances similar
to Pollard’s case, we held that a claim was futile where a
contrary statutory scheme had been upheld a few years
before, “no reported case anywhere had held” favorably, and
“there was no reason to believe that any court, anywhere,
UNITED STATES V. POLLARD 15
would be sympathetic to the claim.” LaGrand v. Stewart,
173 F.3d 1144, 1147–48 (9th Cir. 1999). However, the
Supreme Court reversed the grant of the stay of execution.
Stewart v. LaGrand, 535 U.S. 1173 (1999). And, in a related
case, the Supreme Court held that a similarly situated
petitioner had failed to show cause because controversy
surrounding the same claim had existed for decades, several
states were considering changing their relevant laws, and
two Supreme Court justices had expressed their views that
the claim was viable. Stewart v. LaGrand, 526 U.S. 115,
119–20 (1999).
Other courts have recognized the futility of relying on
the futility doctrine. See, e.g., Minter v. Beck, 230 F.3d 663,
665–66 (4th Cir. 2000) (holding that negative constitutional
case law rendering the raising of a claim futile did not
constitute state-created “impediment”); United States v.
Sanders, 247 F.3d 139, 145–46 (4th Cir. 2001) (allowing
futility to act as cause for constitutional law change “would
invite defendants to bypass the preferred procedural avenue
of trial and direct appeal in favor of collateral review,” which
would become “an all-purposive receptable for claims which
in hindsight appear more promising than they did at the time
of trial”); Gatewood v. United States, 979 F.3d 391, 396 &
n.2 (6th Cir. 2020) (even “the alignment of the circuits
against a particular legal argument does not equate to cause
for procedurally defaulting it” (citation omitted)); United
States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (“even
when the law is against a contention, a litigant must make
the argument to preserve it for later consideration”); McCoy
v. United States, 266 F.3d 1245, 1259 (11th Cir. 2001)
(“Supreme Court could not have been clearer that perceived
16 UNITED STATES V. POLLARD
futility does not constitute cause to excuse a procedural
default”). 1
When other circuits have disagreed, the claims at issue
generally addressed changes in constitutional law where the
Supreme Court reversed itself. See, e.g., Lassend v. United
States, 898 F.3d 115, 122–23 (1st Cir. 2018) (distinguishing
Bousley for constitutional change in the law where Supreme
Court overruled itself); Cross v. United States, 892 F.3d 288,
295 (7th Cir. 2018) (reversing course for Seventh Circuit on
constitutional, not statutory, law change where Supreme
Court overruled itself); United States v. Snyder, 871 F.3d
1122, 1127 (10th Cir. 2017) (finding constitutional change
in the law unavailable where Supreme Court overruled
itself). Pollard’s claims here involve statutory law, not
constitutional law, and in Rehaif the Supreme Court reversed
the lower courts, not its own precedent.
The Supreme Court in Reed suggested in dicta two
situations when “the failure of a defendant’s attorney to have
pressed such a claim before a state court is sufficiently
excusable to satisfy the cause requirement”: (1) where the
Supreme Court explicitly overrules itself; and (2) where the
Supreme Court overturns a longstanding and widespread
practice expressly approved by a near-unanimous body of
lower courts, but which the Supreme Court had not
addressed. Reed, 486 U.S. at 17. Pollard asserts, and the
district court agreed, that the second situation applies since
1
The Second Circuit held that cause can be established by futility
due to “an unlikely development in [state statutory] law.” Gutierrez v.
Smith, 702 F.3d 103, 111–12 (2d Cir. 2012). But Gutierrez relied on
precedent that either said futility may act as cause for constitutional law
changes, see DiSimone v. Phillips, 461 F.3d 181, 191 (2006), or found
cause due to a factual, not legal, basis being unavailable to counsel, see
Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999).
UNITED STATES V. POLLARD 17
the Supreme Court reversed every circuit that had addressed
the issue in Rehaif. See Tate v. United States, 982 F.3d 1226,
1228 (9th Cir. 2020) (“Rehaif interpreted a statute and did
not invoke any constitutional provision or principle”).
But the “vitality” of the dicta in Reed “has been
questioned following the Supreme Court’s decisions in
Teague [v. Lane, 489 U.S. 288 (1989)] and Bousley.” United
States v. Moss, 252 F.3d 993, 1002–03 (8th Cir. 2001)
(collecting cases). Regardless, we are not bound by
Supreme Court dicta “should more complete argument
demonstrate that the dicta is not correct.” Kirtsaeng v. John
Wiley & Sons, Inc., 568 U.S. 519, 548 (2013). Bousley was
decided after Reed, and Bousley’s futility rule was
dispositive rather than dicta. Bousley made no exception for
claims that received consistent negative treatment in the
courts. See 523 U.S. at 623. And while the first situation
from Reed continues to make sense, see Cvijetinovic v.
Eberlin, 617 F.3d 833, 839 n.7 (6th Cir. 2010), the second
Reed hypothetical is difficult to apply in practice. That an
argument is unacceptable to a particular Court of Appeals, at
that particular time, does not excuse a defendant from raising
the claim. This reasoning holds true even if all the Courts of
Appeals have taken the same position. Since Reed was
decided almost four decades ago, the Supreme Court has
never relied on the second hypothetical to excuse default.
Moss, 252 F.3d at 1003. We likewise have never found it
dispositive.
Moreover, Reed confined its attention specifically to the
situation presented there: “one in which th[e] Court has
articulated a constitutional principle that had not been
previously recognized but which is held to have retroactive
application.” 486 U.S. at 17. When the Supreme Court
addresses a change in a constitutional rule, such an argument
18 UNITED STATES V. POLLARD
is less available to petitioners before the change than a more
typical argument of statutory interpretation. Bousley, in
contrast, dealt with a change in statutory law, declined to
recognize futility as cause, and did not expressly limit its
holding. 523 U.S. at 617. Though Bousley referenced Reed
without mentioning that Reed applied to constitutional
principles, Bousley only cited Reed to distinguish it. Id.
at 622. Bousley did not extend Reed to statutory principles.
Here, like Bousley, Rehaif was a matter of statutory
interpretation, see Tate, 982 F.3d at 1228, so Reed’s
examples of unavailable claims do not apply.
Put simply, procedural default is still a high bar,
overcome by futility only in “exceptional circumstances,”
Reed, 468 U.S. at 13, such as when a claim has been
decisively foreclosed by Supreme Court precedent at the
time of default, see Cvijetinovic, 617 F.3d at 839 n.7.
Though there may be rare exceptions, Bousley’s holding is
broad, without reference to how futile a claim may be.
523 U.S. at 622; see also Simpson v. Matesanz, 175 F.3d
200, 211–15 (1st Cir. 1999) (though Reed is still good law,
it is “subject to Bousley’s caveat”); Daniels v. United States,
254 F.3d 1180, 1191, 1194 (10th Cir. 2001) (en banc)
(analyzing constitutional claim and recognizing that Bousley
had narrowed Reed); McCoy, 266 F.3d at 1259.
Applying these principles, Pollard has not shown cause.
Unlike an argument based on a new constitutional principle,
the tools to construct Pollard’s § 922(g)(1)’s knowledge-of-
status argument were reasonably available to him. The
argument was being made all over the country. Before
Rehaif, defendants had repeatedly raised the argument in all
but two of the circuits since § 922(g)(1)’s most recent
amendment. See 139 S. Ct. at 2195; id. at 2210 n.6 (Alito,
J., dissenting) (collecting cases); see also, e.g., United States
UNITED STATES V. POLLARD 19
v. Miller, 105 F.3d 552, 555 (9th Cir. 1997) (rejecting a
knowledge-of-status element). Thus, “[u]nless and until the
Supreme Court overrules its decisions that futility cannot be
cause,” McCoy, 266 F.3d at 1259, Pollard was required to
preserve his claim on direct appeal to bring it on collateral
review, see Bousley, 523 U.S. at 623.
Finally, Pollard and Federal Public and Community
Defenders amici raise concerns that this reasoning would
require defense counsel to argue even the “kitchen sink” and
risk being sanctioned for bringing frivolous claims. See
United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001)
(Wood, J., dissenting from denial of rehearing en banc).
This policy argument is unpersuasive—this has been the law
nationwide for a long time with little evidence that defense
counsel have been placed in untenable situations.
Competent defense counsel regularly preserve arguments for
future appeal. Defense counsel are trusted with the great
responsibility of using their discretion to bring the best
arguments reasonably available.
* * *
The majority opinion limits its analysis to the strong
lack-of-prejudice argument. But it did not need to do so.
Pollard’s knowledge-of-status argument was reasonably
available to him when he elected to forego an appeal of his
guilty plea, and thus he also cannot show cause.
FORREST, Circuit Judge, concurring:
I respectfully disagree with Judge Nelson that current
Supreme Court precedent dictates a broad futility-can-never-
be-cause rule that bars collateral review in federal criminal
20 UNITED STATES V. POLLARD
cases. Of course, “futility cannot constitute cause if it means
simply that a claim was unacceptable to that particular court
at that particular time.” Bousley v. United States, 523 U.S.
614, 623 (1998) (quoting Engle v. Isaac, 456 U.S. 107, 130
n.35 (1982)). But that is materially different from where a
claim has been uniformly rejected by every circuit to
consider it for a sustained period of time, as the Supreme
Court posited in Reed v. Ross, 468 U.S. 1, 17 (1984)
(recognizing cause for procedural default exists where a
claim challenges “a longstanding and widespread practice to
which th[e Supreme] Court has not spoken, but which a near-
unanimous body of lower court authority has expressly
approved.”).
In my view, this point in Reed is still good law and the
suggestion that it should be disregarded as dicta is
unpersuasive. See Boardman v. Inslee, 978 F.3d 1092, 1106–
07 (9th Cir. 2020), cert. denied, 142 S. Ct. 387 (2021). Judge
Nelson relies primarily on Bousley in asserting that futility
can never be cause. But there, the circuit courts had not been
unified for an extended period in rejecting the issue that was
raised on collateral review. Bousley, 523 U.S. at 616; Bailey
v. United States, 516 U.S. 137, 142 (1995). Thus, the general
futility rule from Isaac applied, and the Supreme Court did
not need to discuss the above-referenced point from Reed.
At the very least, Bousley did not indicate that it was
rejecting its prior acknowledgment in Reed that there are
limited circumstances where futility could be cause under
the procedural default analysis. Thus, even if that point was
dicta, Bousley is not the type of “more complete argument”
that suggests we should ignore Reed’s reasoned analysis. See
Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548
(2013).
UNITED STATES V. POLLARD 21
Because the case at hand falls within the limited
circumstance acknowledged in Reed, see Rehaif v. United
States, 139 S. Ct. 2191, 2201 (2019) (Alito, J. dissenting)
(the interpretation of 18 U.S.C. § 922(g) had been “adopted
by every single Court of Appeals to address the question”
and “used in thousands of cases for more than 30 years”), I
agree that this case should be affirmed only on the prejudice
prong of the procedural default analysis.