Hellems v. USA

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROMAN HELLEMS, # 15580-030, )

)

Petitioner, )

)

vs. ) Case No. 19-cv-1013-NJR

)

T.G. WERLICH, Warden, )

)

Respondent. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Petitioner Roman Hellems is an inmate in the Bureau of Prisons currently incarcerated at

FCI-Greenville. He filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. §2241 in

September 2019. (Doc. 1). His Amended Petition (Doc. 4) is now before the Court. Hellems

invokes Rehaif v. United States, __ U.S. __, 139 S. Ct. 2191 (2019), as the basis for his collateral

attack and request for immediate release. Respondent answered the Petition (Doc. 15), and

Hellems replied (Doc. 18).

Hellems was convicted by a jury of being a felon in possession of afirearm in violation of

18 U.S.C. §922(g)(1). (Doc. 15-2); United States v. Hellems, No. 15-cr-00141-JAJ (S.D. Iowa).

Heis serving a 120-month sentenceimposed in May 2016. (Doc. 15, p. 5; Doc. 15-6).

RELEVANT FACTS AND PROCEDURAL HISTORY

In October 2015, Hellems was charged by indictment with possession of two firearms after

having been convicted of a crime punishable by imprisonment for more than one year. (Doc. 15-

2). The indictment did not specifically allege that Hellems knew he was a convicted felon at the

time he possessed the guns. Hellems represented himself at trial with the assistance of appointed

standby counsel.1Hellems declined to stipulate to the factthat he had a prior felony conviction, so

the Government presented evidence that he had an Iowa state drug conviction,as well as a previous

Iowa conviction for receipt/control of firearms by a felon, both of which were punishable by more

than one year in prison. United States v. Hellems, 866 F.3d 856, 860-61 (8th Cir. 2017). The trial

court redacted the actual sentences imposed on those offenses. (Doc. 15, p. 3; Doc. 15-5, pp. 5-8).

The jury found Hellems guilty of possessing one of the firearms. (Doc. 15-3).

The Presentence Investigation Report (“PSR”) showed that Hellems had served well over

one year in prison for three of his prior felony offenses. (Doc. 17-1, pp. 9-11, 14, ¶¶34, 37, 46).

For his state felon-in-possession conviction in 1993, Hellems’s 5-year sentence was initially

suspended and he was placed on probation, but he served over 3 years in prison after probation

was revoked and another 2 years following revocation of his parole. (Doc. 17-1, p. 9, ¶34). He

was sentenced to 10 years’ imprisonment for delivery/possession of cocaine base, serving nearly

3 years before his work release (concurrent with the 3 years above) and another 2 years after his

parole was revoked (concurrent with the 2-year parole revocation term above). (Doc. 17-1, p. 10,

¶37). He served about 14 months of a 36-month sentence for a 2007 California domestic battery

offense. (Doc. 17-1, p. 14, ¶46).

Hellems’s 120-month federal sentence was affirmed on appeal in August 2017. United

States v. Hellems, 866 F.3d 856 (8th Cir. 2017). He filed an unsuccessful motion under 28 U.S.C.

§2255 and did not appeal the trial court’s February 14, 2019 denial. Hellems v. United States,

Noe. 18-cv-294-JAJ (N.D. Iowa).

1Hellemswas not present in the courtroom for the trial as the court ordered him removed when he refused

to cease his verbal interruptions during voir dire; he thereafter declined offers to view the trial on closed

circuit television or to return to the courtroom.United States v. Hellems, 866 F.3d 856, 860 (8th Cir. 2017);

(Doc. 144-1, pp. 3-4, criminal case).

APPLICABLE LEGAL STANDARDS

Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may not be used to

raise claims of legal error in conviction or sentencing, but are instead limited to challenges

regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.

1998). Thus, aside from the direct appeal process, a prisoner who has been convicted in federal

court is generally limited to challenging his conviction and sentence by bringing a motion pursuant

to 28U.S.C. §2255 in the court which sentenced him. A Section 2255 motion is ordinarily the

“exclusive means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214,

217 (7th Cir. 2003). A prisoner is also normally limited to only one challenge of his conviction

and sentence under Section 2255. He or she may not file a “second or successive” Section2255

motion unless a panel of the appropriate court of appeals certifies that such motion contains either

(1) newly discovered evidence “sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense,” or (2) “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. §2255(h).

Under very limited circumstances, however, it is possible for a prisoner to challenge his

federal conviction or sentence under Section2241. Specifically, 28 U.S.C. §2255(e) contains a

“savings clause” which authorizes a federal prisoner to file a Section 2241 petition where the

remedy under Section2255 is “inadequate or ineffective to test the legality of his detention.”

28U.S.C. §2255(e). See Hill v. Kerlinger, 695 F.3d 644, 648 (7th Cir. 2012) (“‘Inadequate or

ineffective’means that ‘a legal theory that could not have been presented under §2255 establishes

the petitioner’s actual innocence.’”) (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002);

see also United States v. Prevatte, 300 F.3d 792, 798–99 (7th Cir. 2002). The Seventh Circuit

construed the savings clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A procedure

for postconviction relief can be fairly termed inadequate when it is so configured as to deny a

convicted defendant any opportunity for judicial rectification of so fundamental a defect in his

conviction as having been imprisoned for a nonexistent offense.”2

Following Davenport and its progeny, the Seventh Circuit has enunciated a three-part test

for determining whether Section 2255 is inadequate or ineffective, thus triggering the savings

clause:

(1) the federal prisoner must seek relief based on a decision of statutory

interpretation (as opposed to a decision of constitutional interpretation, which

the inmate could raise in a second or successive § 2255 motion);

(2) the statutory rule of law in question must apply retroactively to cases on

collateral review andcould not have been invoked in a first § 2255 motion; and

(3) a failure to afford the prisoner collateral relief would amount to an error “grave

enough” to constitute “a miscarriage of justice.”

Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (emphasis in original) (citing Montana v.

Cross, 829 F.3d 775, 783 (7th Cir. 2016); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)).

See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Caraway, 719 F.3d 583,

586 (7th Cir. 2013).Thus, “there must be some kind of structural problem with section 2255 before

section 2241 becomes available. In other words, something more than a lack of success with a

section 2255 motion must exist before the savings clause is satisfied.” Webster v. Daniels, 784

F.3d 1123, 1136 (7th Cir. 2015).

2The Seventh Circuit’s interpretation of § 2255(e)’s savings clause is in line with a majority of the Circuit

Courts of Appeals’ jurisprudence on this issue, and aligns with that of the Eighth Circuit where Hellems

was convicted. See, e.g.,Abdullah v. Hedrick, 392 F.3d 957, 960-63 (8th Cir. 2004); In re Dorsainvil, 119

F.3d 245, 251 (3d Cir. 1997); Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997); In re Jones,

226 F.3d 328, 333-34 (4th Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001);

Martin v. Perez, 319 F.3d 799 (6th Cir. 2003); Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003); see

alsoWright v. Spaulding, 939 F.3d 695, 699 (6th Cir. 2019) (collecting cases).

ANALYSIS

On June 21, 2019, United States Supreme Court held in Rehaif:

[I]n 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. We

express no view, however, about what precisely the Government must prove to

establish a defendant’s knowledge of status in respect to other § 922(g) provisions

not at issue here.

Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (defendant’s conviction for illegal possession

of firearm and ammunition was based on his status of being illegally or unlawfully in the United

States; reversing/remanding because the Government had not been required to prove at trial that

defendant knew he was unlawfully in the country). The opinion abrogated nationwide precedent

in all eleven circuit courts of appeal which had held that knowledge was not an element that the

prosecution must prove to obtain a conviction.

Hellems asserts in the Amended Petition that his “criminal liability remains, unresolved”

in light of Rehaif. (Doc. 4, pp. 1-2). He insists that he is not seeking to vacate his conviction and

sentence, but instead seeks a “settlement conference” with the United States Department of Justice

and other federal officials to secure his immediate release, invoking several sections of the Code

of Federal Regulations. (Doc. 4, pp. 2-3; Doc. 4-1, pp. 1-2); see 28 C.F.R. §0.55(e) & §0.55(i).

He appears to argue that his indictment failed to state an offense because it did not include the

element that he knew he “belonged to the relevant status, that barred him from possessing a

firearm,” thus his custody is unlawful. (Doc. 4, p. 2). Hellems also argues for the first time in his

Reply that a defendant’s knowledge of his felon status can only be proven with ATF Form 4473

or Form 6, and these “necessary” forms were “unlawfully withheld from the Grand Jury” in his

case. (Doc. 18, p. 8).

Hellems’s premise that his criminal liability is “unresolved” is flawed, however, the jury

found him to becriminallyliablewhen itreturned theguiltyverdict, and thisconviction still stands

unless and until a court rules otherwise. The Rehaif decision itself did not undo Hellems’s

conviction or render his criminal liability “unresolved.” Hellems invokes Section 2241 to

challenge the basis of his custody, which amounts to a direct attack on his conviction despite his

insistence that it is not. As such, the Court will evaluate his habeas claim under 28 U.S.C. §2241

and the savings clause of 28 U.S.C. §2255(e).

Respondent concedes that Hellems’s Rehaif claim satisfies the first and second prongs of

the savings clause test –Rehaifis a statutory interpretation case, and it sets forth a new substantive

rule narrowing the scope of Section 922(g), which applies retroactively. (Doc. 15, pp. 17-18).

Further, this new substantive rule was previously unavailable to Hellems, because it would have

been futile to raise his claim in the Eighth Circuit under pre-Rehaif precedent. Id. However,

Respondent asserts Hellems cannot meet the third Davenport factor – a showing that an error in

his conviction amounts to a miscarriage of justice – because he was not convicted of a crime of

which he was innocent.(Doc. 15, pp. 19-24).3

It is true that Hellems’s indictment did not allege that he knew he was a convicted felon at

the time he possessed the firearms. This was consistent with the pre-Rehaif controlling precedent

at the time in the Eighth Circuit. See United States v. Thomas, 615 F.3d 95, 899 (8th Cir. 2010)

(government was not required to prove that Section 922(g) defendant knew of his disabling status);

United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999) (same). Cases following the Rehaif

decision make clear, however, that this Court can and should consider certain other evidence in

the record to determine whether it establishes the knowledge element set forth in Rehaif and if so,

3Respondent also raises the argument, in order to preserve it, that an inmate who previously challenged his

conviction under 28 U.S.C. §2255 is barred from using the “savings clause” to raise a later challenge under

Section 2241. (Doc. 15, pp. 8-16). The Court finds it unnecessary to address the merits of this argument

because, as Respondent acknowledges, it is contrary to controlling Seventh Circuit precedent. Id.at 16.

the conviction will stand even where the knowledge element was omitted from the indictment or

even the jury instructions. See, e.g., United States v. Pulliam, _ F.3d _, No. 19-2162, 2020 WL

5247590, at *3(7th Cir. Sept. 3, 2020);United States v. Maez, 960 F.3d 949 (7th Cir. 2020); United

States v. Williams, 946 F.3d 968, 973-74 (7th Cir. 2020). See also Bousley v. United States, 523

U.S. 614 (1998).

In this case, the jury heard sufficient evidence to support a finding, if they had been

instructed pursuant to Rehaif, that Hellems knew he had a previous felony conviction at the time

he possessed the firearm. The jury heard testimony on and received the certified records of two of

Hellems’s previous felony convictions, with the specific sentence information redacted. (Doc. 15-

5, pp. 4-8). One of these was his stateconviction for “receipt, transportation, dominion and control

of firearms and offensive weapons by a felon” (emphasis added) – which alone demonstrates that

Hellems knew of his status as a felon before he was charged with the instant felon-in-possession

offense. (Doc 15-5, pp. 7-8). His felony conviction for delivery of a controlled substance and/or

possession of a controlled substance with intent to deliver further established the knowledge

element now required by Rehaif.

The Seventh Circuit, on direct review of a felon-in-possession conviction for plain error

where the pre-Rehaifjury instructions did not include the knowledge element,examined “whether

the evidence presented to the jury permits an inference beyond a reasonable doubt that [the

defendant] knew he had committed a felony.” United States v. Maez, 960 F.3d 949, 967 (7th Cir.

2020). The Maez court found that the defendant’s stipulation to a prior felony conviction,

combined with the evidence of his evasive behavior and false statements at the time of his arrest,

were sufficient to permit the jury to infer he knew of his felon status, had they been instructed to

do so. Further, the fact that the defendant’s PSR showed he had multiple prior felony convictions,

including one for unlawful possession of a weapon by a felon, and had served more than one year

in prison, underscored that he knew he was a felon when he possessed the firearms. Maez, 960

F.3d at 968.

In Hellems’s case, the jury heard that he got into a fight with his adult son and another

man; the son and another witness testified that Hellems had guns on his person; and when police

arrived they saw a gun on the ground next to a Ford Explorer. Hellems fled the scene in the

Explorer and led officers on a chase, during which he flung an object (which an officer testified

was a black handgun) out the car window, before he was ultimately arrested. Hellems, 866 F.3d

856, 860 (8th Cir. 2017). As in Maez, this evidence of Hellems’s actions leading up to his arrest,

coupled with his prior felony convictions, would have supported an inference by the jury that he

knew he was a convicted felon. In addition, Hellems’s PSR established that he served well over

one year in prison on three separate occasions. (Doc. 17-1, pp. 9-11, 14). Taken together, this

record demonstrates that Hellems knew he was a convicted felon at the time he possessed the

firearm. See Pulliam, 2020 WL 5247590, at *3-4; Maez, 960 F.3d at 967-68 (considering PSR

record of prior incarceration, stipulation of felony conviction, and evidence supporting inference

of defendant’s knowledge of felon status to conclude plain error of omittedRehaif instruction did

not warrant reversal of conviction). See also United States v. Welch, 951 F.3d 901, 907 (8th Cir.

2020) (in light of prior convictions and incarceration exceeding one year, defendant could not

show reasonable probability of a different outcome if government had been required to prove he

knew he was a convicted felon at the time he possessed firearm).

While Maez,Pulliam,and Welchinvolved direct appeals from jury verdictsfor plain error,

the courts’reasoning is applicable in the context ofa collateral attack.In order to reversebased on

the Rehaif claim, the plain error must have affected the defendant’s substantial rights, and must

“seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.” Pulliam,

2020 WL 5247590, at *4(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).The court

compared that final element to “a ‘miscarriage of justice,’ or in other words, ‘a substantial risk of

convicting an innocent person.’” Pulliam, 2020 WL 5247590, at *4 (quoting Maez, 960 F.3d at

962). That, of course, is equivalent to the third element which Hellems must satisfy in order to

obtain collateral relief under the savings clause.

Given his prior convictions, one of which was for a state offense of possession of a firearm

as a felon, his evasive conduct before his arrest, and his multiple terms of incarceration in excess

of one year, the Court is satisfied that Hellemsknew he was a convicted felon when he possessed

the gun in the instant case. He therefore cannot demonstrate that the omission of the Rehaif

knowledge element from his indictment and jury instructions resulted in his being convicted of a

nonexistent offense, or of a crime of which he was innocent. There was no miscarriage of justice

in this case, and Hellems is not entitled to habeas relief under Section 2241 based on the Rehaif

decision.

Finally, because Hellems did not raise his argument relating to the ATF forms in his Habeas

Petition and waited to present them until he filed his reply brief, the Court is not required to

consider them. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“the district court is

entitled to find that an argument raised for the first time in a reply brief is forfeited”). The argument

lacks merit in any event. The ATF Form 4473 is a document completed by a firearms dealer and

the prospective purchaser to record information about the buyer’s ability to legally possess the

firearm, as well as information on the buyer and the firearm to facilitate tracing if the gun is

involved in a crime. A gun dealer may be subject to sanctions for transferring a firearm based on

information in Form 4473 that the dealer knows or has reason to believe is false. See Shawano

Gun & Loan, LLC v. Hughes,650 F.3d 1070, 1073 (7th Cir. 2011). ATF Form 6 is the Application

and Permit for Importation of Firearms, Ammunition and Implements of War. Neither of these

ATF forms is mentioned in the Rehaifdecision. Rehaifand cases applying it leave no doubt that a

person’s status as a convicted felon may be proven by evidence other than what might appear on

one of these ATF forms.

DISPOSITION

Roman Hellems’ Amended Petition for Writ of Habeas Corpus under 28 U.S.C. §2241

(Doc. 4) is DENIED, and this action is DISMISSED with prejudice. His Motion for Immediate

Settlement Conference (Doc. 19) and all other pending motions are DENIED as moot. The Clerk

of Court is DIRECTEDto enter judgment accordingly.

If Hellems wishes to appeal the dismissal of this action, his notice of appeal must be filed

with this Court within 60 days of the entry of judgment. FED.R.APP.P. 4(a)(1)(B). A motion for

leave to appeal in forma pauperis (“IFP”) must set forth the issues Hellems plans to present on

appeal. See FED.R.APP.P. 24(a)(1)(C). If Hellemsdoes choose to appeal and is allowed to proceed

IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined

based on his prison trust fund account records for the past six months) irrespective of the outcome

of the appeal. See FED.R.APP.P. 3(e); 28 U.S.C. §1915(e)(2); Ammons v. Gerlinger, 547 F.3d

724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.

Jockisch,133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal

Rule of Civil Procedure 59(e)may toll the 60-day appeal deadline. FED.R.APP.P. 4(a)(4). A Rule

59(e) motion must be filed no more than twenty-eight (28) days after the entry of the judgment,

and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion for relief

from a final judgment, do not toll the deadline for an appeal.

It is not necessary for Hellems to obtain a certificate of appealability from this disposition

of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

IT IS SO ORDERED.

DATED: September 30, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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