The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
SHAWN LAVON BROWN, :
:
Petitioner, : Civ. No. 19-19456 (NLH)
:
v. : OPINION
:
WARDEN DAVID ORTIZ, :
:
Respondent. :
___________________________________:
APPEARANCES:
Shawn Lavon Brown
63717-019
Fort Dix Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner Pro se
Rachael A. Honig, Acting United States Attorney
Jane Dattilo, Assistant United States Attorney
Office of the U.S. Attorney
970 Broad St.
Suite 700
Newark, NJ 07102
Counsel for Respondent
HILLMAN, District Judge
Petitioner Shawn Lavon Brown, a prisoner presently confined
at FCI Fort Dix, New Jersey, filed this petition for writ of
habeas corpus under 28 U.S.C. § 2241, arguing that his
conviction is invalid due to the Supreme Court’s decision in
Rehaif v. United States, 139 S. Ct. 2191 (2019). ECF No. 1.
Respondent United States filed a motion to dismiss arguing that
the Petition should be dismissed for lack of jurisdiction. ECF
No. 13. Petitioner did not file any opposition to the motion.
For the reasons that follow, the Court will grant the motion to
dismiss.
I. BACKGROUND
Petitioner pled guilty on May 29, 2013 to conspiracy to
commit wire fraud, 18 U.S.C. § 1349; and aggravated identity
theft, 18 U.S.C. § 1028A(a)(1), in the United States District
Court for the Northern District of Georgia. United States v.
Brown, No. 1:12-cr-0389 (N.D. Ga. May 29, 2013) (ECF No. 160).
The trial court sentenced Petitioner to a total term of 160
months incarceration. Brown, No. 1:12-cr-0389 (N.D. Ga. Mar.
10, 2015) (ECF No. 373). The United States Court of Appeals for
the Eleventh Circuit affirmed Petitioner’s conviction and
sentence but remanded for correction of a clerical error in the
judgment. United States v. Brown, 646 F. App’x 907 (11th Cir.
2016).
Petitioner filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255, arguing that the United
States breached the plea agreement and that he received
ineffective assistance of counsel. Brown, No. 1:12-cr-0389
(N.D. Ga. Sept. 1, 2016) (ECF No. 444). The district court
denied the motion. Id. (Sept. 5, 2018) (ECF No. 507).
Petitioner next filed a motion in the Eleventh Circuit
requesting permission to file a second or successive § 2255
motion that argued his convictions were invalid after the
Supreme Court’s Rehaif decision. In re: Shawn Brown, No. 19-
13616 (11th Cir. Sept. 16, 2019); ECF No. 1-1. “He asserts
that, under Rehaif, a defendant must know that his conduct was
illegal, and his violation must have been willful. He asserts
that, under this new statutory interpretation of law, the
government was required to prove that he had the mens rea for
the crime charges, which included that he had knowledge of each
element of his offense.” ECF No. 1-1 at 2-3. The Eleventh
Circuit denied permission, stating “Rehaif did not announce a
new rule of constitutional law, as it merely clarified what the
government must prove in prosecuting an individual under 18
U.S.C. §§ 922(g) and 924(a)(2).” Id. at 4. Petitioner
subsequently filed this petition under § 2241 on October 29,
2019. ECF No. 1
Petitioner argues that his conviction for aggravated
identity theft is invalid after Rehaif, which held that the
government must prove the defendant knew he possessed a firearm
and that he knew he had the relevant status when he possessed
the firearm in order to convict under § 922(g). “The Petitioner
would have presented to the trial court that (1) he was given
lawful authority to file tax returns on behalf of his clients”
and “(2) At the time of the alleged offense the Internal Revenue
Service accepted freelance tax preparers filings without an
electronic filing identification number (His culpable state of
mind).” ECF No. 4 at 3. The United States argues this Court
lacks jurisdiction under § 2241 because Rehaif does not impact
convictions under § 1028A.
II. STANDARD OF REVIEW
Title 28, Section 2243 of the United States Code provides
in relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition must be construed liberally.
See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
III. ANALYSIS
Generally, a challenge to the validity of a federal
conviction or sentence must be brought under 28 U.S.C. § 2255.
See Jackman v. Shartle, 535 F. App’x 87, 88 (3d Cir. 2013) (per
curiam) (citing Okereke v. United States, 307 F.3d 117, 120 (3d
Cir. 2002)). “[Section] 2255 expressly prohibits a district
court from considering a challenge to a prisoner’s federal
sentence under § 2241 unless the remedy under § 2255 is
‘inadequate or ineffective to test the legality of his
detention.’” Snyder v. Dix, 588 F. App’x 205, 206 (3d Cir.
2015) (quoting 28 U.S.C. § 2255(e)); see also In re Dorsainvil,
119 F.3d 245, 249 (3d Cir. 1997).
Prisoners in the Third Circuit may use § 2241 to challenge
their convictions only after two conditions are satisfied: (1)
there must be “a claim of actual innocence on the theory that
[the prisoner] is being detained for conduct that has
subsequently been rendered non-criminal . . . in other words,
when there is a change in statutory caselaw that applies
retroactively in cases on collateral review,” and (2) “the
prisoner must be ‘otherwise barred from challenging the legality
of the conviction under § 2255.’” Bruce v. Warden Lewisburg
USP, 868 F.3d 170, 180 (3d Cir. 2017) (quoting United States v.
Tyler, 732 F.3d 241, 246 (3d Cir. 2013)).
Petitioner cannot satisfy the first requirement. Rehaif
narrowed the category of offenses that qualify as violations of
§ 922(g); it did not address the elements of § 1028A. The
aggravated identity statute states in relevant part that
“[w]hoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of
another person . . . .” 18 U.S.C. § 1028A(a)(1). In Flores-
Figueroa v. United States, the Supreme Court considered whether
the United States had to prove that the defendant knew that the
means of identification at issue belonged to another person.
556 U.S. 646 (2009). The Supreme Court concluded that “[a]s a
matter of ordinary English grammar, it seems natural to read the
statute’s word ‘knowingly’ as applying to all the subsequently
listed elements of the crime.” Id. at 650. Significantly as
applied to this case, the Court noted that “[a]ll parties agree
that the provision applies only where the offender knows that he
is transferring, possessing, or using something. And the
Government reluctantly concedes that the offender likely must
know that he is transferring, possessing, or using that
something without lawful authority.” Id. at 648 (emphasis
omitted).
Unlike § 922(g), the Supreme Court has recognized since
2009 that the Government must prove the defendant acted
knowingly as to all the elements of § 1028A.1 Rehaif does not
1 See Jessica A. Roth, Rehaif v. United States: Once Again, A Gun
Case Makes Surprising Law, 32 Fed. Sent. R. 23, 25 (2019)
(noting that in Flores-Figuero “the mens rea term appeared at
the beginning of the statute defining the offense and more
naturally ‘traveled’ down the sentence to modify each subsequent
element. In Rehaif, the men[s] rea term appeared after the
conduct elements of the offense, and therefore more work was
required to infer its application to those prior elements.”
(footnote omitted)).
apply to Petitioner’s aggravated identity theft because it was
already understood that the United States had to prove that a
defendant knew he or she did not have authorization to use the
identification instrument. Petitioner could have argued the
United States could not prove that knowledge requirement prior
to pleading guilty in 2013. Since Petitioner cannot show actual
innocence based on a change in the statutory interpretation of §
1028A, the Court lacks jurisdiction over the petition under §
2241.2
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interests of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it
was filed.” 28 U.S.C. § 1631. The Court finds that it is not
in the interests of justice to transfer this habeas petition to
the Eleventh Circuit for consideration because that circuit has
2 Petitioner asserts this Court has jurisdiction because the
Eleventh Circuit indicated he should be allowed to bring his
claim under the savings clause of § 2255. ECF No. 1 at 8. The
sentiment referenced by Petitioner was issued as part of Judge
Martin’s concurring opinion not in the main opinion, see ECF No.
1-1 at 5, and an opinion of the Eleventh Circuit does not govern
this Court. The Third Circuit has set forth the requirements
for challenging convictions using § 2241 in this circuit, and
“differences in the law amongst the circuits is a feature, not a
bug, of our federal judicial system. . . .” Bruce v. Warden
Lewisburg USP, 868 F.3d 170, 180(3d Cir. 2017).
already denied Petitioner’s request to file a second or
successive § 2255 motion based on Rehaif. See ECF No. 1-1.
IV. CONCLUSION
For the foregoing reasons, the motion to dismiss for lack
of jurisdiction will be granted. An appropriate order will be
entered.
Dated: May 7, 2021 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.