The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TERRELLE NELSON,
Petitioner,
Civil Action No. 21-9758 (KMW)
v.
OPINION
THOMAS E. BERGAMI,
Respondent.
WILLIAMS, District Judge:
This matter comes before the Court on Petitioner Terrelle Nelson’s petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241 (ECF No. 1), which seeks to challenge a 2016
guilty plea. Following an order to answer, the Government filed a response to the petition (ECF
No. 4), to which Petitioner replied. (ECF No. 5.) Also before the Court is Petitioner’s motion to
compel a decision on his habeas petition. (ECF No. 6.) For the reasons expressed below,
Petitioner’s Rehaif claim is denied, Petitioner’s remaining claim shall be dismissed without
prejudice for lack of jurisdiction, and his motion is denied as moot in light of this Court’s decision
on his underlying petition.
I. BACKGROUND
In denying Petitioner’s motion to vacate sentence in 2019, Judge Hillman summarized the
background of Petitioner’s conviction as follows:
On February 10, 2017, Terrelle Nelson pled guilty to Count Two of
a Superseding Indictment, which . . . charged Petitioner with a
violation of 18 U.S.C. § 922(g)(1), [being a] felon in possession of
a firearm. In addition to laying out the charge, the plea agreement
laid out the maximum sentence for the charge, which was ten . . .
years imprisonment. The plea agreement did not include an agreed
upon term of imprisonment, which was left to the discretion of the
Court, up to the statutory maximum.
The plea agreement contained certain stipulations regarding
Petitioner’s offense conduct and the advisory sentencing guidelines.
Specifically, the agreement stipulated that the base offense level
would be a 24 because Petitioner committed the instant offense
subsequent to sustaining at least two felony convictions for a crime
of violence or a controlled substance offense, including four . . .
convictions for possession with intent to distribute a controlled
dangerous substance pursuant to N.J.S.A. 2C:35-5 [for which he
received a five year drug court probationary sentence in January
2014 and a 364 day county jail sentence accompanied by four years
probation on the remaining three convictions in March 2008.] In
addition, the agreement stipulated that [the] special offense
characteristic found in U.S.S.G. [§] 2K2.1(b)(6)(B) applied to
Petitioner because he used or possessed a firearm or ammunition in
connection with another felony offense, more specifically,
distribution of a controlled dangerous substance on June 17, 2016,
the other count contained in the Superseding Indictment. . . .
. . . .
At the plea hearing, Petitioner and his attorney signed and
submitted a written Application for Permission to Enter [a] Plea of
Guilty. In the Application, Petitioner stated, inter alia, that he told
his lawyer all the facts and circumstances known to him about the
charges set forth in the indictments and information, that he was
satisfied that his lawyer understood the information that he
provided, and that his lawyer counseled and advised him on the
nature of each charge and on all possible defenses he might have in
this case. He also stated that his lawyer explained the plea
agreement to him and that he understood it. Finally, Petitioner
stated [that he was satisfied with counsel’s advice.] The Court
concluded that Petitioner’s plea was knowing and voluntary, and
supported by an independent basis, and accepted Petitioner’s plea of
guilty.
. . . .
. . . The Court went on to pronounce a sentence of 84 months
imprisonment, three years of supervised release . . . . on May 31,
2017. Petitioner did not file a notice of appeal.
(Docket No. 17-5083 at ECF No. 21 at 2-15.)
Petitioner filed a motion to vacate his sentence on August 7, 2017. (Id.) Judge Hillman
denied that motion by way of an opinion and order entered on September 6, 2019. (Id.)
On July 14, 2020, Petitioner filed a motion for reconsideration in that matter. Included in
that motion was an entirely new claim – one in which Petitioner attempted to show that the firearm
he possessed had been produced in New Jersey and had therefore not been entered into interstate
commerce. (Docket No. 17-5083 at ECF No. 28.) Judge Hillman dismissed that motion on
October 15, 2020, as the motion was in fact a second or successive motion to vacate sentence
brought without leave of the Court of Appeals and because Petitioner had failed to provide any
new evidence proving that the firearm in question was manufactured and sold in New Jersey
without entering interstate commerce. (Docket No. 17-5083 at ECF No. 30.)
Petitioner thereafter filed his current habeas petition. (ECF No. 1.) In his petition,
Petitioner argues that he is actually innocent of his § 922(g) conviction in light of the Supreme
Court’s decision in Rehaif v. United States, --- U.S. ---, 139 S. Ct. 2191 (2019), as he did not
explicitly admit to knowing he was a felon at the time he possessed a firearm. (Id. at 12.) Petitioner
also attempts to reiterate his dismissed claim that he “thought” he was allowed to possess the gun
because he believes that the gun he possessed was made and sold in New Jersey. (Id. at 13.)
Petitioner bases this argument entirely on an ATF firearms trace summary which details only that
the gun was recovered from Petitioner in New Jersey in 2016, and was purchased in New Jersey
by another individual in New Jersey in 1986 from a gun dealer who received the firearm in 1986.
(Id. at 20.) that document does not detail where the gun was made, or from where it was shipped
to this dealer. (Id.) This document thus does not establish that the firearm was made in New
Jersey,1 only that it was shipped to a dealer in this state in April 1986. (Id.)
Following the filing of the Government’s answer in this matter, Petitioner filed a reply
brief. (ECF No. 5.) In that reply, Petitioner attempts to shift his claim, arguing that his state court
convictions cannot support a § 922(g) conviction because he was not personally sentenced to over
a year in prison, and therefore does not believe his offenses were punishable by more than one
year. (Id. at 2-4.) Petitioner’s claims, however, are undercut by the very documents he submitted
which indicate that New Jersey itself clearly identified his 2008 and 2014 crimes of conviction as
felonies. (ECF No. 1 at 16-18.)
II. LEGAL STANDARD
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989
III. DISCUSSION
In his habeas petition, Petitioner contends that he is “actually innocent” of the possession
of a weapon by a convicted felon charge to which he pled guilty because his plea colloquy did not
contain an explicit recognition that Petitioner knew he was a convicted felon at the time he
possessed the firearm in question in violation of the Supreme Court’s holding in Rehaif. In Rehaif,
the Supreme Court held that, in order to be found guilty of being a prohibited person in possession
1 The Court notes that the manufacturer, Smith & Wesson, is headquartered in Massachusetts,
and there is nothing in the record to suggest that the firearm in question was produced within
of a firearm in violation of 18 U.S.C. § 922(g), the Government must show that a criminal
defendant knew that he fell into one of the categories of people barred from possessing a firearm
under the statute, such as an individual who was previously convicted of a felony, at the time that
he knowingly possessed a firearm. 139 S. Ct. at 2194. Rehaif, however, “did not graft onto §
922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he
was unaware of this provision of the United States Code.” Guerrero v. Quay, No. 20-39, 2020
WL 1330667, at *4 (M.D. Pa. Mar. 23, 2020) (quoting United States v. Bowens, 938 F.3d 790, 797
(6th Cir. 2019)). A petitioner will not be entitled to relief under Rehaif unless he can show that he
was actually prejudiced by the alleged error – which in the case of a guilty plea requires a showing
that “there is a reasonable probability that he would have gone to trial rather than plead guilty” had
he known of the Rehaif knowledge element. Greer v. United States, --- U.S. ---, ---, 141 S. Ct.
2090, 2098 (2021). Demonstrating such prejudice “will be difficult for most convicted felons for
one simple reason: Convicted felons typically know that they’re convicted felons.” Id. (quoting
United States v. Lavalais, 960 F.3d 180, 184 (2020)).
Assuming arguendo that Petitioner may pursue his Rehaif claim in this § 2241 habeas
matter,2 he cannot show that he was prejudiced by the alleged Rehaif error. In his plea agreement,
2 Generally, a federal prisoner seeking to challenge his conviction or sentence must do so through
“a motion filed under 28 U.S.C. § 2255 in the sentencing court.” Rodriguez v. Warden Lewisburg
USP, 645 F. App’x 110, 112 (3d Cir. 2016) (citing Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002)). A prisoner may instead challenge his conviction through a § 2241 petition filed
in his district of confinement, however, when he can show that the remedy available through a §
2255 motion is inadequate or ineffective to test the legality of his detention. Id.; see also In re
Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). The § 2255 remedy will only be inadequate
“where the petitioner demonstrates that some limitation of scope or procedure would prevent the
petitioner from receiving adequate adjudication of his or her claims under § 2255. This exception
is extremely narrow and applies only in rare circumstances.” Concepcion v. Zichefoose, 442 F.
App’x 622, 623 (3d Cir. 2011); Okereke, 307 F.3d at 120-21; Dorsainvil, 119 F.3d at 251-52. The
§ 2255 remedy will not be inadequate or ineffective merely because the petitioner cannot meet that
statute’s gatekeeping requirements, and will instead be inadequate only in the rare circumstances
Petitioner explicitly stipulated that he had previously been convicted of “at least two felony
convictions” including possession of controlled dangerous substance offenses, all of which were
punishable by more than a year in prison, in New Jersey in 2008 and 2014. (See Docket No. 16-
397 at ECF No. 37 at 7.) Although Petitioner asserts that he now does not believe that his prior
crimes were felonies as he did not himself receive a punishment of over a year in jail, that claim
is both belied by the documents he himself submits – all of which identify his crimes as “felony
conviction[s],” and New Jersey law, which provides that third degree crimes, such as those
Petitioner committed are punishable with a term of imprisonment up to five years. See N.J. Stat.
Ann. § 2C:43-6(a)(3). That Petitioner’s drug crimes were felonies is therefore beyond doubt. See
18 U.S.C. § 922(g)(1) (prohibiting possession of a firearm by anyone who “has been convicted . .
. of a crime punishable by imprisonment for a term exceeding one year,” emphasis added).
The question, then, is whether Petitioner has presented any evidence to show that, had he
known that the Government was required to prove he knew he was a felon, there is a reasonable
probability that he would have gone to trial rather than plead guilty. Greer, 141 S. Ct. at 2098. A
petitioner cannot make out such a claim unless he presents, at the very least, proposed evidence he
may have presented which would suggest that he did not know he was a felon when he possessed
the firearm, as in the absence of such evidence even a jury “will usually find that a defendant knew
he was a felon based on the fact that he was a felon.” Id. at 2097-98. In his habeas petition,
conduct has been rendered non-criminal and the petitioner was deprived of a previous opportunity
to raise a challenge on that basis. Dorsainvil, 119 F.3d at 251-52. The Government in this matter
appears to assume that Petitioner’s claim, if it had merit, would fit within this Dorsainvil exception
insomuch as he had no earlier opportunity to raise his claim in his prior § 2255 matter insomuch
as his one year limitations period had run before Rehaif was decided. Because the Government
does not clearly argue that Petitioner’s claim is barred, and because Petitioner’s claim is without
merit as discussed in this opinion, this Court will likewise assume, without deciding, that
Petitioner’s innocence claim based on Rehaif would fit within the Dorsainvil exception if it were
Petitioner presents no such evidence – his filings instead show that he pled guilty to several
felonies, and that, at least at the time he pled guilty, he fully believed those crimes to be felonies.
Indeed, in his reply – the only place where he attempts to present evidence to counter the inevitable
conclusion that he knew himself to be a felon, Petitioner does not argue that he did not know of
his felon status, but instead attempts to argue, after the fact, that his state court crimes of conviction
should not qualify as crimes “punishable” by more than a year because he did not receive a multi-
year sentence. Petitioner has thus presented no evidence other than conclusory allegations that, at
the time he possessed the gun, he did not know that he was a felon.
Indeed, Petitioner’s habeas petition undercuts his argument even further. In his arguing
that the gun he possessed did not enter interstate commerce, Petitioner directly asserts that “he
thought it was legal for him to possess a firearm due to the fact that [he believed] the gun [he]
possessed . . . was made in New Jersey.”3 (ECF No. 1 at 12-13.) This assertion inherently indicates
that Petitioner knew he was prohibited from carrying a firearm that had entered interstate
commerce, but believed he was safe because he had discovered a “loophole” in the statute. In light
of the “substantial evidence” that Petitioner knew that he was a felon in light of his convictions,
Greer, 141 S. Ct. at 2096-97, and Petitioner’s own submissions’ indication that he was aware of
the prohibition but believed that he had found a loophole, Petitioner has failed to present evidence
sufficient to indicate that he was prejudiced by the alleged Rehaif error in his case. Petitioner’s
Rehaif claim must therefore be denied.
To the extent Petitioner is attempting to reassert his claim, previously dismissed in his §
2255 matter, that he believes the gun he possessed did not enter interstate commerce prior to his
3 There is no requirement in a § 922(g) case that a Petitioner know that the gun in question was
in interstate commerce, so Petitioner’s mistaken belief that the gun in question was made and
sold solely in New Jersey and his belief that he had therefore evaded federal restrictions is
possession of the weapon based on a misreading of the ATF form he has submitted, this Court has
no jurisdiction to address that claim as it does not fall within the Dorsainvil exception as it could
have been raised any time prior to or after his guilty plea and is a claim that must therefore be
raised in a § 2255 proceeding. See Okereke, 307 F.3d at 120. That Petitioner cannot make use of
§ 2255 as such a claim may be time barred or subject to the bar on second or successive § 2255
motions is of no moment. Id. As this Court does not have jurisdiction over Petitioner’s claim in
this § 2241 matter, and in turn lacks jurisdiction as it is a successive § 2255 claim brought without
leave for the reasons previously expressed by Judge Hillman in dismissing Petitioner’s
reconsideration motion, see Nelson v. United States, No. 17-5083, 2020 U.S. Dist. LEXIS 191090,
at *6-8 (D.N.J. Oct. 15, 2020), that claim is dismissed without prejudice.4
Finally, the Court notes that Petitioner filed in this matter a motion to compel. (ECF No.
6.) It is not clear what it is Petitioner wishes to compel via his motion, which was filed after he
filed both his petition and reply, and well after he had already received the Government’s motion.
Given the briefing status at the time it was filed, this Court infers Petitioner to be requesting a
decision on his habeas petition. As this Court has now decided the claims presented in that petition,
Petitioner’s motion is denied as moot.
4 Petitioner’s claim is, in any event, without merit – nothing he has submitted suggests that the
gun in question was made in New Jersey, only that it was sold in New Jersey after it was shipped
to the dealer in 1986. Petitioner has failed in any way to show that the gun was not placed in
IV. CONCLUSION
For the reasons expressed above, Petitioner’s Rehaif claim is DENIED, Petitioner’s
jurisdictional claim is DISMISSED, and Petitioner’s motion (ECF No. 6) is DENIED as moot.
An order consistent with this Opinion will be entered.
Hon. Karen M. Williams,
United States District Judge