Richman v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ULYSSES RICHMAN,

Petitioner,

v. Case No: 2:19-cv-732-FtM-29NPM

Case No. 2:13-CR-127-FTM-29NPM

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

This matter comes before the Court on the following seven

petitions or motions filed by petitioner Ulysses Richman

(Petitioner or Richman) challenging his federal conviction for

possession of a firearm by a convicted felon: (1) Motion Under 28

U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a

Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #110)1 and

Memorandum In Support (Cv. Doc. #2); (2) [Motion for] Summary

Judgement Rule 56(a) (Cv. Doc. #13); (3) [Motion for] Summary

Judgement Rule 56(a) (Cv. Doc. #14); (4) Motion Rule 52(b) (Cv.

Doc. #15); (5) First Amendment Petition (Cv. Doc. #18); and (6)

Motion to Amend Jurisdictional Claim to 2255(a)(1)-(a)(2) Petition

1The Court will refer to the docket of the civil habeas case as

“Cv. Doc.”, and will refer to the docket of the underlying criminal

case as “Cr. Doc.” The page numbers cited by the Court refer to

the computer-generated page numbers on the upper right corner of

the document and may be different than the numbers assigned by the

author of the document.

(Cv. Doc. #21). The government filed a Response to the Motion

Under 2255 (Cv. Doc. #11) and a Response (Cv. Doc. #19) to First

Amendment Petition, and Petitioner filed a Response (Cv. Doc. #14,

pp. 8-12) and a Reply (Cv. Doc. 20). For the reasons set forth

below, the motion to amend (Cv. Doc. #21) is granted, and the §

2255 petition and other motions are denied.

I.

On September 4, 2013, a federal grand jury in Fort Myers,

Florida returned a two-count Indictment against Ulysses Richman.

(Cr. Doc. #1.) Count One charged Richman with possession of a

1

firearm by a convicted felon, while Count Two charged him with

possession with intent to distribute cocaine. On July 1, 2014,

Richman pled guilty to each count, without the benefit of a plea

agreement. (Cr. Docs. ## 50-53.)

According to the Presentence Report (PSR), Richman qualified

as both a career offender under the U.S. Sentencing Guidelines and

as an armed career criminal under the Armed Career Criminal Act

(ACCA). (Cr. Doc. # 57, ¶¶ 27, 38.) The applicable Sentencing

Guidelines range was calculated as 188 to 235 months imprisonment.

(Id. at ¶ 72.) On October 27, 2014, the Court sentenced Richman

to 180 months imprisonment as to each count, to be served

1

More specifically, the firearm was a Jennings model J-22, .22

caliber pistol. (Cr. Doc. #1, p. 2.) The statement in the

government’s Response that Richman was charged with possession of

concurrently, followed by a term of supervised release. (Cr. Doc.

#66.) The Judgment (Cr. Doc. #69) was filed on October 29, 2014.

On September 25, 2015, Richman’s convictions and sentences

were affirmed on direct appeal, but the case was remanded to the

district court to correct a clerical error in the judgment. United

States v. Richman, 616 F. App'x 413 (11th Cir. 2015). The

corrected Judgment Upon Remand (Cr. Doc. #102) was filed on

2

February 2, 2016.

Petitioner’s § 2255 motion (Cv. Doc. #1) and Memorandum (Cv.

Doc. #2) were signed, and deemed filed, on October 7, 2019. The

2255 Petition and Memorandum assert that: (1) Petitioner’s

attorney provided ineffective assistance of counsel, (2)

Petitioner is “statutorily innocent” of the § 922(g) offense

considering Rehaif v. United States, 139 S. Ct. 2191 (2019); and

(3) Petitioner’s prior convictions no longer qualify as predicate

convictions for either the Sentencing Guidelines career criminal

3

enhancement or the ACCA enhancement. (Doc. #1, pp. 4-7; Doc. #2,

2

Richman’s more recent motions for compassionate release and a

sentence reduction under the First Step Act of 2018 were denied.

See Docs. #140, #152, #155.

3

Petitioner asserts that his § 2255 motion is timely under §

2255(f)(3) because it was filed within one year of the Supreme

Court’s decision in Rehaif. (Cv. Doc. #2, p. 3.) The United

States concedes that petitioner’s Rehaif claim (but not the other

claims) is timely filed and cognizable in a § 2255 proceeding.

(Cv. Doc. #11, pp. 5-6, 8-9). The United States also states that

it “has been instructed to not contest retroactivity,” but then

p. 1.) Petitioner asks the Court to vacate his possession of a

firearm by a convicted felon conviction and sentence in Count One,

and then to re-sentence him on the possession with intent to

distribute cocaine conviction in Count Two, without the career

criminal or ACCA enhancements. (Cv. Doc. #2, p. 1.) Petitioner

raises other issues in his other motions, which will also be

discussed below. Given Petitioner’s pro se status, the Court

construes his Petition and motions liberally.

II.

4

With one exception , all of Petitioner’s issues relate to his

conviction for what is commonly referred to as a felon-in-

possession offense. Title 18 U.S.C. § 922(g)(1) provides in

pertinent part that it is 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,

holding that Rehalf is not retroactive in the context of a second

or successive petition. In re Wright, 942 F.3d 1063 (11th Cir.

2019); In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019). (Cv.

Doc. #11, pp. 6-7.) Thus, the government has waived any argument

concerning the lack of retroactivity of Rehaif. The Court finds

petitioner’s § 2255 motion is timely under § 2255(f)(3) as to the

Rehaif-related issues, which are cognizable in this § 2255

proceeding. Also, “failure to raise an ineffective-assistance-

of-counsel claim on direct appeal does not bar the claim from being

brought in a later, appropriate proceeding under § 2255.” Massaro

v. United States, 538 U.S. 500, 509 (2003).

4

Petitioner has a single sentence which states that “Count One

and Count two (which includes Section 924) must be vacated.” (Cv.

Doc. #2, p. 11.) Count Two of the Indictment does not include a

reference to § 924 and is not impacted in any way by Rehaif.

any firearm or ammunition”. 18 U.S.C. § 924(e)(1). The statutory

penalty for this offense is up to ten years imprisonment. 18

U.S.C. § 924(a)(2). Under the Armed Career Criminal Act (ACCA),

if the person also has three previous convictions by any court

“for a violent felony or a serious drug offense, or both,” the

person is subject to an enhanced sentence of not less than fifteen

years imprisonment. 18 U.S.C. § 924(e)(1).

At the time of Richman’s offense and the proceedings in the

district court, it was well-settled that a conviction under §

922(g) required the government to allege and ultimately prove that:

(1) the defendant knowingly possessed a firearm or ammunition; (2)

the defendant was prohibited by one of the grounds in § 922(g)

from possessing a firearm or ammunition; and (3) the firearm or

ammunition affected interstate commerce. United States v. Palma,

511 F.3d 1311, 1315 (11th Cir. 2008). There was no requirement

that the government prove defendant knew of his status as a

convicted felon. United States v. Jackson, 120 F.3d 1226, 1229

(11th Cir. 1997); United States v. Rehaif, 888 F.3d 1138, 1147

(11th Cir. 2018); United States v. Roosevelt Coats, 8 F.4th 1228,

1234 (11th Cir. 2021).

This was changed by the Supreme Court in Rehaif v. United

States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court

reversed a defendant’s conviction under § 922(g)(5)(A), which

prohibits possession of a firearm by an unlawful alien, because

the district court had instructed the jury it did not need to find

that defendant knew he was in the country unlawfully. Rehaif, 139

S. Ct. at 2195. The Supreme Court held that “in a prosecution

under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove

both that the defendant knew he possessed a firearm and that he

knew he belonged to the relevant category of persons barred from

possessing a firearm.” Id. at 2200. “In felon-in-possession cases

after Rehaif, the Government must prove not only that the defendant

knew he possessed a firearm, but also that he knew he was a felon

when he possessed the firearm.” Greer v. United States, 141 S.

Ct. 2090, 2095 (2021) (citing Rehaif at 2199-2200) (emphasis in

original). As the Eleventh Circuit has summarized: “when a

defendant is charged with being a felon in possession of a firearm

under § 922(g)(1), the knowledge-of-status element requires proof

that at the time he possessed the firearm he was aware he had a

prior conviction for ‘a crime punishable by imprisonment for a

term exceeding one year.’ See [Rehaif at 2200] (quoting 18 U.S.C.

§ 922(g)(1)).” Roosevelt Coats, 8 F.4th at 1234–35.

The plain error standard of Fed. R. Crim. P. Rule 52(b)

applies to unpreserved Rehaif issues. Greer, 141 S. Ct. at 2096.

To satisfy this standard, a litigant must satisfy three threshold

requirements: (1) there must be error; (2) the error must be plain;

and (3) the error must affect substantial rights. Id. If all

three requirements are satisfied, the court may grant relief if

the error had a serious effect on the fairness, integrity, or

public reputation of judicial proceedings. Id. at 2096-2097. The

party asserting plain error has the burden of establishing each of

these four requirements. Id. at 2097.

III.

Most of the claims raised by Richman relate to the impact of

Rehaif on the validity of his conviction of Count One. None of

these claims were raised in the district court, and therefore the

plain error standard applies. While Richman establishes that

there were Rehaif errors which are deemed plain as to the

Indictment and the acceptance of the guilty plea, he does not

establish the other two requirements of the plain error standard.

A. Plain Errors Under Rehaif

Petitioner asserts that the Indictment filed against him does

not allege that he knew of his convicted-felon status, as now

required by Rehaif, which constitutes plain error. Richman also

argues that it was plain error to accept his guilty plea because

he was not informed of the full mens rea element as clarified by

Rehaif, thus rendering his guilty plea both unknowing and

involuntary. Petitioner is correct that neither the Indictment

nor the acceptance of the guilty plea complied with the

requirements of Rehaif and constitute plain error.

(1) Indictment

Count One of the Indictment (Cr. Doc. #1) charged that on or

about April 25, 2013, Ulysses Richman was “a person convicted of

a crime punishable by imprisonment for a term exceeding one year,”

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and specifically identified three such convictions. Count One

further alleged that on that date Richman “did knowingly possess,

in and affecting interstate commerce, a firearm, namely, a Jennings

model J-22, .22 caliber pistol,” “[i]n violation of Title 18 U.S.C.

Sections 922(g)(1) and 924(e).” (Id.) Count One did not allege,

however, that Richman knew he was “person convicted of a crime

punishable by imprisonment for a term exceeding one year,” i.e.,

that he knew he was a convicted felon. It is a reasonable

inference, as Richman argues (Cv. Doc. # 21), that the grand jury

received no evidence or instructions as to this component of the

mens rea requirement. There is no dispute that Count One failed

to comply with the requirements of Rehaif.

Read liberally, Petitioner appears to argue that because of

the defective Indictment (and the invalid guilty plea) the district

court lacked subject matter jurisdiction over his case, which he

may challenge at any time. (Cv. Doc. #13, pp. 3-4, 5.) The

5

The three felonies were sale of cocaine in 2004; sale of cocaine

in July of 2008; and sale cocaine in August of 2008. (Cr. Doc.

Eleventh Circuit has repeatedly found that similar indictments

sufficiently alleged a federal criminal offense, and that the

omission does not deprive the district court of subject matter

jurisdiction. See United States v. Moore, 954 F.3d 1322, 1332-37

(11th Cir. 2020) (a defect in the indictment does not deprive the

district court of jurisdiction). See also United States v. Bates,

960 F.3d 1278, 1295 (11th Cir. 2020); United States v. McLellan,

958 F.3d 1110, 1118 (11th Cir. 2020); United States v. Innocent,

977 F.3d 1077, 1084 (11th Cir. 2020); United States v. Johnson,

981 F.3d 1171, 1180 n.3 (11th Cir. 2020), cert. denied, 142 S. Ct.

567 (2021); United States v. Leonard, 4 F.4th 1134, 1142-43 (11th

Cir. 2021); United States v. Dudley, 5 F.4th 1249, 1267 (11th Cir.

2021). Accordingly, petitioner’s jurisdictional argument is

without merit.

Petitioner primarily argues that his § 922(g) Indictment was

defective. It is now well-established that this type of omission

from a § 922(g) indictment is both error and plain. See Moore,

954 F. 3d at 1337; Innocent, 977 F.3d at 1082; Johnson, 981 F.3d

at 1179; Leonard, 4 F.4th at 1143; Dudley, 5 F.4th at 1267.

Petitioner has therefore satisfied the first and second prong of

6

the plain error standard as to Count One of the Indictment.

6

Petitioner also argues that his conviction is unlawful because

the § 922(g) statute “lacks a ‘knowing’ element” as required by

Rehaif (Cv. Doc. #2, pp. 1-2), and that “the Supreme Court has

voided a material element within the statute of petitioner’s

(2) Acceptance of Guilty Plea

Richman also argues that it was plain error to accept his

guilty plea when he was not informed of the knowledge-of-status

element added by Rehaif, thus rendering his guilty plea both

unknowing and involuntary. Petitioner is correct.

Richman entered an unconditional guilty plea to both counts

without the benefit of a plea agreement. (Cr. Doc. #50, p. 1.)

The government argues that the guilty plea waives Petitioner’s

Rehaif argument because such a guilty plea waives all non-

jurisdictional defects. (Cv. Doc. #11, pp. 13-15.) The Eleventh

Circuit has rejected that argument. A guilty plea does not waive

all challenges to the plea itself and a petitioner can still attack

“the voluntary and knowing nature of the plea.” Bates, 960 F.3d

at 1295–96 (quoting Wilson v. United States, 962 F.2d 996, 997

(11th Cir. 1992)). Bates held that Rehaif was one of those issues

which could be raised to challenge a guilty plea. See also

Roosevelt Coats, 8 F.4th at 1234-40 (allowing Rehaif challenge to

unconditional guilty plea).

When Richman pled guilty to this offense, the Notice of the

elements did not include the Rehaif knowledge-of-status element.

questions about the statute itself or voided any element, and the

statute as clarified by Rehaif, has two mens rea components. “In

Rehaif, the Supreme Court concluded that the word “knowingly” in

18 U.S.C. § 924(a) ‘applies both to the defendant's conduct and to

the defendant's status.’ 139 S. Ct. at 2194, 2195–96.” Dudley, 5

F.4th at 1267. Petitioner’s arguments to the contrary are without

(Cr. Doc. #50, p. 2.) The magistrate judge who took the guilty

plea did not inform Richman of this knowledge-of-status element.

(Cr. Doc. #90, pp. 14-16.) Therefore, the district court should

not have accepted the guilty plea. Roosevelt Coats, 8 F.4th at

1235; Johnson, 981 F.3d at 1179. Richman has satisfied the first

two prongs of the plain error standard as to the acceptance of the

guilty plea.

B. Affecting Substantial Rights

As an initial matter, it is undisputed that Petitioner was in

fact a convicted felon at the time of the offense charged in Count

One. Petitioner so informed the magistrate judge at the guilty

plea proceeding (Doc. #90, p. 16), and had no objection to the

PSR’s rendition of his criminal history at the sentencing hearing.

(Cr. Docs. #57, ¶¶ 31-36; #87, p. 14.)

Contrary to petitioner’s argument (Cv. Doc. #21, p. 2), a

Rehaif error is not structural error. While there was plain error

in both the Indictment and the acceptance of the guilty plea, “the

error must have affected the defendant's substantial rights, which

in the ordinary case means he or she must ‘show a reasonable

probability that, but for the error,’ the outcome of the proceeding

would have been different.” Molina-Martinez v. United States, 578

U.S. 189, 194 (2016) (citation omitted). See also Innocent, 977

F.3d at 1082; Johnson, 981 F.3d at 1181. In other words, petitioner

must demonstrate prejudice. Roosevelt Coats, 8 F.4th at 1236-37.

See also Leonard, 4 F.4th at 1142-1145. Petitioner must show that

had the Indictment correctly contained the knowledge-of-status

allegation or “if the District Court had correctly advised him of

the mens rea element of the offense, there is a reasonable

probability that he would not have pled guilty.” Greer, 141 S.

Ct. at 2097; Roosevelt Coats, 8 F.4th at 1237-38. A reasonable

probability is a “probability sufficient to undermine confidence

in the outcome.” United States v. Margarita Garcia, 906 F.3d 1255,

1267 (11th Cir. 2018) (internal quotation marks omitted). To

determine whether substantial rights have been affected, the Court

reviews the entire record. United States v. Reed, 941 F.3d 1018,

1021 (11th Cir. 2019); Moore, 954 F.3d at 1337.

Petitioner asserts that the Rehaif error “affects petitioner

substantially his rights because he was convicted after a deficient

indictment.” (Cv. Doc. #2, p. 11.) This sequence alone is

clearly insufficient. Petitioner must make a sufficient argument

or representation that he would have presented evidence at trial

that he did not in fact know he was a felon. Greer at 2097–98,

2100; Roosevelt Coats, 8 F.4th at 1238. Petitioner does claim

that he lacked the required knowledge, and therefore asserts that

the failure of the Indictment or the plea process to impart such

knowledge adversely affected his substantial rights.

Not all the knowledge which Petitioner claims he lacked is

required by law, either before or after Rehaif. Petitioner

asserts that he did not know his possession of a firearm

constituted a federal offense. More specifically, Petitioner

asserts that he is “statutorially [sic] innocent of § 922(g)”

because “he was not cognizant of the fact that his previous

incarcerations – where he mostly spent less than one year

incarcerated and/or was only sentenced to probation – manifested

a federal offense because he possessed a firearm.” (Cv. Doc. #2,

p. 1.) See also id. at 3 (“petitioner’s cognition was lacking of

the fact that his previous incarcerations manifested conduct that

violated a federal offense . . .”); id. at 10 (petitioner

statutorily innocent because he did not spend more than one year

incarcerated on past convictions and did not “know” he was not

lawfully able to possess a firearm). Petitioner takes it a step

further, asserting that he lawfully possessed the firearm since he

“was actually able to possess a firearm because he has not spent

more than one year incarcerated in prison.” (Id., p. 10.)

But neither Rehaif nor any other binding authority requires

this type of knowledge. The language of § 922(g) requires that

at the time of the offense a defendant must know he “has been

convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year.” 18 U.S.C. § 922. “[T]he knowledge-

of-status element requires proof that at the time he possessed the

firearm he was aware he had a prior conviction for ‘a crime

punishable by imprisonment for a term exceeding one year.’”

Roosevelt Coats, 8 F.4th at 1235 (quoting 18 U.S.C. § 922(g)(1)).

Nothing in the statute requires that a § 922(g) defendant know he

has committed a federal offense. Leonard, 4 F.4th 1145 n.5 (“In

a prosecution under § 922(g), the government must prove that a

defendant knew of his status as a person barred from possessing a

firearm, but it does not need to prove that the defendant knew he

could not possess a gun.” (citation omitted) (emphasis in

original)); United States v. Lawson, 861 F. App’x 337, 340 (11th

Cir. 2021) (“The relevant status element for a felon-in-

possession-of-a-firearm charge requires proof that the defendant

knew he was a person convicted of ‘a crime punishable by

imprisonment for a term exceeding one year.’” (citations

omitted)); United States v. Benton, 988 F.3d 1231, 1235–36 (10th

Cir. 2021) (rejecting an argument that “Rehaif imposed an

additional burden on the government . . . to prove [a defendant]

knew he was prohibited from possessing a firearm as a result of

his status”). Id. at 1238 (A defendant’s ‘knowledge of his status’

“is what helps ensure . . . that the defendant has the ‘intent

needed to make his behavior wrongful.” (citations omitted)).

Petitioner also argues, however, that he did not know that he

was a convicted felon, and the government could not prove

otherwise. Petitioner asserts that “no trier-of-fact could

reasonably find petitioner in violation of said statute. . . .”

(Cv. Doc. #2, p. 3.) Petitioner further states that no jury would

find him guilty because petitioner did not know that he was part

of a category of people who could not possess a firearm.

Petitioner argues that he never served over one year incarceration

on his prior convictions that the government used as predicate

offenses for the sentence enhancements, and that he was not a

prohibited person because he had not ever served one year and one

day incarceration and is therefore innocent. (Cv. Doc. #2, p. 7.)

Petitioner argues that the presence of the mens rea requirement in

the Indictment and plea colloquy would have caused the government

to realize it could not prove he had knowledge that he was not

authorized to carry a firearm. (Cv. Doc. #2, p. 10.)

As stated in Rehaif, the government's obligation to prove

knowledge-of-status is not “burdensome,” as “knowledge can be

inferred from circumstantial evidence.” Rehaif, 139 S. Ct. at 2198

(quoting Staples v. United States, 511 U.S. 600, 615 n.11 (1994)).

“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.” Greer at 2097. See also Roosevelt Coats,

8 F.4th at 1238.

The Indictment (Cr. Doc. #1) identified three drug-sale

convictions as predicate offenses for § 922(g) and for the sentence

enhancements under § 924(e). The Notice of Elements (Cr. Doc.

#50) identified seven felony convictions, the three drug sale

convictions identified in the Indictment and four possession of

cocaine convictions. (Cr. Doc. #50, p. 2.) The PSR confirmed

that Petitioner had been convicted of the seven felony offenses

(the three drug sale convictions, plus the four possession of

cocaine convictions), which all qualified as predicate convictions

under § 922(g). (Cr. Doc. # 57, pp. 5-6, ¶14.) The Presentence

Report also confirmed that the three drug sale convictions

qualified Richman as a career offender and an armed career

offender. (Id. at p. 7, ¶¶ 26, 27.) On four of the convictions,

Richman was sentenced to a term of imprisonment in excess of one

year. (Id. at pp. 11-12, ¶¶ 34, 35.) Petitioner had no objections

to the Presentence Report. (Cr. Doc. #87, p. 14.) Attached to

the government’s response are the documents from the underlying

predicate offenses. (Cv. Doc. #11-1.) A prior felony conviction

constitutes “substantial evidence” that a defendant knew he was a

felon. Roosevelt Coats, 8 F.4th at 1238.

Petitioner’s argument that he did not know of his status as

a convicted felon because he never served more than a year

imprisonment is unavailing. “The ACCA does not impose a temporal

requirement on predicate offenses or require that the predicate

offenses result in at least twelve months’ imprisonment.” United

States v. Lewis, 833 F. App’x 261, 265 (11th Cir. 2020).

The government could have readily proven beyond a reasonable

doubt that Petitioner had the relevant knowledge of his status as

a convicted felon. Had the issue been contested at trial,

Petitioner's seven felony convictions would have provided the

government powerful evidence that he knew he was a felon.

Innocent, 977 F.3d at 1083. Given Petitioner’s criminal history,

no reasonable juror could have found otherwise. See e.g., Reed,

941 F.3d at 1021-22; Innocent, 977 F.3d at 1083; Moore, 954 F.3d

at 1337–38; Roosevelt Coats, 8 F.4th at 1239.

There is no contemporaneous evidence to suggest that, had the

Indictment and guilty plea colloquy included the knowledge-of-

status element, Petitioner would have changed his plea and

7

proceeded to trial. E.g., United States v. McLellan, 958 F.3d

1110, 1120 (11th Cir. 2020). The probability is virtually zero

that it would have changed Richman’s decision to plead guilty.

E.g., Bates, 960 F.3d at 1296.

The Court finds that neither the Indictment error nor the

acceptance of the guilty plea error, either individually or

cumulatively, satisfy the third prong of the plain error standard.

7

Petitioner argues that he would not have signed the plea if not

for the Rehaif error (Cv. Doc. #14, p. 2) and references an

“[a]ppeal waiver signed by petitioner within his plea.” (Cv. Doc.

#2, p. 4.) The record reflects no such document as there was no

C. Serious Effect on Judicial Proceedings

Even if Richman could establish the third plain error prong,

he has not established that the plain errors had a serious effect

on the fairness, integrity, or public reputation of his judicial

proceedings. Petitioner is in fact a seven-time convicted felon

who served time in prison on multiple occasions. The evidence is

overwhelming that Richman knew of his convicted felon status, and

that the government could easily prove it if it had been called

upon to do so.

D. Ineffective Assistance of Counsel

Petitioner argues that counsel was ineffective for failing to

argue that the predicate offenses that enhanced his sentence were

not qualifying felonies because (1) he was not incarcerated for a

term exceeding a year, and (2) he did not know he was not lawfully

in possession of a firearm and/or ammunition, as required by

Rehaif; and (3) he was not “debriefed” about the ACCA’s mandatory

minimum. Petitioner argues that his due process rights were

violated when substitution of counsel at sentencing was not

granted.

The legal standard for ineffective assistance of counsel

claims in a habeas proceeding is well established. To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner

must demonstrate both that (1) counsel's performance was deficient

because it fell below an objective standard of reasonableness, and

(2) prejudice resulted because there is a reasonable probability

that, but for the deficient performance, the result of the

proceeding would have been different. Hinton v. Alabama, 571 U.S.

263, 272 (2014) (citing Padilla v. Kentucky, 559 U.S. 356, 366

(2010) (quoting Strickland v. Washington, 466 U.S. 668, 687, 694

(1984))).

The proper measure of attorney performance is simply

reasonableness under prevailing professional norms considering all

the circumstances. Hinton, 571 U.S. at 273 (citation omitted).

A court must “judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time

of counsel’s conduct. . . .” Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000) (quoting Strickland at 690). This judicial scrutiny

is highly deferential, and the Court adheres to a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689-

90. To be objectively unreasonable, the performance must be such

that no competent counsel would have taken the action. Rose v.

McNeal, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611

F.3d 1259, 1290 (11th Cir. 2010). Additionally, an attorney is

not ineffective for failing to raise or preserve a meritless issue.

United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);

Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989). “Reasonably

effective representation cannot and does not include a requirement

to make arguments based on predictions of how the law may develop.”

Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994)

(citations omitted).

To establish prejudice under Strickland, petitioner must show

more than that the error had “some conceivable effect on the

outcome of the proceeding.” Marquard v. Sec’y for the Dep’t of

Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (citation omitted).

Rather, the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Hinton, 134

S. Ct. at 1087-88. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Hinton, 134

S. Ct. at 1089 (quoting Strickland, 466 U.S. at 694) (internal

quotation marks and citations omitted).

The length of the sentence or time served has no bearing on

whether the predicate offenses can be considered as long as they

constitute a “serious drug offense”. United States v. Lewis, 833

F. App'x 261, 265 (11th Cir. 2020). Therefore, the first issue

is without merit and counsel’s performance did not fall below an

objective standard of reasonableness for failing to argue

otherwise. As the second issue of knowledge, counsel is not

required to predict changes in the law and the mens rea element

was not required at the time, pre-Rehaif. United States v. Finley,

805 F. App'x 823, 827 (11th Cir. 2020) (“This Court's precedent

clearly forecloses an ineffective-assistance-of-counsel claim

based on failure to raise an objection that would not succeed under

current law, but which could succeed depending on a forthcoming

Supreme Court decision.”). Counsel is not deficient for failing

to raise the issue.

As to the last issue, Petitioner argues that he was not

“debriefed” about the ACCA’s mandatory minimum. At the plea

hearing, the Magistrate Judge informed Petitioner that Count I

carried a mandatory minimum term of imprisonment of 15 years (or

180 months) up to life. (Cr. Doc. #90, p. 7.) At sentencing, the

Court granted a variance and imposed the statutory minimum

sentence:

Mr. Richman, The Court is required to impose

a sentence that is sufficient, but not greater

than necessary, after considering all the

factors in Title 18, United States Code,

Section 53. In this case, that is curtailed to

some degree, because the Court has a statutory

mandatory minimum that applies, so the Court

cannot go below 180 months as to the count in

this case dealing with the firearm.

(Cr. Doc. #87, p. 22.) This issue also has no merit because the

record reflects that Petitioner was informed of the statutory

mandatory minimum, and there is therefore no reasonable

probability that the outcome (sentence) would have been different.

In fact, counsel argued for a sentence below the applicable

guideline range and prevailed.

The Court concludes that none of Richman’s arguments show

either that counsel’s performance was deficient or that Richman

suffered prejudice as a result of that performance. Therefore,

the ineffective assistance of counsel issue is without merit.

IV.

Petitioner also raises various other issues not related to

Rehaif, or the other issues raised in the habeas petition.

A. First Step Act

Petitioner seeks a sentence reduction under the First Step

Act of 2018, asserting that his prior drug convictions do not

qualify as a “serious drug offense,” as currently required by

Section 401 of the First Step Act. (Cv. Doc. #2, pp. 12-13.) The

First Step Act did make changes:

First Step Act § 401 amended 21 U.S.C. §

841(b)(1)(A) by changing the mandatory

penalties it imposed for repeat

offenders, as well as altering the types

of offenses that trigger those penalties.

Specifically, while § 841(b)(1)(A)

previously stated that a prior conviction

for a “felony drug offense” would trigger

mandatory penalties, First Step Act §

401(a) changed the prior-conviction

requirement to a “serious drug felony or

serious violent felony.” First Step Act

§ 401(a) also changed the mandatory

minimum sentence for defendants who have

had two or more such prior convictions,

from life imprisonment to 25 years.

United States v. Pubien, 805 F. App'x 727, 730 (11th Cir. 2020).

Section 401 does not provide a basis for relief because this

portion of the First Step Act is not retroactive. Pubien, 805 F.

App'x at 730 (“The First Step Act did not make § 401’s amendments

retroactively applicable to defendants sentenced prior to its

enactment.”); United States v. Taylor, 21-11689, 2021 WL 5321846,

at *2 (11th Cir. Nov. 16, 2021) (“However, this portion of the

First Step Act is not retroactively applicable to offenders like

Taylor who were sentenced prior to the enactment of the First Step

Act. See First Step Act § 401(c), 132 Stat. at 5221.”); United

States v. Brown, 20-14668, 2021 WL 4787135, at *2 (11th Cir. Oct.

14, 2021) (“In a separate section, the First Step Act also made

changes to § 841(b)’s enhanced recidivist penalties, see id., §

401(a), but Congress specified that these amendments applied to

only defendants who had not been sentenced by the enactment date

of the First Step Act, December 21, 2018, id., § 401(c).”)

Defendant was sentenced on October 27, 2014. Since

petitioner was sentenced before December 21, 2018, the portion of

the First Step Act addressing convictions, which may be used

pursuant to 21 U.S.C. § 851, does not apply retroactively to him.

See United States v. Mathews, 837 F. App'x 701, 704 (11th Cir.

2020) (Section 401 of the First Step Act “by its plain language,

does not apply to sentences that were imposed before December 21,

2018.”)

B. Compassionate Release

Also embedded in the papers is petitioner’s request for a

reduction based on extraordinary and compelling reasons was

denied. (Cv. Doc. #2, p. 14.) The Court has denied such relief

in prior orders in the criminal case, and a § 2255 proceeding is

not a proper forum for consideration of such a motion. In any

event, the Court has already considered the request and continues

to find no basis to grant the requested relief.

C. Lack of Commerce Jurisdiction

In the First Amendment Petition (Cv. Doc. #18), petitioner

argues that possession of a firearm “in or affecting commerce”

under Section 922(g)(1) explicitly avoids the use of the phrase

“interstate or foreign,” thus regulating only intrastate commerce

at a private residence. This makes the statute unconstitutional,

petitioner asserts. The Court disagrees, even assuming the

argument is timely and not procedurally defaulted.

It has long been recognized that “[w]hen viewed in the

aggregate, a law prohibiting the possession of a gun by a felon

stems the flow of guns in interstate commerce to criminals.”

United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).

We believe that the acquisition of firearms by

convicted felons and persons under indictment

for felonies, although arguably intrastate

activity, imposes a sufficient burden upon

interstate commerce to be a proper subject for

federal regulation. See U.S. Code Cong. and

Admin. News 1968, pp. 2163-2166. If Congress

is to effectively prevent the interstate use

of guns for illegal purposes it must control

their sources: manufacturers, dealers, and

importers. That is what it sought to do in §

922.

8

United States v. Nelson, 458 F.2d 556, 559 (5th Cir. 1972) . Like

Petitioner, McAllister also cited to the Supreme Court decision in

United States v. Lopez 514 U.S. 549 (1995) to argue that Congress

exceeded its Commerce Clause power.

In Lopez, the Supreme Court struck down the

Gun-Free School Zones Act, 18 U.S.C. § 922(q),

which prohibited a person from possessing a

gun while in a “school zone.” The Court relied

on the fact that the statute “by its terms has

nothing to do with ‘commerce’ or any sort of

economic enterprise, however broadly one might

define those terms.” 514 U.S. at ----, 115 S.

Ct. at 1631. In contrast, § 922(g) makes it

unlawful for a felon to “possess in or

affecting commerce, any firearm or

ammunition.” 18 U.S.C. § 922(g) (emphasis

added). This jurisdictional element defeats

McAllister's facial challenge to the

constitutionality of § 922(g)(1).

McAllister, 77 F.3d at 389–90. See also United States v. Scott,

263 F.3d 1270, 1274 (11th Cir. 2001) (finding that neither Jones

v. United States, 529 U.S. 848 (2000) nor United States v.

Morrison, 529 U.S. 598 (2000) alter the decision in McAllister,

also cited by petitioner herein); United States v. Johnson, 981

F.3d 1171, 1191–92 (11th Cir. 2020).

Here, the statute is not limited to intrastate commerce, and

the government established interstate commerce at Petitioner’s

guilty plea.

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc) the Eleventh Circuit adopted as binding precedent

all the decisions of the former Fifth Circuit handed down prior to

THE COURT: This firearm, Mr. Michelland, it

was manufactured outside the State of Florida?

MR. MICHELLAND: Yes, Your Honor. The service

of the manufacturer of the firearm yielded and

resulted in being through ATF determination

that it was made in Irvine, California.

THE COURT: And you understand that one of the

elements really is also that it was in or

affecting interstate commerce, that that's

satisfied by the fact that the weapon was

actually manufactured somewhere else and

crossed the state line?

THE DEFENDANT: Yes.

(Cr. Doc. #90, pp. 16-17.) The amended petition is denied as

without merit.

D. Rule 52(b) Motion

Petitioner’s Rule 52(b) Motion (Cv. Doc. #15) is also without

merit. Defendant has previously filed a motion in the criminal

case to dismiss pursuant to Fed. R. Crim. P. 52(b), which the Court

denied, stating in part:

Therefore, the underlying predicate offenses

need only carry a potential term exceeding one

year; it is not required that defendant

receive an actual sentence in excess of one

year. Under the Sentencing Guidelines, a

“prior felony conviction means a prior adult

federal or state conviction for an offense

punishable by death or imprisonment for a term

exceeding one year, regardless of whether such

offense is specifically designated as a felony

and regardless of the actual sentence

imposed.” U.S. Sentencing Guidelines Manual §

4B1.2 cmt. n.1 (2013) (emphasis added). See

also United States v. Bercian-Flores, 786 F.3d

309, 316 (4th Cir. 2015); United States v.

Carr, 513 F.3d 1164, 1166 (9th Cir. 2008);

United States v. Haley, 129 F.3d 612 (5th Cir.

1997).

(Cr. Doc. #106, p. 4.) Petitioner is not entitled to relief under

this motion.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody (Cv. Doc. #1; Cr. Doc. #110), including

the request for relief under the First Step Act and for

compassionate release, is DENIED for the reasons set forth

above.

2. Petitioner’s [Motion for] Summary Judgement Rule 56(a)

(Cv. Doc. #13) is DENIED because petitioner is not

entitled to judgment as a matter of law.

3. Petitioner’s [Motion for] Summary Judgement Rule 56(a)

(Cv. Doc. #14) is DENIED because petitioner is not

entitled to judgment as a matter of law.

4. Petitioner’s Motion Rule 52(b) (Cv. Doc. #15) is DENIED

because petitioner is not entitled to judgment as a matter

of law.

5. Petitioner’s First Amendment Petition (Cv. Doc. #18) is

DENIED because as a matter of law the case against

petitioner is a federal criminal offense under 18 U.S.C.

§ 922(g).

6. Petitioner’s Motion to Amend Jurisdictional Claim to

2255(a)(1)-(a)(2) Petition (Cv. Doc. #21) is GRANTED to

the extent that the Court has considered the supplemental

arguments set forth in the motion in the resolution of the

§ 2255 Petition.

The Clerk of the Court shall enter judgment accordingly and

close the civil file. The Clerk is further directed to place a

copy of the civil Judgment in the criminal file.

IT IS FURTHER ORDERED:

A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN

FORMA PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s

denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell,

556 U.S. 180, 183 (2009). “A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(B)(2). To make such

a 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), or that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003) (citations omitted). Petitioner has not made the

requisite showing in these circumstances.

Finally, because Petitioner is not entitled to a certificate

of appealability, he is not entitled to appeal in forma pauperis.

DONE and ORDERED at Fort Myers, Florida, this 24th day

of January 2022.

Z — 2, _ /

JGHE E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

AUSA