Slocum v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

WILLIE SLOCUM, JR.,

Movant,

v. Civil Case No. 2:17-cv-03759

Criminal Case No. 2:13-cr-00274

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending are movant Willie Slocum, Jr.’s 28 U.S.C.

§ 2255 motion to vacate, set aside or correct sentence by a

person in federal custody (ECF No. 165), filed August 4, 2017,

and assorted related motions.

I. Background

This action was previously referred to United States

Magistrate Judge Cheryl A. Eifert for submission to the court of

her Proposed Findings and Recommendation (“PF&R”) for

disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The

respondent filed an answer and a motion to dismiss on December

21, 2017 (ECF No. 175), and the movant filed a motion for

summary judgment on February 2, 2018 (ECF No. 176). On May 6,

2019, the magistrate judge entered her PF&R recommending that

the court deny the movant’s motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255; deny the

movant’s motion for summary judgment; grant the respondent’s

motion to dismiss; and dismiss this civil action with prejudice.

ECF No. 193 (“May 6, 2019 PF&R”). The movant filed timely

objections to the May 6, 2019 PF&R on May 28, 2019, after

receiving an extension. ECF No. 196.

Before this court reviewed the objections, the movant

filed: (1) a supplemental motion to dismiss the second

superseding indictment (“the indictment”) in light of Rehaif1

(ECF No. 197); (2) a letter-form motion to take notice and apply

Gamble2 to his case (ECF No. 198); (3) a supplemental motion to

amend his argument regarding 18 U.S.C. § 922(g)(1) claims in

light of Rehaif (ECF No. 199); (4) a motion for the court to

take notice of two recent court decisions under Rehaif (ECF No.

201); and (5) a motion for leave to file an “answer” beyond the

page limit to the response to his supplemental motion (ECF No.

1 Rehaif v. United States, 139 S. Ct. 2191 (2019).

2 Gamble v. United States, 139 S. Ct. 1960 (2019).

210).3 The court referred the motions to United States

Magistrate Judge Cheryl A. Eifert pursuant to 28 U.S.C. §

636(b)(1)(B). On February 28, 2020, the magistrate judge

entered her PF&R recommending that the court: (1) grant the

movant’s motion for leave to file the attached answer beyond

page limit; (2) grant the respondent’s request for dismissal;

(3) deny the movant’s supplemental motion to dismiss the

indictment in light of Rehaif; (4) deny the movant’s letter-form

motion to take notice and apply Gamble to his case; (5) deny the

movant’s supplemental motion to amend his argument regarding §

922(g)(1) claims in light of Rehaif; and (6) deny the movant’s

motion for the court to take notice of two recent court

decisions under Rehaif. ECF No. 211 (“February 28, 2020 PF&R”).

The movant timely filed objections to the February 28, 2020 PF&R

on March 11, 2020. ECF No. 212.

The respondent has neither objected nor responded to

either of the movant’s objections.

3 This last motion is, in effect, a motion for leave to file a

reply brief beyond the page limit that addresses the arguments

raised by the United States in its response to his supplemental

motion. The movant attached a copy of his proposed reply to his

motion for leave. ECF No. 210-1. The Court has considered the

substance of the proposed reply as it relates to the movant’s

claims.

II. Legal Standard

Upon an objection, the court reviews a PF&R de novo.

Specifically, “[t]he Federal Magistrates Act requires a district

court to ‘make a de novo determination of those portions of the

[magistrate judge’s] report or specified proposed findings or

recommendations to which objection is made.’” Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).

III. May 6, 2019 PF&R

The movant makes eighteen objections to the magistrate

judge’s May 6, 2019 PF&R. First, the movant objects to the

magistrate judge’s finding that an evidentiary hearing is not

required. ECF No. 196, at 1. The movant argues that it would

benefit the court to hold an evidentiary hearing to receive

testimony from the movant’s previous attorneys regarding their

litigation strategy and alleged failure to make certain

arguments. Id. at 2-3.

“Unless it is clear from the pleadings and the files

and records that the prisoner is entitled to no relief, the

statute makes a hearing mandatory.” Raines v. United States,

423 F.2d 526, 529 (4th Cir. 1970). Here, after conducting a

thorough examination of the movant’s 28 U.S.C. § 2255 petition

and finding that the movant is clearly not entitled to relief,

the magistrate judge correctly concluded that there is no basis

in the record for an evidentiary hearing.

Second, the movant objects to the magistrate judge’s

finding that the United States did not violate the Tenth

Amendment of the United States Constitution by charging the

movant with conspiracy to distribute controlled substances. ECF

No. 196, at 4. The movant again argues that the United States

charged him with conspiracy to distribute controlled substances,

when at most, he dispensed them. Id. However, the magistrate

judge fully explored this argument in the PF&R. Under the

statutory definitions, “dispensing” applies when an individual

delivers controlled substances “pursuant to the lawful order of,

a practitioner[.]” 21 U.S.C. § 802(10). In this case, the

magistrate judge properly concluded that the movant cannot be

charged with “dispensing” a controlled substance, regardless of

whether or not “dispensing” can only apply to a practitioner,

because “he was not charged with delivering drugs pursuant to

any lawful authority, fraudulent or otherwise.” ECF No. 193, at

17.

Third, the movant objects to the magistrate judge’s

finding that movant’s counsel was not ineffective for failing to

challenge Counts I and II for violating Braverman.4 ECF No. 196,

at 6. Specifically, the movant claims that Supreme Court

precedent forecloses a defendant from being charged with two

counts of conspiracy based on one unlawful act because it would

violate an individual’s Fifth Amendment guarantee against double

jeopardy. Id. at 7. The movant asserts that under Braverman,

his indictment is multiplicitous because there are multiple

counts of conspiracy under the same conspiracy statute when only

one agreement is alleged. Id. at 9-12.

“The double jeopardy clause clearly prohibits the

division of a single criminal conspiracy into multiple

violations of a conspiracy statute.” United States v.

MacDougall, 790 F.2d 1135, 1144 (4th Cir. 1986) (citing

Braverman, 317 U.S. at 52-53). “The traditional test used to

determine whether separate indictments charge the same offense

is the Blockburger ‘same evidence’ test.” Id. (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). The

“same evidence” test determines “whether each provision requires

proof of a fact which the other does not.” Blockburger, 284

4 The court assumes that the movant is referencing Braverman v.

United States, 317 U.S. 49 (1942).

U.S. at 304. “The same evidence test, however, is of limited

value in deciding double jeopardy claims raised with respect to

successive conspiracy prosecutions.” MacDougall, 790 F. 2d at

1144. The Fourth Circuit has held that a flexible “totality of

the circumstances” test is a valid approach that considers five

factors: “(1) time periods in which the alleged activities of

the conspiracy occurred; (2) the statutory offenses charged in

the indictments; (3) the places where the alleged activities

occurred; (4) the persons acting as co-conspirators; and (5) the

overt acts or any other descriptions of the offenses charged

which indicate the nature and scope of the activities to be

prosecuted.” Id.

Here, both conspiracy counts contain the same

location, dates, and potential co-conspirators. However, the

controlled substance that the movant is charged with conspiring

to distribute is heroin in Count I and oxycodone in Count II.

ECF No. 29, at 1-2. The magistrate judge correctly concluded

that the heroin and oxycodone conspiracy offenses are distinct

and do not violate the double jeopardy clause. See United

States v. Ivey, 722 F. App’x 336, 336 (4th Cir. 2018) (“Here,

the crack cocaine and powder cocaine conspiracy offenses are

distinct under Blockburger because each requires an element that

the other does not: namely, the identity of the drug.”

(citations omitted)).5 Moreover, when considering the totality

of the circumstances, including the movant’s extensive

operations and network, a jury could reasonably find that the

movant engaged in separate conspiracies to distribute heroin and

oxycodone. Based on the foregoing, it was not objectively

deficient for movant’s counsel to not raise a double jeopardy

challenge.

Fourth, the movant objects to the magistrate judge’s

finding that the indictment properly stated the elements of

conspiracy for Counts I and II. ECF No. 196, at 17. The

magistrate judge cited to United States v. Wilson, 135 F.3d 291

(4th Cir. 1998), when listing the elements necessary to prove a

conspiracy to commit an offense under § 841(a). ECF No. 193, at

32. The movant argues that Wilson does not apply to his case

because he was “not charged with the offense of possession with

intent of a controlled substance.” ECF No. 196, at 17.

Inasmuch as Wilson does lay out the proper elements for a drug

conspiracy conviction, the objection is without merit.

5 As the movant notes, unpublished opinions are not binding

precedent in the Fourth Circuit. See Hogan v. Carter, 85 F.3d

1113, 1118 (4th Cir. 1996); 4th Cir. R. 36(c). Nevertheless,

the court finds the well-considered rationale offered by Ivey to

be helpful.

Fifth, the movant objects to the magistrate judge’s

finding that his counsel was not ineffective for declining to

argue that the indictment was vaguely worded. ECF No. 196, at

18. The movant states that the elements of conspiracy in the

indictment are convoluted and misplaced; however, the movant

does not offer any further explanation. Id. As discussed by

the magistrate judge, an indictment under 21 U.S.C. § 846 is

sufficient if it “alleges a conspiracy to distribute drugs,

identifies the time period in which the conspiracy allegedly

operated, and specifies the statute allegedly violated.” United

States v. Black, 133 F.3d 917, at *1 (4th Cir. 1997)

(unpublished). Here, since the conspiracy counts in the

movant’s indictment alleged a conspiracy to distribute the

controlled substances heroin and oxycodone, identified the time

period of the alleged conspiracy, and specified the statute

allegedly violated, § 841(a)(1), the movant’s objection is

overruled.

Sixth, the movant objects to the magistrate judge’s

finding his counsel was not ineffective for declining to argue

that Count V of the indictment was constitutionally deficient.

ECF No. 196, at 18-19. The movant argues that the indictment

must state the official proceeding that was the object of the

movant’s witness interference. Id. Inasmuch as the movant does

not present any new arguments of which the magistrate judge did

not properly dispose, this objection is overruled.

Seventh, the movant objects to the magistrate judge’s

finding that his counsel was not ineffective for agreeing to

stipulate to the interstate commerce element of the firearm

charges because of the pending Rehaif decision. ECF No. 196, at

19. Specifically, the movant “objects to the Magistrate

[Judge’s] suggestions that expert testimony could have

established that Slocum knew that the ostensible gun[s]

[a]ffected commerce.” Id. (second alteration in original).

As discussed in further detail below, Rehaif 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.” 139 S. Ct. at

2200.6 Rehaif did not, however, hold that the government must

prove that a defendant knew he possessed a firearm in or

affecting commerce in a prosecution under § 922(g). Although a

§ 922(g) conviction requires that a firearm in question be

possessed “in or affecting commerce,” the Supreme Court

explicitly noted that this is a jurisdictional element to which

6 The court will subsequently refer to the latter element as

“knowledge of status.”

scienter does not apply. Rehaif, 139 S. Ct. at 2196. Thus,

this objection is overruled.

Eighth, the movant objects to the magistrate judge’s

finding that his counsel was not ineffective for failing to

argue that § 846 is void for vagueness. ECF No. 196, at 19.

The movant argues that after Sessions v. Dimaya, 138 S. Ct. 1204

(2018), the statute can be challenged as vague. Id. In Dimaya,

the Supreme Court held that 18 U.S.C. § 16’s definition of a

crime of violence, as incorporated in the Immigration and

Nationality Act, is unconstitutionally vague. 138 S. Ct. at

1207. Since this holding does not affect the movant’s case, the

objection is overruled.

The movant’s ninth objection is to the magistrate

judge’s finding that his counsel was not ineffective for failing

to advise the movant that the respondent allegedly amended the

indictment by presenting evidence related to the charge of

“distributing” a controlled substance rather than “dispensing.”

ECF No. 196, at 20. As noted previously, the magistrate judge

accurately found that the movant was properly charged and

convicted of “distributing” drugs, not “dispensing” drugs, so

this objection is overruled.

The movant’s tenth objection is to the magistrate

judge’s finding that his counsel was not ineffective for failing

to object to the jury instructions. Id. Specifically, the

movant argues that the jury instructions should have included a

drug-quantity element and an element that the defendant had

knowledge of the drug involved. Id.

In Alleyne v. United States, 570 U.S. 99, 116 (2013),

the Supreme Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury,” a holding

which applies to Slocum’s conviction on Count One, conspiracy to

distribute more than one kilogram of heroin. And under 21

U.S.C. § 841(a)(1), the government must prove that the defendant

“knew he was dealing with a ‘controlled substance.’” McFadden

v. United States, 576 U.S. 186, 188-89 (2015). The “knowledge

requirement may be met by showing that the defendant knew he

possessed a substance listed on the schedules, even if he did

not know which substance it was.” Id. at 192. And as the

magistrate judge noted, ECF No. 193, at 46, McFadden also

provides that “[t]he knowledge requirement may [] be met by

showing that the defendant knew the identity of the substance he

possessed.” 186 U.S. at 192. “Because ignorance of the law is

typically no defense to criminal prosecution, [a] defendant [who

knows the identity of the substance he possessed] would also be

guilty of knowingly distributing ‘a controlled substance.’” Id.

(internal citation omitted).

In the movant’s case, the jury was instructed as

follows:

What the evidence in the case must show beyond a

reasonable doubt as to each Count One and Count Two in

order for the defendant to be convicted of that

particular count, and it must be so shown

independently of each other, is the following:

First: That two or more persons, in some way or

manner, positively or tacitly, came to a mutual

understanding to try to accomplish a common and

unlawful plan, as charged in each Counts One and Two

of the indictment.

. . .

The second essential element of each of those counts

is: That the object of the conspiracy of which is

charged in Count One involved the distribution of more

than 1 kilogram of heroin; and, separately and

independently, that the object of the conspiracy

charged in Count Two involved distribution of a

quantity of Oxycodone, also known as Roxicodone;

And lastly, the third essential element is: That the

defendant willfully became a member of that conspiracy

that is under consideration, as they will be by you

separately, in Counts One and Two.

. . .

Let me note to you, intent is an element of the

offense of conspiracy. For the crime of conspiracy to

be proved, there must be evidence sufficient to

warrant belief beyond a reasonable doubt that the

defendant intentionally entered into an agreement to

do an illegal act with the intention of consummating

that act.

ECF No. 148, at 971:23-973:15. As the magistrate judge found,

“[t]he jury instructions [] appropriately addressed the rule

that a conviction under the CSA must establish the defendant was

aware he was distributing a controlled substance in the quantity

alleged.” ECF No. 193, at 47. The court complied with McFadden

and Alleyne. Accordingly, the tenth objection is overruled.

The movant’s eleventh objection is to the magistrate

judge’s interpretation of Southern Union Co. v. United States,

567 U.S. 343 (2012). ECF No. 196, at 23. The movant argues

that under Southern Union Co., it is “unconstitutional to remove

from the jury the specific dates that corrspond [sic] to the

specific amounts of drugs.” Id. The magistrate judge found

that Southern Union Co. does not apply to this case. ECF No.

193, at 49. After reviewing the applicable law, the court

agrees with the magistrate judge’s interpretation, and this

objection is overruled.

The movant’s twelfth objection is to the magistrate

judge’s finding that his counsel was not ineffective for failing

to convince the court of his Collins7 argument. ECF No. 196, at

24. The movant argues that the jury instructions should have

directly attributed a specific drug quantity to the movant. Id.

7 United States v. Collins, 415 F.3d 304 (4th Cir. 2005).

The movant does not present any new argument that the magistrate

judge did not consider in the PF&R. The court agrees with the

magistrate judge’s analysis of the Collins argument and would

emphasize that the movant’s counsel actually submitted a

proposed jury instruction that accounted for the ruling in

Collins and specifically cited to that case. ECF No. 74, at 26.

The court accordingly finds that the performance of the movant’s

counsel concerning this issue was not deficient under the

standard announced in Strickland v. Washington, 466 U.S. 668

(1984). Thus, this objection is overruled.

The movant’s thirteenth objection is to the magistrate

judge’s finding that his counsel properly tested the

government’s case. ECF No. 196, at 26. The movant reiterates

arguments previously discussed and disposed of, such as his

counsel failing to identify the official proceeding or request

the correct jury instructions. Id. Inasmuch as the movant does

not present new arguments, this objection is overruled.

In the fourteenth objection, the movant objects to the

magistrate judge’s finding that his counsel was not ineffective

for failing to argue a “defendant-specific” approach. Id. at

27. Since the court agrees with the magistrate judge that the

movant is reframing the Collins argument, which was discussed

previously, the objection is overruled.

The movant’s fifteenth objection is to the magistrate

judge’s finding that he qualifies as a career offender. Id.

The movant argues that the magistrate judge improperly analyzed

this argument under Johnson v. United States, 135 S. Ct. 2551

(2015). Id. The movant states that his claim rests entirely on

Mathis v. United States, 136 S. Ct. 2243 (2016), to argue that

he never qualified as a career offender, and since the

magistrate judge misidentified the foundation of the movant’s

claim, the court cannot adopt the magistrate judge’s PF&R. Id.

at 27-28.

The magistrate judge recognized the holdings of

Johnson and Mathis to discuss the movant’s argument that “his

previous felonies cannot be considered ‘violent felonies’ and

his criminal history category placement is invalid as it was

based on a finding he had committed a crime of violence under

the Guidelines definition.” ECF No. 193, at 58. In Johnson,

the court held that the residual clause in the Armed Career

Criminal Act of 1984 (“ACCA”) was unconstitutionally vague.

Johnson, 135 S. Ct. at 2563. In Mathis, the Supreme Court held

that when the elements of the offense are broader than those of

the generic offense, a defendant’s conviction under that law

cannot give rise to an ACCA sentence enhancement. Mathis, 136

S. Ct. at 2257. The magistrate judge properly dismissed the

argument by relying on Beckles v. United States, 137 S. Ct. 886

(2017). In Beckles, the Supreme Court held that the “advisory

Guidelines are not subject to vagueness challenges under the Due

Process Clause.” Id. at 890. Since the Supreme Court’s

decisions regarding the ACCA’s residual clause being void for

vagueness do not apply to the career offender findings under the

advisory Guidelines that the movant is challenging, the

objection is overruled.

The movant’s seventeenth objection is to the

magistrate judge’s finding that the movant’s appellate attorney

did not provide ineffective assistance of counsel by not raising

all claims asserted by the movant. The only argument the movant

specifies in the objection is the defendant-specific argument.

Inasmuch as the court disposed of the defendant-specific

argument previously, this objection is also overruled.

The movant entitles the eighteenth and final objection

as: “In Slocum’s arguments he argued that each of his claims can

be free-standing because he has made every attempt to avoid the

Odyssean twist of the AEDPA, including Scylla of the

second-or-successive bars and the Charydbis [sic] of any

statute-of-limitations.” ECF No. 196, at 29. In the body of

the objection, the movant argues, without explanation, that he

has established both cause and prejudice for his “per se

sentencing matters.” Id. The court assumes that the movant

refers to the cause and prejudice standard for overcoming

procedural defaults of arguments raised for the first time in §

2255 motions. See, e.g., United States v. Fugit, 703 F.3d 248,

253 (4th Cir. 2012). Since the movant is unable to satisfy this

standard under any of his claims addressed in the May 6, 2019

PF&R, this objection is also overruled.8

IV. February 28, 2020 PF&R

The February 28, 2020 PF&R, as well as the objections

thereto, relate to issues that fall into two broad categories:

those that concern the Supreme Court’s decision in Rehaif and

those that do not. The court will review the latter objections

de novo. In light of recent caselaw, the court will review all

of the movant’s Rehaif arguments de novo.

A. Issues Unrelated to Rehaif

The court initially turns to the objections that do

not concern Rehaif. First, the movant objects to the magistrate

judge’s finding that the holding in Gamble does not entitle him

to relief. ECF No. 212, at 19. Specifically, the movant claims

8 In the succeeding section of this memorandum opinion and

order, the court addresses the procedural default of the

movant’s Rehaif arguments raised after his May 28, 2019

objections to the May 6, 2019 PF&R.

that the court in Gamble held that an “‘offence’ is defined by a

law . . . [s]o where there are two sovereigns, there are two

laws, and two ‘offences.’” Id. Based on this reasoning, the

movant argues that since Counts I and II of the indictment are

both under the same law, 21 U.S.C. § 846, they amount to the

same offense, which violates the double jeopardy clause of the

Fifth Amendment to the United States Constitution. Id.

Count I charged the movant with conspiracy to

distribute more than one kilogram of heroin. ECF No. 29, at 1.

Count II charged the movant with conspiracy to distribute a

quantity of oxycodone. Id. at 2. As discussed previously, the

counts are two distinct offenses, so the double jeopardy clause

is not violated. Inasmuch as the holding in Gamble affects only

the dual-sovereignty doctrine, this objection is overruled.

Second, the movant objects to the magistrate judge’s

finding that Federal Rule of Criminal Procedure 29 (“Rule 29”)

does not entitle the movant to relief. ECF No. 212, at 21. The

movant argues that since the United States did not address the

movant’s argument regarding Rule 29, the United States waived

the argument. Id. Under Rule 29, “[a]fter the government

closes its evidence or after the close of all the evidence, the

court on the defendant’s motion must enter a judgment of

acquittal of any offense for which the evidence is insufficient

to sustain a conviction.” Fed. R. Crim. P. 29(a). “A defendant

may move for a judgment of acquittal, or renew such a motion,

within 14 days after a guilty verdict[.]” Fed. R. Crim. P.

29(c)(1). The magistrate judge concluded that since the movant

filed a § 2255 motion years after his guilty verdict, Rule 29 is

not applicable. The court agrees, and this objection is

overruled.

Insofar as the February 28, 2020 PF&R addresses issues

that are not related to the movant’s Rehaif arguments, the PF&R

is adopted and incorporated. Likewise, all objections that do

not relate to Rehaif are overruled.

B. Issues relating to Rehaif

The court now turns to the Rehaif issues raised by the

movant. The movant argues that his two § 922(g)(1) convictions

for felon in possession of a firearm should be vacated because

the two § 922(g) counts of the indictment in his case, Counts

III and IV, did not charge that he knew his status as a

convicted felon when he allegedly possessed the firearms at

issue. ECF No. 197. He primarily points to the indictment

itself, which ostensibly lacks a knowledge of status allegation,

ECF No. 29, in support of his motion. ECF No. 197, at 2. He

also indicates that he was, on the dates alleged in the

indictment, “of the belief the Second Amendment permit[ted] him

to have a firearm for protection” and asserts that the

government offered no evidence to suggest that he was not

protected by the Second Amendment. ECF No. 199, at 2. In his

most recent substantive filing, a letter submitted on September

11, 2020 after he filed objections to the February 28, 2020

PF&R, the movant also cites the Fourth Circuit decision in

United States v. Medley, 972 F.3d 399 (4th Cir. 2020), in

support of his motion to vacate. ECF No. 214.

The respondent argues that Slocum has procedurally

defaulted his Rehaif claim because he did not raise the issue of

knowledge of status at trial or on direct appeal. ECF No. 207,

at 5. Further, the respondent contends that the movant cannot

overcome the procedural default because he cannot show cause and

prejudice, actual innocence, or a miscarriage of justice. Id.

at 5-12. Specifically, the respondent states that Slocum cannot

demonstrate cause because the Rehaif claim is not novel inasmuch

as the issue was “thoroughly and repeatedly litigated in courts

of appeals over the last three decades.” Id., at 6. The

respondent also argues that the failure to argue knowledge of

status at the trial and direct appeal stages of the criminal

proceeding did not prejudice Slocum inasmuch as his total

sentence of incarceration, 360 months’ imprisonment, would

remain if the two § 922(g) charges were invalidated.9 Id., at 7-

9. The respondent offers a similar argument to claim that no

miscarriage of justice occurred. Id., at 11. Finally, the

respondent insists that Slocum cannot reasonably establish

actual innocence because the evidence in the record strongly

indicates that he knew he was a convicted felon on the dates

charged in the indictment. Id., at 9-11.

The movant replies that he can establish both “cause

and prejudice” and actual innocence. ECF No. 210-1, at 15. As

to cause, the movant argues that the knowledge of status

argument was sufficiently novel to excuse his failure to argue

the issue during trial or on direct appeal because Rehaif was “a

decision [that] overturn[s] a longstanding and widespread

practice to which [the Supreme Court] has not [previously]

spoken, but which near-unanimous body of lower court authority

has expressly approved.” Id., at 17 (quoting Reed v. Ross, 468

U.S. 1, 17 (1984)) (alterations added). The movant states that

9 Slocum received a term of 360 months’ imprisonment for his

conviction on Count I of the indictment, conspiracy to

distribute more than one kilogram of heroin. ECF No. 131, at 3.

The sentences imposed for all other charges, including the two

felon in possession charges, run concurrently with the Count I

sentence to produce a total term of incarceration of 360 months’

imprisonment. Id.

he was prejudiced by the failure of the indictment to include a

knowledge of status allegation because: (1) he was subjected to

a special assessment of $100 for each of his convictions; (2)

the unlawful § 922(g) convictions give rise to a societal

stigma; and (3) the convictions could carry other collateral

consequences, such as a delay in eligibility for parole, a

harsher sentence for future offenses under recidivist statutes,

and credibility impeachment in future legal proceedings. Id.,

at 19-22. He also argues that he was inherently prejudiced

because his substantial rights were violated when the indictment

did not allege knowledge of status. Id., at 22-24. With regard

to actual innocence, the movant asserts that his case meets the

demanding standard because he thought he had a Second Amendment

right to possess firearms on the dates alleged in the indictment

and no firearms were actually found in the case. Id., at 12,

15.

Generally, the doctrine of procedural default provides

that “claims not raised on direct appeal may not be raised on

collateral review unless the petitioner shows cause and

prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003)

(citations omitted). It “is neither a statutory nor a

constitutional requirement, but it is a doctrine adhered to by

the courts to conserve judicial resources and to respect the

law’s important interest in the finality of judgments.” Id.

Where a defendant has procedurally defaulted an argument, he can

only raise it in a collateral attack by establishing “cause and

prejudice” or “actual innocence.”10 E.g., Fugit, 703 F.3d at 253

(citing Bousley v. United States, 523 U.S. 614, 621 (1998)).

Turning first to cause and prejudice, the court finds

that the movant cannot establish either prong to overcome the

procedural default. As for cause, the Supreme Court’s decision

in Bousley is instructive. In Bousley, the habeas movant pled

guilty in 1990 to the crime of using a firearm “during and in

relation to a drug trafficking crime,” in violation of 18 U.S.C.

§ 924(c). Bousley, 523 U.S. at 616. He later challenged the

factual basis for his guilty plea in a § 2255 motion, and after

he appealed the district court’s denial of that motion, the

Supreme Court decided Bailey v. United States, 516 U.S. 137

(1995), holding that “a conviction for use of a firearm under §

924(c)(1) requires the Government to show ‘active employment of

the firearm.’” Id. at 617 (quoting Bailey, 516 U.S. at 144).

The petitioner then presented a § 2255 claim relating to this

10 “Actual innocence” is sometimes grouped with the term

“miscarriage of justice” in the procedural default context, but

in effect, the terms are interchangeable. See, e.g., United

States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (“A proper

showing of ‘actual innocence’ is sufficient to satisfy the

‘miscarriage of justice’ requirement.” (citation and internal

quotation marks omitted)).

new understanding of § 924(c)(1)’s use element to the Eighth

Circuit and, ultimately, the Supreme Court. Id. at 617-18.

The Supreme Court held, inter alia, that the

petitioner had procedurally defaulted his Bailey claim by not

raising it on direct appeal. Id. at 622. The Court rejected

the petitioner’s argument that the Bailey claim satisfied cause

for the purposes of overcoming the procedural default inasmuch

as it could not be said to have been such a novel argument that

it was not “reasonably available” to his defense counsel during

his direct appeal. Id. (citing Reed, 468 U.S. at 16). This was

so because “at the time of petitioner’s plea, the Federal

Reporters were replete with cases involving challenges to the

notion that ‘use’ is synonymous with mere ‘possession.’” Id.

(citations omitted). The Court likewise rejected the argument

that raising such a claim prior to the 1995 Bailey decision

would have been futile because “futility cannot constitute cause

if it means simply that a claim was ‘unacceptable to that

particular court at that particular time.’” Id. at 623 (quoting

Engle v. Isaac, 456 U.S. 107, 130 n. 35 (1982)).

As was the case for the petitioner in Bousley, the

movant has failed to demonstrate cause to excuse his procedural

default. The knowledge of status argument had been litigated

for years prior to the inception of the movant’s underlying

criminal proceeding and the Supreme Court’s decision in Rehaif.

See, e.g., United States v. Butler, 637 F.3d 519, 524 (5th Cir.

2011) (collecting cases); United States v. Langley, 62 F.3d 602,

605-606, 608 (4th Cir. 1995) (an en banc decision in which 4

judges of this circuit dissented by urging adoption of the

principle ultimately decreed in Rehaif). The movant nearly

acknowledges as much with a citation to then-Judge Gorsuch’s

2010 opinion in United States v. Games-Perez, 699 F.3d 1104

(10th Cir. 2010), in which the future justice advocated for a

reading of § 922(g) that requires the government to prove

knowledge of status. ECF No. 210-1, at 11 (citing Games-Perez,

699 F.3d at 1119 (Gorsuch, J., dissenting from the denial of

rehearing en banc)). The Rehaif knowledge of status argument

was not novel at the time of the movant’s trial or direct

appeal, and no futility argument grounded in prior Fourth

Circuit precedent will serve to establish cause under Bousley.

Accordingly, the court concludes that the movant has failed to

demonstrate cause to excuse his procedural default.

As for prejudice, the respondent correctly observes

that the movant’s total term of incarceration would not be

affected if the Rehaif claim could successfully overturn the §

922(g) convictions. But this argument does not address

prejudice as to the § 922(g) charges and convictions themselves.

With respect to the movant’s § 922(g) charges and convictions,

neither the indictment nor the jury instructions accounted for

the § 922(g) knowledge of status element. See ECF No. 29, at

3-4; Trial Tr., ECF No. 148, at 982:11-20.

Still, the recent Supreme Court decision in Greer v.

United States, 141 S. Ct. 2090 (2021), which was issued after

the Medley case cited by the movant, is instructive. The Greer

court heard consolidated appeals from an Eleventh Circuit case,

Greer, 798 F. App’x 483 (11th Cir. 2020), in which the

defendant, who had stipulated that he was a felon, did not

request or receive a jury instruction requiring that the jury

find that he knew he was a felon when he possessed a firearm, as

well as a Fourth Circuit case, United States v. Gary, 954 F.3d

194 (4th Cir. 2020), in which the plea colloquy did not advise

the defendant, who had admitted that he was a felon when he pled

guilty, that a jury must find that he knew he was a felon when

he possessed the firearms in question if he decided to stand

trial. 141 S. Ct. at 2097-98.

Addressing whether these failures to account for

Rehaif’s knowledge of status element constituted plain-error on

appeal, the Court held:

In felon-in-possession cases, a Rehaif error is not a

basis for plain-error relief unless the defendant

first makes a sufficient argument or representation on

appeal that he would have presented evidence at trial

that he did not in fact know he was a felon. When a

defendant advances such an argument or representation

on appeal, the court must determine whether the

defendant has carried the burden of showing a

“reasonable probability” that the outcome of the

district court proceeding would have been different.

Because Greer and Gary did not make any such argument

or representation on appeal in these cases, they have

not satisfied the plain-error test.

Id. at 2100. The Court noted that a defendant faces “an uphill

climb” to make such a showing, reasoning that “[i]f a person is

a felon, he ordinarily knows he is a felon.” Id. at 2097; see

also id. (“Felony status is simply not the kind of thing that

one forgets.”) (quoting Gary, 963 F.3d 420, 423 (Wilkinson, J.,

concurring in denial of reh’g en banc)). The defendants in

Greer could not meet this burden since:

[b]efore their respective felon-in-possession

offenses, both Greer and Gary had been convicted of

multiple felonies. Those prior convictions are

substantial evidence that they knew they were felons.

Neither defendant has ever disputed the fact of their

prior convictions. At trial, Greer stipulated to the

fact that he was a felon. And Gary admitted that he

was a felon when he pled guilty. Importantly, on

appeal, neither Greer nor Gary has argued or made a

representation that they would have presented evidence

at trial that they did not in fact know they were

felons when they possessed firearms. Therefore, Greer

cannot show that, but for the Rehaif error in the jury

instructions, there is a reasonable probability that a

jury would have acquitted him. And Gary likewise

cannot show that, but for the Rehaif error during the

plea colloquy, there is a reasonable probability that

he would have gone to trial rather than plead guilty.

Id. at 2097-98.

The Supreme Court also disagreed with several of the

defendants’ arguments pertinent to the present inquiry. First,

the Court rejected Greer’s “conten[tion] that an appellate court

may not consider information about a defendant’s prior

convictions contained in a pre-sentence report” when addressing

a plain-error Rehaif challenge, finding instead that “when an

appellate court conducts plain-error review of

a Rehaif instructional error, the court can examine relevant and

reliable information from the entire record — including

information contained in a pre-sentence report.” Id. at 2098.

Second, the Court rejected Gary’s argument, endorsed by the

Fourth Circuit below, Gary, 954 F.3d at 198, that Rehaif errors

constitute structural errors “requir[ing] automatic vacatur in

every case without regard to whether a defendant can otherwise

satisfy the plain-error test.” Greer, 141 S. Ct. at 2099-2100

(emphasis in original). The Court reasoned that “the omission

of a single element from jury instructions or the omission of a

required warning from a Rule 11 plea colloquy” are “discrete

defects in the criminal process” that do not amount to

structural errors inasmuch as “they do not ‘necessarily render a

criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.’” Id. at 2100 (emphasis

omitted) (quoting Neder v. United States, 527 U.S. 1, 9 (1999)).

The Fourth Circuit has since applied plain-error

review to a Rehaif challenge in United States v. Caldwell, ---

F.4th ----, 2021 WL 3356951 (4th Cir. Aug. 3, 2021). As is true

in this case, the defendant in Caldwell’s “indictment did not

indicate, and the jury was not instructed, that the [§ 922(g)]

charge required the government to prove that he knew he was a

felon at the time of the firearm possession.” Id. at *13

(emphasis in original). The Fourth Circuit nonetheless upheld

the defendant’s conviction in light of Greer, noting that:

the same factors that the Supreme Court found relevant

in dismissing the Rehaif challenge in Greer are

present here. Before the date of the robbery [in

connection with which, Caldwell possessed a firearm],

Caldwell had been convicted of multiple felonies. He

has never disputed the validity of these felony

convictions, and indeed, he stipulated at trial to

having had such a conviction. We also note that

Caldwell had, on several occasions, served sentences

longer than a year — including two stints of more than

five years each in federal prison — making it

virtually impossible to believe he did not know he had

been convicted of crimes punishable by such sentences.

Id. at *14.

It is also notable that several district courts within

the Fourth Circuit have applied Greer when determining that §

2255 movants could not meet the prejudice prong of the standard

for overcoming procedural defaults. See United States v.

Campbell, No. 7:15-cr-42, 2021 WL 3375721, at *8-9 (W.D. Va.

Aug. 3, 2021) (Urbanski, C.J.); United States v. Sumter, No.

3:02-cr-00499-CMC, 2021 WL 3173176, at *11-12 (D.S.C. July 27,

2021) (Currie, J.); United States v. Crawley, No. 4:15CR00001,

2021 WL 2910724, at *2-3 (W.D. Va. July 12, 2021) (Jones, J.).

And it is well-established that the cause and prejudice standard

for overcoming procedural defaults presents movants with a

greater burden than plain-error review, which was addressed in

Greer. See, e.g., United States v. Frady, 466 U.S. 152, 166-168

(1982).

When considered in light of this caselaw, the facts of

the movant’s case indicate that he cannot establish that the

Rehaif errors prejudiced him insofar as his § 922(g) convictions

are at issue. The movant stipulated at trial that he “ha[d]

been convicted of a crime punishable by imprisonment for a term

exceeding one year,” that he “is a convicted felon,” and that he

had “not had his civil rights restored to possess a firearm.”

Trial Tr., ECF No. 147, at 884:25-885:6. Indeed, the

Presentence Investigation Report indicates that the movant has

multiple felony convictions, including assault with intent to

murder and second-degree murder, for which he actually served

over eleven years in prison before his parole in 2011.

Presentence Investigation Report, ECF No. 135, at ¶¶ 130-131.

Perhaps more tellingly, he has two prior state court convictions

for “felony firearms” offenses. Id. This information in the

record overwhelmingly indicates that the movant knew of his

felon status at the relevant times alleged in the indictment.

Accordingly, the court finds that even if cause has been met,

the movant cannot demonstrate prejudice to overcome the

procedural default.

Turning to actual innocence, the movant faces a high

burden. “[A]ctual innocence means factual innocence, not mere

legal insufficiency.” Bousley, 523 U.S. at 624 (citation and

internal quotation marks omitted). “To establish actual

innocence, [a movant] must demonstrate that, ‘in light of all

the evidence,’ ‘it is more likely than not that no reasonable

juror would have convicted him.’” Id. at 623 (quoting Schlup v.

Delo, 513 U.S. 298, 327-28 (1995)).

The movant’s actual innocence arguments are similarly

unpersuasive. He has cited no new evidence to demonstrate his

innocence. Moreover, the record does not suggest that no

reasonable juror would have convicted him had the government

been required to prove knowledge of status at trial. To the

contrary, the evidence that he knew of his felon status when he

possessed the firearms is overwhelming, as indicated in the

above discussion of prejudice.

The movant attempts to refocus the court’s attention

to his claim that he “was not aware that he was in a class of

citizens prohibited from possessing a firearm” based on his

belief that he had a Second Amendment right to do so. ECF No.

210-1, at 3, 9, 11 (emphasis added). In other words, he offers

an “ignorance of the law” argument that he did not believe that

his conduct was proscribed by law.

Rehaif only recognized a knowledge of status element,

which would require, in Slocum’s case, proof that he knew he was

a convicted felon during the relevant times alleged in the

indictment. See Rehaif, 139 S. Ct. at 2200. The Rehaif court

itself distinguished this knowledge of status element from

ignorance of the law arguments. Rehaif, 139 S. Ct. at 2198.

And courts have routinely rejected the proposition that Rehaif

permits an ignorance of the law defense to § 922(g)

prosecutions. See, e.g., United States v. Boyd, 999 F.3d 171,

182 (3d Cir. 2021); United States v. Trevino, 989 F.3d 402, 405

(5th Cir. 2021); United States v. Robinson, 982 F.3d 1181, 1187

(8th Cir. 2020); United States v. Paul, 826 F. App’x 809, 813 n.

2 (11th Cir. 2020); United States v. Maez, 960 F.3d 949, 955

(7th Cir. 2020); United States v. Bowens, 938 F.3d 790, 797 (6th

Cir. 2019).

Slocum stipulated at trial that his civil rights to

possess firearms had not been restored. It is accordingly

unlikely that he believed he lawfully possessed firearms at the

time of his § 922(g) offenses or did not know that he was

prohibited from possessing those firearms. But even if the

movant held such beliefs, they would not be material to his

convictions. They do not, in any manner, suggest that he is

actually innocent of the § 922(g) offenses.11

Inasmuch as the movant has failed to demonstrate

“cause and prejudice” or actual innocence, the movant cannot

overcome the procedural default of his Rehaif claim. And having

reviewed the movant’s objections relevant to the PF&R that

addresses the Rehaif claim, the court finds no reason to excuse

the procedural default. Thus, to the extent his supplemental

filings seek substantive relief under Rehaif, those requests are

denied and corresponding objections are overruled.

V. Conclusion

Accordingly, it is ORDERED that:

1. Petitioner’s objections to both the May 6, 2019 PF&R and

the February 28, 2020 PF&R (ECF Nos. 196 and 212) be, and

they hereby are, overruled.

11 Insofar as the movant claims actual innocence because his

convictions were unconstitutional under the Second Amendment,

the court agrees with Magistrate Judge Eifert’s assessment that

this argument is without merit. See ECF No. 211, at 23; Moore

v. United States, 666 F.3d 313, 316-20 (4th Cir. 2012).

2. The magistrate judge’s PF&R entered May 6, 2019 (ECF No.

193), be, and it hereby is, adopted and incorporated in

full.

3. The respondent’s motion to dismiss (ECF No. 175), filed

December 21, 2017, be, and it hereby is, is granted.

4. The movant’s motion for summary judgment (ECF No. 176),

filed February 22, 2018, be, and it hereby is, is denied.

5. The magistrate judge’s PF&R entered February 28, 2020 (ECF

No. 211), be, and it hereby is, adopted, in part,

consistent with Sections IV and V of this memorandum

opinion and order.

6. The movant’s supplemental motion to dismiss the indictment

in light of Rehaif (ECF No. 197), filed July 11, 2019, be,

and it hereby is, denied.

7. The movant’s letter-form motion to take notice and apply

Gamble to his case (ECF No. 198), filed July 25, 2019, be,

and it hereby is, denied.

8. The movant’s supplemental motion to amend his argument

regarding § 922(g)(1) claims in light of Rehaif (ECF No.

199), filed August 15, 2019, be, and it hereby is, granted

insofar as he moves to amend his § 2255 claim in light of

Rehaif and is otherwise denied.

9. The movant’s motion for the court to take notice of two

recent court decisions under Rehaif (ECF No. 201), filed

September 18, 2019, be, and it hereby is, granted.

10. The respondent’s request for dismissal (ECF No. 207),

filed December 20, 2019, be, and it hereby is, granted.

11. The movant’s motion for leave to file the attached reply

beyond page limit (ECF No. 210), filed January 31, 2020,

be, and it hereby is, granted.

12. The movant’s motion under 28 U.S.C. § 2255 to vacate, set

aside or correct sentence by a person in federal custody

(ECF No. 165), filed August 4, 2017, be, and it hereby is,

denied, in its entirety.

13. This civil action be, and it hereby is, dismissed with

prejudice.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record, any

unrepresented parties, and the United States Magistrate Judge.

ENTER: August 20, 2021

- Bb,

Jo . Copenhaver, Jr.

Senior United States District Judge

37