NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-35633

Plaintiff-Appellee, D.C. No. 1:13-cr-00098-SPW-1 v.

MACK EDWARD HARRIS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted July 6, 2022** Portland, Oregon

Before: WATFORD, R. NELSON, and LEE, Circuit Judges.

Mack Edward Harris appeals from the district court’s order dismissing his

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. We

affirm.

1. The district court correctly concluded that Harris’s claim under Rehaif v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 4

United States, 139 S. Ct. 2191 (2019), was procedurally defaulted and that, while

he has established cause to excuse his procedural default, he has not shown actual

prejudice. See United States v. Frady, 456 U.S. 152, 167 (1982).

Rehaif requires the government to prove beyond a reasonable doubt that a

defendant knew he had the relevant status under 18 U.S.C. § 922(g). See 139 S.

Ct. at 2200. For Harris, that means proof that he knew he had been convicted of a

crime punishable by more than one year in prison and a misdemeanor crime of

domestic violence. 18 U.S.C. § 922(g)(1), (9). Evidence of a defendant’s

knowledge can be either direct or circumstantial, and Harris’s criminal history

provides strong circumstantial evidence that he was aware of his status under

§ 922(g)(1) and (g)(9). See United States v. Pollard, 20 F.4th 1252, 1256 (9th Cir.

2021).

With respect to his § 922(g)(1) conviction, Harris had seven prior felony

convictions, and he was actually sentenced to more than one year in prison twice.

At trial, the government also introduced a signed 2004 guilty plea in which Harris

acknowledged that he was pleading guilty to two felonies. While this

acknowledgement is not conclusive of Harris’s awareness of his status under

§ 922(g)(1), it likewise constitutes strong circumstantial evidence. See United

States v. Werle, 35 F.4th 1195, 1206 (9th Cir. 2022). With respect to his

§ 922(g)(9) conviction, Harris had at least nine prior convictions for misdemeanor Page 3 of 4

domestic violence offenses.

Harris has not identified any “objective basis in the record” that might have

led a jury to believe, in spite of this evidence, that he was unaware he had been

convicted of a crime punishable by more than one year in prison and a

misdemeanor crime of domestic violence. Id. at 1207 n.7. Thus, Harris has failed

to show that the Rehaif error “worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S.

at 170.

2. The district court correctly concluded that Harris’s double jeopardy claim

is time-barred. Harris’s convictions became final on October 2, 2017, and his

§ 2255 motion was not filed within the one-year limitations period. See 28 U.S.C.

§ 2255(f). Harris argues that his double jeopardy claim is timely because it is

intertwined with his Rehaif claim and was filed within one year of the Supreme

Court’s decision in that case. But Harris’s double jeopardy claim does not depend

on his Rehaif claim, and the former claim has been available since at least 2014.

See United States v. Mavromatis, 769 F.3d 1194, 1195 (9th Cir. 2014).

Harris also argues that double jeopardy claims should be categorically

exempt from § 2255’s limitations period. He contends that such claims are exempt

from § 2254’s exhaustion requirement and that the same type of exception should

apply here. There is, however, no double jeopardy exception to § 2254(b)(1)(A). Page 4 of 4

While a § 2254 petitioner need not wait for a final state court judgment to bring a

double jeopardy claim, the petitioner must still exhaust whatever state remedies are

available. See Greyson v. Kellam, 937 F.2d 1409, 1412–13 (9th Cir. 1991). Harris

offers no other basis for his proposed double jeopardy exception to § 2255(f).

AFFIRMED.