Mitchell v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MAURICE MITCHELL,

Petitioner,

v. Case No.: 3:19-cv-929-TJC-PDB

3:16-cr-57-TJC-PDB

UNITED STATES OF AMERICA,

Respondent.

ORDER

This case is before the Court on Petitioner Maurice Mitchell’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1).1

A jury convicted Petitioner of one count of possession of a firearm by a convicted

felon, for which the Court sentenced him to a term of 120 months in prison.

(Crim. Doc. 82, Judgment). Petitioner argues that the evidence was insufficient

to prove each element of the offense beyond a reasonable doubt and that his

conviction violates Rehaif v. United States, 139 S. Ct. 2191 (2019). The United

States filed a response in opposition. (Civ. Doc. 4).

After the United States filed its response, the Court appointed counsel for

Petitioner to file a reply brief on the Rehaif claim. (Civ. Docs. 5, 8). Counsel for

1 Citations to the record in the criminal case, United States v. Mitchell, No. 3:16-cr-57-

TJC-PDB, will be denoted “Crim. Doc. __.” Citations to the record in the civil § 2255 case, No.

3:19-cv-929-TJC-PDB, will be denoted “Civ. Doc. __.”

Petitioner filed a reply brief on January 29, 2020 (Civ. Doc. 17), to which the

United States filed a sur-reply (Civ. Doc. 18). Petitioner then filed a pro se

supplement (Civ. Doc. 19), in which he contends that Greer v. United States,

141 S. Ct. 2090 (2021), supports his claim of Rehaif error. Thus, the case is ripe

for a decision.

Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the

Court has determined that an evidentiary hearing is not necessary to decide the

matter. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an

evidentiary hearing is not required when the petitioner asserts allegations that

are affirmatively contradicted by the record or patently frivolous, or if in

assuming that the facts he alleges are true, he still would not be entitled to any

relief). For the reasons below, Petitioner’s § 2255 Motion is due to be denied.

I. Background

On April 28, 2016, a federal grand jury returned an indictment charging

Petitioner with one count of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1, Indictment). Petitioner pled not

guilty to the charge.

The case proceeded to a jury trial in February 2017, where the following

facts were established.

An officer with the Jacksonville Sheriff’s Office was on patrol when he

noticed a gold minivan driving suspiciously. Suspecting that the driver

was impaired, the officer followed the van to initiate a traffic stop. The

officer activated his vehicle’s blue lights to alert the driver of the van to

pull over, but the driver did not stop. Instead, the driver sped up, running

through several stop signs. The officer activated his emergency sirens; a

high speed chase ensued. Another officer joined the pursuit. The driver

of the van eventually lost control, hit a grassy median, and crashed into

a grove of trees.

As the officer approached the van, he saw Mitchell get out of the driver’s

side of the van and run away. He eventually found Mitchell hiding

underneath a black SUV in a nearby parking lot. Mitchell smelled like

alcohol and burnt marijuana. Meanwhile, other officers inventoried the

van. They found a loaded firearm, which had been manufactured in

California, on the van’s passenger-side dashboard.

United States v. Mitchell, 741 F. App’x 771, 773 (11th Cir. 2018). The jury found

Petitioner guilty as charged in the indictment. (Crim. Doc. 75, Verdict).

The case proceeded to sentencing on May 31, 2017. (Crim. Doc. 95,

Sentencing Transcript). The Court calculated Petitioner’s sentencing guidelines

range to be 151-to-188 months of imprisonment, which became 120 months

because of the statutory maximum. (Crim. Doc. 95 at 63; Crim. Doc. 78,

Presentence Investigation Report [PSR] ¶ 98). The Court sentenced Petitioner

to a term of 120 months in prison, emphasizing that Petitioner had driven under

the influence and with a firearm, leading a high-speed chase that endangered

his own life and the lives of others. (Crim. Doc. 95 at 78–87). The Court also

noted that Petitioner’s criminal history included two separate five-year terms

of imprisonment and that his § 922(g) offense occurred only three months after

his release from the second five-year term. (Id. at 81–82).

Petitioner appealed his conviction and sentence. He argued that 18 U.S.C.

§ 922(g) is unconstitutional, both facially and as applied to him, because the

statute exceeds Congress’ authority under the Commerce Clause, and that the

Court erred by applying a guidelines enhancement for possessing a firearm in

connection with a felony offense. Mitchell, 741 F. App’x at 774. The Eleventh

Circuit rejected Petitioner’s arguments and affirmed his conviction and

sentence. Id. at 774–76.

Petitioner then filed a petition for a writ of certiorari, which the Supreme

Court denied on October 1, 2018. Mitchell v. United States, 139 S. Ct. 282

(2018). These § 2255 proceedings timely followed.

II. Discussion

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,

set aside, or correct his sentence. Section 2255 authorizes a district court to

grant relief on four grounds: (1) the sentence was imposed in violation of the

Constitution or laws of the United States; (2) the court lacked jurisdiction to

impose the sentence; (3) the sentence exceeds the maximum authorized by law;

or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a).

Only jurisdictional claims, constitutional claims, and claims of error that are so

fundamental as to cause a complete miscarriage of justice will warrant relief

through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86

(1979); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman v. United States, 871 F.3d 1215, 1221–23 (11th Cir. 2017). If “‘the

evidence does not clearly explain what happened … the party with the burden

loses.’” Beeman, 871 F.3d at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357

(11th Cir. 2001)). A § 2255 movant will not be entitled to relief, or an evidentiary

hearing, “when his claims are merely ‘conclusory allegations unsupported by

specifics’ or ‘contentions that in the face of the record are wholly incredible.’”

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (citation omitted).

A. Ground One

Petitioner argues that his sentence is unconstitutional because his

conviction “does not rest upon proof beyond a reasonable doubt that [he is]

guilty of every element of” a violation of 18 U.S.C. § 922(g).2 (Civ. Doc. 1 at 4).

He claims to be “actually innocent” of the offense “because non[e] of the evidence

presented during [the] trial proves beyond a reasonable doubt that [he] actually

or constructively possessed the firearm that was recovered from the

abandon[ed] vehicle.” (Id.). Further, Petitioner contends that none of the police

officers’ testimonies established that (1) he had knowledge of the firearm’s

2 Section 922(g)(1) makes it “unlawful for any person ... who has been convicted in any

court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in

or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). Section 924(a)(2)

provides that “[w]hoever knowingly violates subsection … (g) … of section 922 shall be fined

as provided in this title, imprisoned not more than 10 years, or both.” Id., § 924(a)(2).

presence in the vehicle or (2) that he intended to exercise dominion and control

over the firearm that was in the vehicle. (Id.).

Petitioner’s claim is a challenge to the sufficiency of the evidence. This

claim is procedurally defaulted because Petitioner could have challenged the

sufficiency of the evidence on direct appeal but he failed to do so. “Courts have

long and consistently affirmed that a collateral challenge, such as a § 2255

motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365

F.3d 1225, 1232 (11th Cir. 2004) (citing United States v. Frady, 456 U.S. 152,

165 (1982)). “Under the procedural default rule, ‘a defendant generally must

advance an available challenge to a criminal conviction or sentence on direct

appeal or else the defendant is barred from presenting that claim in a § 2255

proceeding.’” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011)

(quoting Lynn, 365 F.3d at 1234). “This rule generally applies to all claims,

including constitutional claims.” Lynn, 365 F.3d at 1234 (citing Reed v. Farley,

512 U.S. 339, 354 (1994)).

A petitioner can avoid a procedural default by showing either (1) cause

for and actual prejudice from the default, or (2) that “a constitutional violation

has probably resulted in the conviction of one who is actually innocent.” Id.

(internal quotation marks and citation omitted). With respect to “cause and

prejudice,” “to show cause for procedural default, [a petitioner] must show that

some objective factor external to the defense prevented [him] or his counsel from

raising his claims on direct appeal and that this factor cannot be fairly

attributable to [the petitioner’s] own conduct.” Id. at 1235 (citing Smith v.

Jones, 256 F.3d 1135, 1145 (11th Cir. 2001)). The petitioner must also show that

“actual prejudice” resulted from the claim not being raised on direct appeal. Id.

at 1234 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). The second

exception, actual innocence, “is exceedingly narrow in scope as it concerns a

petitioner’s ‘actual’ innocence rather than his ‘legal’ innocence.” Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (citations omitted). “To show

actual innocence of the crime of conviction, a movant ‘must show that it is more

likely than not that no reasonable juror would have found [him] guilty beyond

a reasonable doubt’ in light of the new evidence of innocence.” McKay, 657 F.3d

at 1196 (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed.

2d 808 (1995)). The actual innocence exception is supposed to “remain ‘rare’ and

… only be applied in the ‘extraordinary case.’” Schlup, 513 U.S. at 321.

Petitioner fails to allege facts sufficient to establish cause for and actual

prejudice resulting from the default. He states that he did not raise the

sufficiency-of-the-evidence claim on direct appeal “because [his] attorney did

not raise it.” (Civ. Doc. 1 at 4). Although the ineffective assistance of appellate

counsel may constitute cause to excuse a procedural default, United States v.

Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000), Petitioner does not allege any

facts showing that appellate counsel’s failure to raise the issue was objectively

unreasonable or that, had counsel raised the issue, there is a reasonable

probability the outcome of the appeal would have been different, see Dell v.

United States, 710 F.3d 1267, 1273 (11th Cir. 2013).

Nor does Petitioner allege facts sufficient to satisfy the actual innocence

exception. Although Petitioner claims to be “actually innocent” of the conviction,

he does not point to any “new evidence of innocence” in light of which “it is more

likely than not that no reasonable juror would have found [him] guilty beyond

a reasonable doubt.” McKay, 657 F.3d at 1196 (quoting Schlup, 513 U.S. at 327).

Rather, he simply argues that the jury got it wrong. “Consequently, he has

provided no basis upon which a court can second-guess the jury’s verdict.”

Sibley v. Culliver, 377 F.3d 1196, 1206 (11th Cir. 2004). Because Petitioner has

not demonstrated that he can overcome the procedural default, he is not entitled

to relief on his allegations in Ground One.

Petitioner’s claim lacks merit in any event. In reviewing a challenge to

the sufficiency of the evidence, “the Court views the evidence in the light most

favorable to the government,” finding for the defendant “only if no reasonable

trier of fact could have found guilt beyond a reasonable doubt.” United States

v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (citation omitted). To prove a

violation of 18 U.S.C. § 922(g)(1), “the government must prove three elements:

(1) the defendant knowingly was a convicted felon; (2) the defendant was in

knowing possession of a firearm; and (3) the firearm was in or affected

interstate commerce.” United States v. Brown, 852 F. App’x 524, 530 (11th Cir.

2021) (citations omitted).

In Ground One, Petitioner challenges the sufficiency of the evidence only

as to the second element: knowing possession of a firearm.

To satisfy the “knowing” requirement of § 922(g)(1), the government

must prove that the defendant had actual or constructive possession of a

firearm. See United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.

2004). “To prove actual possession the evidence must show that the

defendant either had physical possession of or personal dominion over

the [firearm].” United States v. Leonard, 138 F.3d 906, 909 (11th Cir.

1998); see also United States v. Oscar, 877 F.3d 1270, 1280 (11th Cir.

2017) (noting that the government must also show that the defendant

“‘knowingly’ possess[ed] the firearm” to establish actual possession). “To

establish constructive possession, the government must show that the

defendant exercised ownership, dominion, or control over the firearm or

the [premises] concealing the firearm.” United States v. Gunn, 369 F.3d

1229, 1234 (11th Cir. 2004). Constructive possession can also be

established by showing that the defendant had “the power and intention

to exercise dominion or control.” Id. at 1235; United States v. Derose, 74

F.3d 1177, 1185 (11th Cir. 1996) (“Constructive possession exists when a

person ‘has knowledge of the thing possessed coupled with the ability to

maintain control over it or reduce it to his physical possession even

though he does not have actual possession.’”). Thus, whether possession

is actual or constructive, a defendant must have known that what

he possessed was a firearm in order to establish guilt under § 922(g)(1).

United States v. Vereen, 920 F.3d 1300, 1310 (11th Cir. 2019), cert. denied, 140

S. Ct. 1273 (2020).

The evidence at trial was sufficient to permit a reasonable trier of fact to

conclude, beyond a reasonable doubt, that Petitioner knowingly possessed a

firearm. The bulk of the government’s evidence came from the testimony of two

police officers: Officer Brandon Alwin and Officer Matthew Rodriguez. Officer

Alwin testified that he was patrolling Jacksonville’s westside when he saw a

gold minivan driving erratically through an intersection. (Crim. Doc. 93, Trial

Tr. Vol. I at 39–43). The minivan led Office Alwin on a chase before it crashed

into some trees. (Id. at 51–65). Officer Alwin saw an individual who matched

Petitioner’s appearance exit the vehicle and flee on foot. (Id. at 66, 91, 100–01).

Only the minivan’s driver-side door was open, and only the minivan’s driver-

side airbag was deployed. (Id. at 69–70, 204). Officer Alwin did not witness

anyone else drive or exit the vehicle. (Id. at 43, 47, 68). When officers inspected

the minivan, they found a pistol laying on top of the passenger-side dashboard.

(Id. at 103, 161). Petitioner’s DNA matched DNA recovered from a solo cup on

the minivan’s floorboard. (Crim. Doc. 94, Trial Tr. Vol. II at 58–65).3 Officer

Rodriguez testified that he pursued Petitioner on foot. (Crim. Doc. 93 at 148–

53). Officer Rodriguez and Officer Alwin eventually found Petitioner hiding

underneath an SUV and apprehended him. (Id. at 155–61).

This evidence was sufficient to allow a reasonable trier of fact to conclude,

beyond a reasonable doubt, that Petitioner knowingly possessed the firearm.

The police found a firearm on the dashboard of the wrecked minivan, and

Petitioner was the only person seen exiting the minivan after it crashed.

Petitioner’s DNA was present on a cup in the minivan as well. The gun being

on the dashboard, the jury reasonably could have found that Petitioner had the

3 The government’s DNA analyst found other mixtures of DNA in the minivan but could

not draw any firm conclusions about the source. (Id. at 65–69)

gun within his immediate reach or control and that he knew about its presence.

“The jury is free to choose among reasonable constructions of the evidence, and

[the Court] must accept a jury’s inferences and determinations of witness

credibility.” United States v. Williams, 390 F.3d 1319, 1323 (11th Cir. 2004).

Petitioner’s challenge to the sufficiency of the evidence is procedurally

defaulted and lacks merit. As such, he is not entitled to relief on Ground One.

B. Ground Two: Rehaif Error

Petitioner contends that, based on the Supreme Court’s decision in Rehaif

v. United States, his conviction for violating § 922(g)(1) violates his rights under

the Fifth and Sixth Amendments. (Civ. Doc. 1 at 5; Civ. Doc. 17). The Supreme

Court decided Rehaif v. United States the year after Petitioner’s conviction and

sentence became final. In Rehaif, the Supreme Court held that to convict a

defendant for unlawful possession of a firearm, the government must prove not

only “that the defendant knew he possessed a firearm,” but also that he knew

he belonged to one of the nine categories of persons that § 922(g) prohibits from

possessing a firearm. 139 S. Ct. at 2194, 2200. The Supreme Court reasoned

that since § 924(a)(2) provides that anyone who “knowingly violates” § 922(g)

will be fined or imprisoned for up to 10 years, the word “knowingly” applies to

the status element as well as the possession element. Rehaif, 139 S. Ct. at 2194,

2195–96. In so holding, the Supreme Court overturned the law of the Eleventh

Circuit (and several others), which had held that the government did not have

to prove the defendant knew of his prohibited status. See, e.g., United States v.

Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997).

Petitioner argues that the government failed to prove each element of the

offense beyond a reasonable doubt because the jury instructions, contrary to

Rehaif, did not require the government to prove that Petitioner knew he was a

convicted felon. Likewise, Petitioner argues that the indictment was defective

because it failed to allege that Petitioner knew of his status as a felon. In the

reply brief, filed through appointed counsel, Petitioner argues that the Rehaif

errors in this case were structural because they infected the entire proceedings,

such that he is entitled to relief without proving prejudice. (Civ. Doc. 17 at 3–

5). Alternatively, if the Rehaif errors are subject to harmless error review,

Petitioner argues that the errors were not harmless. (Id. at 5–6). The United

States counters that Petitioner procedurally defaulted the Rehaif claim and,

alternatively, that the claim lacks merit. (Civ. Doc. 4 at 8–16, 20–22; Civ. Doc.

18). The United States argues that Rehaif errors are subject to harmless error

review and, under the facts of this case, they were harmless.

The Court need not decide whether Petitioner procedurally defaulted his

Rehaif claim or whether he can overcome the default. Even if the claim were

not defaulted, it fails under the harmless error standard applicable on collateral

review. See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); see also Ross

v. United States, 289 F.3d 677, 682 (11th Cir. 2002) (“In this Circuit, we apply

the Brecht harmless error standard to the habeas review of federal court

convictions, as well as state court convictions.” (citation omitted)).

On collateral review, the harmless error standard mandates that “relief

is proper only if the ... court has grave doubt about whether a trial error

of federal law had substantial and injurious effect or influence in

determining the jury’s verdict. There must be more than a reasonable

possibility that the error was harmful.” Davis v. Ayala, 576 U.S. 257,

267–68, 135 S. Ct. 2187, 192 L.Ed.2d 323 (2015) (internal quotation

marks and citations omitted); Ross v. United States, 289 F.3d 677, 682

(11th Cir. 2002) (per curiam) (applying this standard to a § 2255 motion).

Put another way, the court may order relief only if the error “resulted in

actual prejudice.” [Brecht, 507 U.S. at 637] (internal quotation marks

and citation omitted).

Granda v. United States, 990 F.3d 1272, 1292 (11th Cir. 2021). Notably, “[t]he

burden of demonstrating in a collateral proceeding that an [error] violated the

petitioner’s due process rights is ‘greater than the showing required to establish

plain error on direct appeal.’” Galvan v. Cockrell, 293 F.3d 760, 765 (5th Cir.

2002) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); United States v.

Frady, 456 U.S. 152, 166 (1982). Therefore, if a claim would fail under plain

error review, it would necessarily fail under Brecht’s harmless error standard.

Here, the indictment charged that Petitioner “did knowingly possess, in

and affecting commerce, a firearm, that is, a Jimenez Arms model J.A. 380

pistol with serial number 024236, after having previously been convicted of a

crime punishable by imprisonment for a term exceeding one year.” (Crim. Doc.

1 at 1). The indictment cited 18 U.S.C. § 922(g)(1) and § 924(e), but it did not

allege that Petitioner knew he was a felon. As a result, the indictment contained

a Rehaif error.

Likewise, the jury instructions, consistent with the law at the time, did

not require the jury to find that Petitioner knew he was a convicted felon when

he possessed the firearm. (Crim. Doc. 74, Jury Instructions at 8; Crim. Doc. 94

at 173–74). Instead, the Court instructed the jury:

It’s a federal crime for anyone who has been convicted of a felony

offense to possess a firearm in or affecting interstate or foreign

commerce.

The defendant can be found guilty of this crime only if all of the

following facts are proved beyond a reasonable doubt:

No. 1: The defendant knowingly possessed a firearm in or affecting

interstate or foreign commerce; and

No. 2: Before possessing the firearm, the defendant had been

convicted of a felony, a crime punishable by imprisonment for more

than one year.

…

The word “knowingly” means than an act was done voluntarily and

intentionally and not because of a mistake or by accident.

(Crim. Doc. 94 at 173–74). Because the instructions did not require the jury to

find that Petitioner knew he was a felon, they contained a Rehaif error as well.

Nevertheless, contrary to Petitioner’s arguments, a Rehaif error is not a

structural error and does not warrant a presumption of prejudice. The Supreme

Court and the Eleventh Circuit have clarified that Rehaif errors – whether in

the indictment, the jury instructions, or a plea colloquy – are nonstructural

errors subject to plain error review on direct appeal (if unpreserved) or harmless

error review (if preserved). Greer v. United States, 141 S. Ct. 2090, 2099–2100

(2021); United States v. Leonard, 4 F.4th 1134, 1144 (11th Cir. 2021).4 The

Supreme Court also held that in determining whether a Rehaif error affected a

defendant’s substantial rights under plain error review, a court may examine

the entire record, not just the trial record. Greer, 141 S. Ct. at 2098; see also

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (“As the reviewing

court[, we] may consult the whole record when considering the effect of any

error on [Reed’s] substantial rights.” (quotation marks and citation omitted)).

Petitioner argues that the indictment failed to give notice of the elements

because it did not allege that he knew he was a felon. The Eleventh Circuit has

held, on similar facts, that such a defect in the indictment did not affect the

defendant’s substantial rights under plain error review. See, e.g., United States

v. Innocent, 977 F.3d 1077, 1082–84 (11th Cir. 2020); Reed, 941 F.3d at 1020–

22. To obtain relief on collateral review, Petitioner must show “more than a

reasonable possibility that the error was harmful.” Granda, 990 F.3d at 1292.

4 “Under the plain error standard, ‘there must be (1) error, (2) that is plain, and (3) that

affects [the defendant’s] substantial rights. If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.’” United States v.

Moore, 954 F.3d 1322, 1329 (11th Cir. 2020) (citation omitted).

Under the more defendant-friendly harmless error standard, which applies to errors

that were preserved in the trial court, “the government bears the burden of showing that an

error was ‘harmless beyond a reasonable doubt.’” Leonard, 4 F.4th at 1144 (quoting Chapman

v. California, 386 U.S. 18, 24 (1967)).

But Petitioner cannot even “prov[e] a reasonable probability that he would have

obtained a different result but for” the indictment’s omission “because

circumstantial evidence establishes that [he] knew of his felon status.”

Innocent, 977 F.3d at 1082 (internal citation omitted).

Petitioner does not seriously contend that, had the indictment alleged

that he knew he was a felon, he could and would have argued to the jury that

he was unaware he was a felon. To begin with, Petitioner was a convicted felon

and he stipulated that he was. (Crim. Doc. 93 at 214–15). “If a person is a felon,

he ordinarily knows he is a felon,” a “simple truth [that] is not lost on juries” or

defendants. Greer, 141 S. Ct. at 2097. Second, before he possessed a firearm in

this case, Petitioner had seven prior felony convictions from three prior

prosecutions: a felony conviction in 2004 for committing battery in a detention

facility; felony convictions in 2005 for two counts of selling or delivering cocaine;

and felony convictions in 2011 for one count of selling, delivering, or purchasing

cocaine within 1,000 feet of a church or a convenience business, one count of

possessing cocaine, and two counts of selling cannabis. (Crim. Doc. 1 at 1–2;

PSR ¶¶ 2, 15, 42, 43, 51); (see also Civ. Doc. 4-1, Gov’t Exhibit A). “[S]omeone

who has been convicted of felonies repeatedly is especially likely to know he is

a felon.” Innocent, 977 F.3d at 1082 (citation omitted). Third, “serving more

than a year in prison provides circumstantial evidence of knowledge of felon

status.” Id. at 1083 (citations omitted). Petitioner served two separate five-year

terms of imprisonment: one for his 2005 drug convictions (PSR ¶ 43) and

another for his 2011 drug convictions (id. ¶ 51). As the Court noted at

sentencing, Petitioner committed the instant offense only three months after he

was released from his second five-year term in prison. (Crim. Doc. 95 at 82).

Fourth, Petitioner “behaved in a way that suggested he knew he was not

allowed to possess a gun.” Innocent, 977 F.3d at 1083. The trial evidence showed

that when a police officer attempted to pull over Petitioner, he led police on a

high speed chase and, after crashing the minivan, fled on foot. After Petitioner

was arrested, he tried during recorded jail calls to pay a juvenile to tell law

enforcement that the firearm did not belong to him and that Petitioner was not

the one driving the minivan. (PSR ¶ 18). Petitioner also called an individual to

place the name of a potential government witness on Facebook. (Id. ¶ 19). For

his post-arrest conduct, Petitioner received a guidelines enhancement for

obstruction of justice. (Id. ¶¶ 17–20, 23–32).

Although Petitioner speculates that he could have “called witnesses to

testify concerning Petitioner’s poor memory, lack of understanding or

misunderstanding of the nature or length of Petitioner’s prior felony

convictions, and Petitioner’s low IQ and mental processing,” (Civ. Doc. 17 at 6),

he develops no such evidence to support his claim. Indeed, Petitioner himself

does not allege that he did not know he was a convicted felon. (Civ. Doc. 1 at 5).

And the record is devoid of any indication that Petitioner, who has a GED and

had completed or enrolled in college-level courses (PSR ¶¶ 90–92), had such a

memory defect that he would have forgotten about spending five years in prison

only three months after being released from custody. The circumstantial

evidence that Petitioner knew he was not supposed to have a gun was

overwhelming. Petitioner cannot show plain error, let alone “actual prejudice,”

based on the indictment’s failure to allege that he knew he was a felon.

The same analysis applies to the jury instructions. Although the

instructions did not require the jury to find that Petitioner knew about his

status as a felon, the error did not have a substantial and injurious effect on the

outcome because “it is inconceivable that [Petitioner] did not know that he was

a felon when he possessed the gun.” United States v. McClellan, 958 F.3d 1110,

1119 (11th Cir. 2020). Although many of the facts discussed above were not

presented to the jury – such as the number and nature of Petitioner’s prior

felony convictions and how much time he had served in prison – that is only

because Petitioner stipulated he was a felon pursuant to Old Chief v. United

States, 519 U.S. 172, 191–92 (1997), thereby precluding the government from

introducing evidence of Petitioner’s prior felonies.

But that does not mean that the government would have been similarly

prohibited had [Petitioner] actually contested the knowledge-of-status

element at trial. [Petitioner] has multiple prior felonies, for which he

served approximately ten years in prison. If [Petitioner were] retried, he

would not be entitled to have simply a different jury instruction but with

the same evidence that was presented at trial. He would instead be

confronted with the evidence of his knowledge of his felonies.

McLellan, 958 F.3d at 1119. Such evidence would have included Petitioner’s

seven prior felony convictions, his two five-year terms in prison, the fact that

Petitioner was released from prison only three months before he committed the

instant offense, and all of Petitioner’s actions that reflected an awareness that

he was not supposed to have a gun. Where, as here, “the record clearly

demonstrates that it would be implausible for the defendant to not have been

aware of his felony status, a Rehaif error does not affect his substantial rights.”

Id. (citing Reed, 941 F.3d at 1022).

In his pro se supplement (Civ. Doc. 19), Petitioner argues that the

Supreme Court’s decision in Greer, 141 S. Ct. 2090, supports his claim for

relief.5 But Greer does the opposite. There, the Supreme Court sustained the

conviction of a defendant, Gregory Greer, for violating § 922(g)(1) even though

the district court did not instruct the jury about the need to find that Greer

knew he was a felon. 141 S. Ct. at 2095–96. The Court held that “[a] Rehaif

error in jury instructions is … not structural” and “fit[s] comfortably within the

‘general rule’ that ‘a constitutional error does not automatically require reversal

of a conviction.’” Id. at 2100 (quoting Arizona v. Fulminante, 499 U.S. 279, 306

(1991)). The Court further held that, in reviewing an unpreserved Rehaif error

in the jury instructions, a court may consult the entire record, not just the

5 Although a party represented by counsel may not file documents pro se, see Rule

2.02(b)(3), M.D. Fla. Local Rules, the Court considers the pro se supplement nonetheless.

evidence at trial, in determining whether that error affected the defendant’s

substantial rights under the plain error standard. Id. at 2098. The “entire

record” includes a defendant’s PSR. Id. And, as the Supreme Court noted

repeatedly, “common sense suggests [that] individuals who are convicted felons

ordinarily know that they are convicted felons.” Id. at 2095; see also id. at 2098.

The Court explained:

In a felon-in-possession case where the defendant was in fact a felon

when he possessed firearms, the defendant faces an uphill climb in trying

to satisfy the substantial-rights prong of the plain-error test based on an

argument that he did not know he was a felon. The reason is simple: If a

person is a felon, he ordinarily knows he is a felon. “Felony status is

simply not the kind of thing that one forgets.” 963 F.3d 420, 423 (CA4

2020) (Wilkinson, J., concurring in denial of reh’g en banc). That simple

truth is not lost upon juries. Thus, absent a reason to conclude otherwise,

a jury will usually find that a defendant knew he was a felon based on

the fact that he was a felon.

Id. at 2097 (emphasis in original).

The Supreme Court concluded that Greer had failed to carry his burden

of showing a “reasonable probability” that the outcome of trial would have been

different but for the Rehaif error in the jury instructions. Id. at 2097–98. The

Court pointed to the fact that Greer, like Petitioner, had multiple prior felony

convictions, which was “substantial evidence that [he] knew [he was a] felon[].”

Id. The Court also pointed to the fact that Greer, like Petitioner, never disputed

the fact of his prior felony convictions and he stipulated that he was a felon. Id.

at 2098. Further, Greer had failed to “argue[] or ma[k]e a representation that

[he] would have presented evidence at trial that [he] did not in fact know [he

was a felon] when [he] possessed [a] firearm[].” Id.

Here, as in Greer, Petitioner has made no showing that the Rehaif errors

in the indictment or the jury instructions affected the outcome. Under Supreme

Court and Eleventh Circuit precedent, the errors would not have risen to the

level of plain error, and therefore they necessarily do not justify relief on

collateral review. See Frady, 456 U.S. at 166 (“We reaffirm the well-settled

principle that to obtain collateral relief a prisoner must clear a significantly

higher hurdle than would exist [under plain error review] on direct appeal.”).

Relief on Ground Two is due to be denied.

C. Motion to Amend (Crim. Doc. 121)

Although not related to the § 2255 Motion itself, Petitioner filed a “Motion

to Amend” in the criminal case, in which he asks the Court to amend the PSR.

(Crim. Doc. 121). As a juvenile, Petitioner received a misdemeanor conviction

for an attempted lewd or lascivious act (PSR ¶ 34), which in turn caused the

BOP to apply a “Public Safety Factor” designation to Petitioner (see Crim. Doc.

121-1). Petitioner asks the Court “to amend his Juvenile Record out of his

P.S.R.” because his juvenile record is hindering his ability to participate in

vocational training and other programs offered by the BOP.

The Motion to Amend is due to be denied because the Court lacks

authority to amend the PSR at this stage. Under Federal Rule of Criminal

Procedure 32, “[w]ithin 14 days after receiving the presentence report, the

parties must state in writing any objections, including objections to material

information, sentencing guideline ranges, and policy statements contained in

or omitted from the report.” Fed. R. Crim. P. 32(f)(1). Here, the Probation Office

issued the initial PSR on April 26, 2017, and neither party objected within 14

days to the information about Petitioner’s juvenile record. The Court sentenced

Petitioner on May 31, 2017. Petitioner did not file the Motion to Amend until

July 2021, more than four years after sentencing. As such, the time to file

objections to the PSR has long since passed. Petitioner points the Court to no

authority that would allow it to alter or remove information from the PSR at

this point. Nevertheless, the Court will reiterate its recommendation to the

BOP that Petitioner enroll in the Residential Drug Abuse Treatment Program

(RDAP) and that he participate in any available educational and vocational

programs. (Crim. Doc. 82 at 2).

IV. Conclusion

Having considered each of Petitioner’s claims, and finding that none

warrants relief under 28 U.S.C. § 2255, it is hereby ORDERED:

1. Petitioner Maurice Mitchell’s Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1), as supplemented

(Civ. Docs. 17, 19), is DENIED.

2. Petitioner’s Motion to Amend the PSR (Crim. Doc. 121) is DENIED.

However, the Court continues to recommend to the BOP that

Petitioner be allowed to enroll in RDAP and to participate in any

available educational and vocational programs. (Crim. Doc. 82 at 2).

3. The Clerk shall enter judgment in favor of the United States and

against Petitioner, and close the file.

4. If Petitioner appeals this Order, the Court denies a certificate of

appealability (COA). Because this Court has determined that a COA

is not warranted, the Clerk shall terminate from the pending motions

report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 83rd day of

January, 2022.

a Gmothy Corrigan

YW. TIMOTHY J. CORRIGAN

United States District Judge

le 19

C:

Counsel of record

Pro se petitioner

Warden, Terminal Island FCI

8 The Court should issue a certificate of appealability only if Petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(¢)(2). To make

this substantial showing, Petitioner “must demonstrate that reasonable jurists would find the

district court's assessment of the constitutional claims debatable or wrong,” Tennard_v.

Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed further.” Miller- El]

v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)). Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

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