Smith v. United States ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 ANTONIO P. SMITH, Case No. C19-696-RSL 9 10 Petitioner, ORDER ON PETITIONER’S 11 v. 28 U.S.C. § 2255 MOTION AND RELATED MOTIONS 12 UNITED STATES OF AMERICA, 13 Respondent. 14 15 This matter comes before the Court on (1) petitioner Antonio P. Smith’s “Motion Under 16 28 U.S.C. § 2255 to Vacate a Sentence by a Person in Federal Custody” (Dkt. # 1), (2) the 17 government’s “Motion to Dismiss Petition” (Dkt. # 9), and (3) Mr. Smith’s “Motion to Amend 18 Pending Motion Under 28 U.S.C. § 2255 to Vacate Judgment and Sentence of Petitioner” (Dkt. 19 # 13).1 Having reviewed the memoranda of the parties and the record contained herein, the 20 Court finds as follows: 21 I. BACKGROUND 22 A. Conviction Under 18 U.S.C. § 922(g)(1) 23 On January 5, 2018, the government charged Mr. Smith by complaint with one count of 24 Felon in Possession of Ammunition in violation of 18 U.S.C. § 922(g)(1). CR18-12-RSL 25 26 1 The government also filed a “Motion for Extension to Respond to Petition” (Dkt. #7). The Court, finding good cause, GRANTS the government’s request for an extension of time until December 27 20, 2019. The government filed its motion to dismiss the petition on December 16, 2019, within this 28 timeline. Dkt. # 9. The parties agree that the matter is fully briefed. Dkt. # 25 at 2. 1 Complaint (Dkt. # 4). The complaint alleges that, on or about December 12, 2003, Mr. Smith 2 was convicted in King County Superior Court of burglary in the second degree, a crime the 3 Complaint described as being “punishable by imprisonment for a term exceeding one year.” Id. 4 On January 17, 2018, Mr. Smith was indicted by Grand Jury on one count of Felon in 5 Possession of Ammunition in violation of 18 U.S.C. § 922(g)(1). CR18-12-RSL Indictment 6 (Dkt. # 11). The indictment listed the 2003 second degree burglary as the predicate felony 7 offense. Id. On January 30, 2018, Mr. Smith pled guilty to count one of the indictment. CR18- 8 12-RSL Plea Agreement (Dkt. # 19); CR18-12-RSL Order of Acceptance (Dkt. # 23). The plea 9 agreement identifies the elements of the offense as follows: (1) “the defendant knowingly 10 possessed ammunition,” (2) “the ammunition was not manufactured in the State of Washington 11 and therefore had traveled in interstate or foreign commerce,” and (3) “the defendant previously 12 had been convicted of a crime punishable by a term of imprisonment exceeding one year.” 13 CR18-12-RSL Plea Agreement ¶ 2. The plea agreement also recites the 2003 second degree 14 burglary as Mr. Smith’s predicate felony offense. Id. ¶ 8.a. On May 11, 2018, the Court 15 sentenced Mr. Smith to time served and three years of supervised release. CR18-12-RSL 16 Judgment (Dkt. # 31). 17 B. Supervised Release Violations 18 On May 21, 2018, Mr. Smith was released from custody to reside in a residential reentry 19 center. CR18-12-RSL Violation Memorandum (Dkt. # 39). On July 10, 2018, Mr. Smith was 20 terminated from the residential reentry center after failing to satisfactorily reside and participate 21 there. Id. He was taken into custody and on September 6, 2018, the Court sentenced him to time 22 served and 24 months of supervised release. CR18-12-RSL Judgment (Dkt. # 52). He returned 23 to the residential reentry center and then faced additional allegations of supervised release 24 violations. See CR18-12-RSL Violation Memorandum (Dkt. # 55). 25 C. Charges Under 18 U.S.C. §§ 115(a)(1)(B), (b)(4) 26 On October 1, 2018, Mr. Smith was arrested and charged by complaint with one count of 27 threatening to murder a federal probation officer in violation of 18 U.S.C. §§ 115(a)(1)(B), 28 (b)(4). CR18-246 Complaint (Dkt. # 1). The Grand Jury returned an indictment on this count on 1 October 11, 2018. CR18-246 Indictment (Dkt. # 8). Thereafter, Mr. Smith’s counsel notified the 2 Court that it had concerns as to his competency. The Court held a competency hearing on 3 February 22, 2019 and found Mr. Smith to be mentally incompetent. CR18-246 Order for 4 Commitment (Dkt. # 33). The Court ordered that Mr. Smith be immediately transported to 5 initiate competency restoration treatment. CR18-246 Order Granting Defendant’s Motion to 6 Seal Motion to Order the Attorney General to Immediately Initiate Competency Restoration 7 Treatment (Dkt. # 39). On September 23, 2019, the Court issued an order extending Mr. Smith’s 8 commitment for restoration treatment for an additional 120 days consistent with a 9 recommendation issued by personnel at Federal Medical Center (“FMC”) Butner. CR18-246 10 Order Extending Commitment for Restoration Treatment (Dkt. # 52). On January 21, 2020, 11 FMC Butner personnel issued a report concluding there was not a substantial probability that 12 Mr. Smith’s competency could be restored in the foreseeable future. CR18-246 Forensic 13 Evaluation (Dkt. # 54) (the report was filed with the Court on February 7, 2020). The parties 14 indicated that Mr. Smith was returned to the Federal Detention Center (“FDC”) SeaTac 15 approximately one month later. CR18-246 Joint Status Report of Parties (Dkt. # 55). 16 D. Petition Under 28 U.S.C.§ 2255 and Subsequent Procedural History 17 On May 9, 2019, Mr. Smith filed a 28 U.S.C. § 2255 petition challenging his sentence for 18 the conviction under 18 U.S.C. § 922(g)(1) (CR18-12-RSL). See Dkt. # 1. On May 28, 2019, the 19 government moved to stay its response to Mr. Smith’s petition pending the outcome of the Ninth 20 Circuit’s decision in United States v. McAdory, 935 F.3d 838 (9th Cir. 2019). Dkt. # 5. The 21 Court granted the motion and stayed the government’s deadline to respond to the petition until 22 14 days from the date of a decision in McAdory.2 Dkt. # 6. The Ninth Circuit’s decision in 23 McAdory became final on November 25, 2019. Mandate, United States v. McAdory, 935 F.3d 24 838 (9th Cir. 2019) (No. 18-30112) (Dkt. # 75). On December 16, 2019, the government moved 25 to dismiss Mr. Smith’s § 2255 petition. Dkt. # 9. The Court held a teleconference on January 23, 26 27 2 On December 9, 2019, the government moved for a brief extension of time to respond to Mr. 28 Smith’s petition (Dkt. # 7). As described above, the government’s motion is GRANTED. See supra n.1. 1 2020, regarding the status of Mr. Smith’s competency evaluation and the potential for a global 2 resolution of Mr. Smith’s habeas petition and pending criminal matters. Dkt. # 12. 3 On June 22, 2020, Mr. Smith moved to amend his § 2255 petition to add a claim under 4 Rehaif v. United States, 139 S. Ct. 2191 (June 21, 2019). Dkt. # 13. On September 9, 2020, the 5 Court held a status conference on the § 2255 petition and the outstanding criminal matters and 6 granted the parties’ request for another status hearing to discuss resolution. Dkt. # 19. The 7 parties filed supplemental briefing regarding the § 2255 petition in September of 2020 regarding 8 the Ninth Circuit’s decision in United States v. Asuncion, 974 F.3d 929 (9th Cir. 2020), and the 9 Court held another status conference on December 8, 2020. At that conference, the Court agreed 10 to release defendant on bond to participate in a mental health residential facility, consistent with 11 the parties’ recommendation. CR18-246 12/8/20 Minute Entry (Dkt. # 60). The parties’ most 12 recent joint status report dated March 15, 2021, recommended that the Court dismiss the threat 13 case (CR18-246-RSL) without prejudice, as well as the pending supervised released violations 14 (CR18-12-RSL), because Mr. Smith is incompetent and unlikely to be restored. Dkt. # 25. On 15 March 19, 2021, the Court concluded that Smith is incompetent and unlikely to be restored to 16 competency in the future and dismissed the supervised release violations and threat case 17 accordingly. CR18-12-RSL 3/19/2020 Minute Entry (Dkt. # 115); CR18-246-RSL 3/19/2020 18 Minute Entry (Dkt. # 63). On that same day, the Court briefly addressed the pending § 2255 19 petition and explained that an Order would issue. This Order reflects the Court’s full analysis of 20 Mr. Smith’s § 2255 petition (Dkt. # 1), the government’s motion to dismiss the petition (Dkt. 21 # 9), and Mr. Smith’s motion to amend the petition (Dkt. # 13). 22 II. MOTION TO AMEND (DKT. # 13) 23 As an initial matter, the Court must determine whether Mr. Smith may add a claim for 24 Rehaif relief to his § 2255 petition. Mr. Smith’s motion to amend was filed before adjudication 25 of the initial § 2255 petition had been completed such that the Anti-Terrorism Effective Death 26 Penalty Act’s bar on second or successive petitions does not prevent the amendment. Clark v. 27 United States, 764 F.3d 653, 658 (6th Cir. 2014) (“A motion to amend is not a second or 28 successive § 2255 motion when it is filed before the adjudication of the initial § 2255 is 1 complete—i.e., before the petitioner has lost on the merits and exhausted her appellate 2 remedies.”) (citing Ching v. United States, 298 F.3d 174, 177–78 (2d Cir. 2002) and Johnson v. 3 United States, 196 F.3d 802, 805 (7th Cir. 1999)). The Rules Governing Section 2255 4 Proceedings for the United States District Courts also do not bar the amendment. See Rules 5 Governing Section 2255 Proceedings for the United States District Courts. 6 Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts says that when special collateral-attack rules do not include a 7 special provision for a circumstance, the court should be guided by the Rules of 8 Civil and Criminal Procedure. See 28 U.S.C. § 2255 Rule 12. Because the Rules Governing Section 2255 Proceedings for the United States District Courts do not 9 deal with amendments to motions for collateral review, a motion to amend a 10 § 2255 motion is generally governed by the Federal Rules of Civil Procedure. 11 Clark, 764 F.3d at 661. Federal Rule of Civil Procedure 15(a)(2) provides that the Court “should 12 freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Mr. Smith’s 13 motion to add a claim for Rehaif relief serves the interest of justice because when he filed his 14 initial motion, the Supreme Court had not yet decided Rehaif. Additionally, the government 15 does not expressly object to Mr. Smith’s amendment of the petition,3 but rather, maintains that 16 he is not entitled to relief under Rehaif on the merits. See Dkt. # 15. Accordingly, the Court 17 GRANTS Mr. Smith’s motion to amend his § 2255 petition and will address the merits of the 18 Rehaif claim as part of its analysis of Mr. Smith’s petition. 19 III. PETITION UNDER 28 U.S.C. § 2255 (DKTS. # 1, # 9) 20 Under 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to 21 vacate, set aside, or correct his sentence where “the sentence was imposed in violation of the 22 Constitution or the laws of the United States, or [where] the court was without jurisdiction to 23 impose such a sentence, or [where] the sentence was in excess of the maximum authorized by 24 law, or is otherwise subject to collateral attack[.]” Mr. Smith initially asserted three “grounds for 25 26 3 The government has therefore waived any arguments regarding timeliness of the Rehaif claim. See United States v. Hill, 915 F.3d 669, 673 n.1 (9th Cir. 2019) (“Because the government does not 27 distinctly argue that [the petitioner’s] claim is untimely under the one-year statute of limitations in 28 28 U.S.C. § 2255(f), it has waived this argument and we do not address it.”). 1 relief”: (1) he was not previously convicted of a crime punishable by imprisonment for a term 2 exceeding one year, (2) he received ineffective assistance of counsel because his lawyers failed 3 to raise the issue that Mr. Smith did not have a predicate felony, and (3) he is actually innocent 4 of the crime of felon in possession of ammunition in violation of § 922(g)(1). As discussed 5 above, Mr. Smith amended his petition to add a claim for relief under Rehaif. Ultimately, the 6 Court concludes that Mr. Smith’s conviction and sentence must be vacated under Rehaif, and the 7 Court declines to address the other grounds Mr. Smith puts forward.4 Because certain procedural 8 aspects of Mr. Smith’s motion turn on resolution of the motion’s merits, the Court will address 9 the merits first. 10 A. Applying Ninth Circuit Precedent to Predicate Offenses Under the Washington Juvenile Sentencing System 11 Mr. Smith argues that he is actually innocent of 18 U.S.C. § 922(g)(1) because the crime 12 requires proof of a predicate offense “punishable by imprisonment for a term exceeding one 13 year,” and Mr. Smith contends that his predicate offense does not meet this requirement. The 14 government contends that the predicate offense requirement has been met here. Resolution of 15 the parties’ dispute hinges on the application of a line of Ninth Circuit cases interpreting what it 16 means for a Washington state crime to be “punishable by imprisonment for a term exceeding 17 one year,” including United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), United 18 States v. McAdory, 935 F.3d 838 (9th Cir. 2019), and United States v. Asuncion, 974 F.3d 929 19 (9th Cir. 2020). Although the Court finds the reasoning of this line of cases problematic, the 20 Court is bound to follow the Ninth Circuit’s rulings on this issue. See Hart v. Massanari, 266 21 F.3d 1155, 1170 (9th Cir. 2001) (“A district judge may not respectfully (or disrespectfully) 22 disagree with his learned colleagues on his own court of appeals who have ruled on a controlling 23 legal issue.”). 24 25 26 4 The Court observes that the first “ground for relief” Mr. Smith articulates appears to function more as the basis for understanding Mr. Smith’s claims for ineffective assistance of counsel, 27 freestanding actual innocence, and relief under Rehaif, rather than operating as its own independent 28 ground for relief. 1 First, in Valencia-Mendoza, the Ninth Circuit held that “the top sentence of the 2 guidelines range was the maximum possible statutory punishment” under Washington law 3 because Washington statutes prescribe a required sentencing range that binds the sentencing 4 court. Valencia-Mendoza, 912 F.3d at 1223. This decision overruled United States v. Murillo, 5 422 F.3d 1152, 1154 (9th Cir. 2005), a case that had interpreted the maximum sentence to be 6 “the statutory maximum sentence for the offense, not the maximum sentence available in the 7 particular case under the sentencing guidelines.” The Valencia-Mendoza decision concerned the 8 adult sentencing system put in place in 2005, after the Supreme Court held that the previous 9 system was unconstitutional. See Asuncion, 974 F.3d at 932 n.2 (citing Blakely v. Washington, 10 542 U.S. 296 (2004)); Final Bill Report SB 5477, 59th Leg. (Wash. 2005). The Ninth Circuit 11 then applied the Valencia-Mendoza holding in McAdory to conclude that “a Washington 12 conviction is only ‘punishable by’ a year or more of imprisonment for purposes of § 922(g)(1) if 13 the defendant’s conviction actually exposed the defendant to that sentence under the state’s 14 mandatory sentencing scheme.” McAdory, 935 F.3d at 843. Where none of McAdory’s prior 15 convictions had sentencing ranges exceeding one year or written findings that would justify an 16 upward departure from the sentencing ranges, the Ninth Circuit determined that no predicate 17 offenses existed within the meaning of § 922(g)(1). Id. at 844. Although McAdory did not 18 explicitly distinguish between the adult and juvenile sentencing systems,5 two of the three prior 19 convictions at issue were juvenile felony convictions. Id. at 841. 20 Following McAdory, the Ninth Circuit decided Asuncion, which concerned 21 Washington’s former adult sentencing system, before it was reformed in 2005. Asuncion, 974 22 F.3d at 933. The Ninth Circuit held that offenses sentenced under Washington’s former adult 23 sentencing system “would have been punishable by more than one year, because under that 24 system the judge had broad, open-ended discretion to impose a sentence above the guideline 25 range (and thus above a year).” Id. at 932. The Ninth Circuit contrasted the newer adult system 26 5 Although Washington State typically uses the word “disposition” in lieu of “sentencing,” in the 27 juvenile justice context, because this Order concerns comparisons between the adult and juvenile 28 systems, it will use the word “sentencing” to describe both systems. 1 that was at issue in Valencia-Mendoza, under which courts could impose “above-guideline 2 sentences based on judge-found facts in only four enumerated circumstances,” with the previous 3 system, under which the judge’s discretion was “far greater” and where the judge could conduct 4 “an open-ended inquiry into any potential factual circumstance.” Id. at 932–34; see also 5 Valencia-Mendoza, 912 F.3d at 1218 (citing RCW 9.94A.535(2) (2019)). 6 The government argues that Asuncion “dooms” Mr. Smith’s petition because the juvenile 7 sentencing system is more akin to Washington’s former adult sentencing system than it is to the 8 newer version. Dkt. # 20 at 2. Mr. Smith, however, argues that the juvenile sentencing system is 9 more similar to the newer adult sentencing system and that McAdory controls the outcome here 10 anyway. The Court concludes that Ninth Circuit precedent compels the conclusion that Mr. 11 Smith’s juvenile conviction does not qualify as a predicate offense under § 922(g)(1). 12 Under Washington’s juvenile sentencing system, “If the court concludes, and enters 13 reasons for its conclusion, that disposition within the standard range would effectuate a manifest 14 injustice the court shall impose a disposition outside the standard range.” RCW 13.40.160(2). 15 The statute defines “manifest injustice” as “a disposition that would either impose an excessive 16 penalty on the juvenile or would impose a serious, and clear danger to society in light of the 17 purposes of this chapter.”6 RCW 13.40.020(19). In State v. B.O.J., 194 Wn.2d 314 (2019), the 18 6 The purposes of Ch. 13.40 RCW are: 19 (a) Protect the citizenry from criminal behavior; (b) Provide for determining whether 20 accused juveniles have committed offenses as defined by this chapter; (c) Make the 21 juvenile offender accountable for his or her criminal behavior; (d) Provide for punishment commensurate with the age, crime, and criminal history of the juvenile 22 offender; (e) Provide due process for juveniles alleged to have committed an offense; (f) Provide for the rehabilitation and reintegration of offenders; (g) Provide necessary 23 treatment, supervision, and custody for juvenile offenders; (h) Provide for the handling of 24 juvenile offenders by communities whenever consistent with public safety; (i) Provide for restitution to victims of crime; (j) Develop effective standards and goals for the operation, 25 funding, and evaluation of all components of the juvenile justice system and related services at the state and local levels; (k) Provide for a clear policy to determine what 26 types of offenders shall receive punishment, treatment, or both, and to determine the 27 jurisdictional limitations of the courts, institutions, and community services; (l) Provide opportunities for victim participation in juvenile justice process, including court hearings 28 1 Washington Supreme Court reviewed a trial court’s imposition of a manifest injustice 2 disposition. The trial court imposed the manifest injustice disposition in question because the 3 standard range “would not [have] allow[ed] sufficient time for [B.O.J.] to complete the 4 [substance abuse and mental health treatment] she need[ed], nor would she [have] engage[d] 5 with such services in the community” and it “would [have] be[en] too lenient in light of 6 [B.O.J.’s] uncharged criminal conduct, dismissed charges, and failures to comply with court 7 orders.” B.O.J., 194 Wn.2d at 319. The Washington Supreme Court rejected the justification 8 related to the defendant’s need for treatment. Id. at 325–28. In so doing, the Washington 9 Supreme Court concluded that not all of the statutorily enumerated purposes would be relevant 10 to the manifest injustice determination.7 Id. at 324. The Washington Supreme Court narrowly 11 read the “sole basis” for a manifest injustice disposition upward to be “a serious, and clear 12 danger to society.” Id. at 328. In contrast to the adult sentencing system at issue in Asuncion, 13 where a judge could conduct “an open-ended inquiry into any potential circumstance,” 14 Asuncion, 974 F.3d at 923, the juvenile sentencing system in Washington does not involve such 15 broad discretion. 16 17 18 Constitution, the victim bill of rights, is fully observed; and (m) Encourage the parents, guardian, or custodian of the juvenile to actively participate in the juvenile justice 19 process. 20 RCW 13.40.010(2). 21 7 The government relies on two unpublished Washington Court of Appeals decisions for its 22 argument that Washington courts enjoy “considerable latitude” in the facts and circumstances to consider in determining whether manifest injustice exists. Dkt. # 20. These decisions lack persuasive 23 force because they predate B.O.J. and their reasoning is in tension with the Washington Supreme Court’s conclusion that not all of the statutorily enumerated purposes, including the purpose of 24 providing necessary treatment, would always be relevant to the “threshold determination of whether a 25 manifest injustice disposition is appropriate.” B.O.J., 194 Wn.2d at 328; see State v. N.A.J., 174 Wn. App. 1073, 2013 WL 1960341, at *1 (May 13, 2013) (unpublished) (interpreting the Juvenile Justice 26 Act to “call on juvenile courts to consider the overall purposes of the act when making a manifest injustice determination”); State v. Shurtz, 199 Wn. App. 1042, 2017 WL 2791344, at *3–4 (June 27, 27 2017) (unpublished) (interpreting the Juvenile Justice Act to permit a manifest injustice determination to 28 rest on a juvenile’s need for treatment). 1 Moreover, while McAdory did not address the difference between the juvenile and adult 2 sentencing systems directly, the Ninth Circuit’s holding that none of the petitioner’s prior 3 convictions—which included juvenile convictions—exposed him to sentencing ranges in excess 4 of a year, McAdory, 935 F.3d at 841, 844, strongly suggests that the Ninth Circuit considers the 5 juvenile sentencing system to be more like the newer adult system than the former adult system. 6 This Court will therefore follow the Ninth Circuit’s lead. Here, the predicate offense at issue is 7 Mr. Smith’s 2003 juvenile disposition for second degree burglary, which was subject to a 8 standard sentencing range of 0–30 days in detention under RCW 13.40.0357 (juvenile offender 9 sentencing standards). Dkts. # 1 at 10, # 9 at 7. This offense did not expose Mr. Smith to a 10 sentence range in excess of a year and was therefore not “punishable by imprisonment for a term 11 exceeding one year” for purposes of § 922(g)(1). Accordingly, Mr. Smith could not, as a legal 12 matter, have violated § 922(g)(1). 13 B. Procedural Default 14 The parties agree that Mr. Smith’s petition is procedurally defaulted because he did not 15 challenge the voluntariness or intelligence of his plea at sentencing or on direct appeal. See 16 Dkts. # 15 at 2, # 16 at 1; Bousley v. United States, 523 U.S. 614, 621 (1988) (“[T]he 17 voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first 18 challenged on direct review.”). A petitioner may overcome procedural default, however, by 19 demonstrating “cause” and “actual prejudice” or that he is “actually innocent.” Id. at 615. One 20 way for a petitioner to “demonstrate actual innocence is to show in light of subsequent case law 21 that he cannot, as a legal matter, have committed the alleged crime.” Vosgien v. Persson, 742 22 F.3d 1131, 1134 (9th Cir. 2014). Because Mr. Smith could not have violated § 922(g)(1) for the 23 reasons explained above, procedural default is excused and he may pursue his Rehaif claim. See 24 Nair v. United States, No. C19-1751 JLR, 2020 WL1515627, at *3 (W.D. Wash. March 30, 25 2020) (reaching the same conclusion for a petitioner in a factually similar case). 26 27 28 1 C. Rehaif Claim 2 This Court finds another case from this District persuasive regarding the Rehaif claim 3 analysis: Nair v. United States, No. C19-1751 JLR, 2020 WL1515627 (W.D. Wash. March 30, 4 2020). Nair summarized Rehaif’s significance for proving violations of 18 U.S.C. § 922(g)(1): 5 In Rehaif, the Supreme Court overruled longstanding precedent from the Ninth Circuit—and every other circuit that had addressed the issue—concerning the 6 scope of 18 U.S.C. § 922(g)(1) . . . . Before Rehaif, the Government could secure a 7 felon-in-possession conviction by proving that the defendant knowingly possessed a firearm, even if the defendant did not know that he had been convicted of a 8 felony—defined under the statute as a crime punishable by more than one year in 9 prison—or was otherwise within a category of persons who cannot legally possess a firearm . . . . After the Supreme Court’s decision in Rehaif, the Government must 10 “prove both that the defendant knew he possessed a firearm and that he knew he 11 belonged to the relevant category of persons barred from possessing a firearm.” 12 Nair, 2020 WL1515627 at *3. Mr. Smith, like the petitioner in Nair, pleaded guilty to a violation 13 of § 922(g)(1) before the Supreme Court decided Rehaif, which meant that “no one involved” in 14 the “criminal proceedings correctly understood the elements of the offense,” and no one could 15 have informed a criminal defendant that a violation of § 922(g)(1) required proof that the 16 defendant “knew he had been convicted of a crime punishable by more than one year at the time 17 he possessed the ammunition.” Id. at *4. Because Mr. Smith was not advised of the true nature 18 of the charge, his guilty plea is “constitutionally invalid.” Bousley, 523 U.S. at 619; see Nair, 19 2020 WL 1515627, at *4–5 (discussing Bousley and Henderson v. Morgan, 426 U.S. 637 20 (1976)). The government argues that Mr. Smith knew that he was prohibited from possessing 21 firearms as the result of his juvenile conviction, Dkt. # 15, but that knowledge is not the critical 22 issue. The crux of the matter is whether Mr. Smith knew he had been convicted of a crime 23 “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1); Nair, 2020 24 WL 1515627, at *5 n.7. Because Mr. Smith was actually innocent of the offense, and there is no 25 evidence that Mr. Smith was informed of the § 922(g)(1) element concerning his knowledge that 26 he had been convicted of a qualifying predicate offense, the Court concludes that the 27 28 1 constitutional violation at issue was not harmless,8 and the Court grants Mr. Smith’s § 2255 2 petition and vacates his conviction and sentence. 3 IV. CONCLUSION 4 Based on the foregoing analysis, the Court GRANTS both Mr. Smith’s motion to amend 5 his § 2255 petition (Dkt. # 13) and Mr. Smith’s § 2255 petition to vacate, set aside, or correct a 6 sentence (Dkt. # 1).9 The Court DENIES the government’s motion to dismiss the § 2255 petition 7 (Dkt. # 9). In addition, the Court ORDERS that: 8 (1) The judgment imposed on May 11, 2018, in CR18-12-RSL (W.D. Wash.), Dkt. # 31, 9 is hereby VACATED; 10 (2) The plea of guilty entered on January 30, 2018, in CR18-12-RSL (W.D. Wash.), Dkt. 11 # 19, is hereby WITHDRAWN; 12 (3) The indictment in CR18-12-RSL (W.D. Wash.), Dkt. # 11, is DISMISSED WITH 13 PREJUDICE. 14 15 16 17 18 19 8 The government argues that Nair incorrectly applied the Henderson harmless error standard when it should have applied the standard from Brecht v. Abrahamson, 507 U.S. 619 (1993). Dkt. # 15 at 20 10–11. While the government is correct that the Ninth Circuit applies the Brecht standard to claims 21 made in § 2255 petitions, the Brecht standard involves demonstrating “substantial and injurious effect or influence in determining the jury’s verdict,” United States v. Montalvo, 331 F.3d 1052, 1057–58 (9th 22 Cir. 2003 (citing Brecht, 507 U.S. 619, 623 (1993)) (emphasis added), and Mr. Smith’s claim concerns harmlessness in a guilty plea case, not in a jury verdict case. Because Henderson speaks to the harmless 23 error standard for guilty plea cases, the Court finds Nair’s reliance on Henderson persuasive. 24 Additionally, the unpublished Ninth Circuit case the government cited in its attempt to undermine Nair is not binding, and in any event, the case only vaguely concludes that a “comparable standard” to Brecht 25 “is applicable to errors in plea allocution.” See Grantham v. Fakhoury, 472 F. App’x 443, 445 (9th Cir. 26 2012) (mem.); Ninth Cir. Rule 36-3 (permitting citation of unpublished decisions issued after January 1, 2007, but stating that such decisions are generally not precedential). 27 9 As addressed above, the Court also GRANTS the government’s request for an extension of 28 time (Dkt. # 7). 1 DATED this 25th day of March, 2021. 2 3 A 4 Robert S. Lasnik 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28