1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Crim. Case No.: 3:17-cr-01026-BTM UNITED STATES OF AMERICA, Civ. Case No.: 3:19-cv-01701-BTM 12

13 v. ORDER DENYING DEFENDANT

CONTRERAS-RAMIREZ’S

14

RUBEN CONTRERAS-RAMIREZ, MOTION TO VACATE, SET

15 ASIDE, OR CORRECT SENTENCE Defendant.

UNDER 28 U.S.C. § 2255 AND

16

ISSUING A CERTIFICATE OF

17 APPEALABILITY

18 [ECF No. 324] 19 Before the Court is Defendant Ruben Contreras-Ramirez’s Motion to Vacate, 20 Set Aside, or Correct Sentence under 28. U.S.C. § 2255. (ECF No. 324.) Therein, 21 Defendant, proceeding pro se, argues that his guilty plea to a violation of 18 U.S.C. 22 § 922(g)(1) was involuntary because he did not know that his knowledge of his 23 status as a prohibited person, namely a convicted felon, at the time he possessed 24 the relevant firearm was a required element of the offense. (Id.) In support, he 25 attests that his appointed “counsel never . . . informed [him that] knowledge of 26 being a prohibited person was an essential element under [§] 922(g).” (Id. at 8.) 27 He contends that there is “no evidence in the record to satisfy the [knowledge of] 28 1 prohibited person element” and that he is “actually innocent” of the crime for which 2 he was convicted. (Id.) Finally, he asserts that had he been informed that his 3 knowledge of his prior felony conviction was required, he “would’ve proceeded to 4 trial.” (Id.) Based thereon, he argues he “was denied effective assistance of 5 counsel and due process” in violation of the Fifth and Sixth Amendments and that 6 his conviction should be vacated. (Id. at 9-13.) The Government opposes 7 Defendant’s motion. (ECF No. 329.) 8 As an initial matter, even assuming Defendant’s due process arguments are 9 not procedurally-defaulted or otherwise barred by his failure to raise them on direct 10 appeal,1 (see ECF No. 324, at 1), he expressly waived all arguments as to his 11 conviction other than ineffective assistance of counsel, (ECF No. 114, at 9). As to 12 his claims of ineffective assistance, Section 922(g)(1) makes it “unlawful for any 13 person . . . who has been convicted in any court of a crime punishable by 14 imprisonment for a term exceeding one year . . . to ship or transport in interstate 15 or foreign commerce, or possess in or affecting commerce, any firearm or 16 17 1 See Bousley v. United States, 523 U.S. 614, 621 (1998) ( “[T]he voluntariness 18 and intelligence of a guilty plea can be attacked on collateral review only if first 19 challenged on direct review.”); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them 20 on direct appeal and not showing cause and prejudice or actual innocence in 21 response to the default.”); but see Massaro v. United States, 538 U.S. 500, 503 (2003) (“[T]here is no procedural default for failure to raise an ineffective- 22 assistance claim on direct appeal.” (internal citations omitted)). Notably, while 23 Defendant conclusorily attests that he is “actually innocent,” he does not explicitly attest that he was unaware at the time he possessed the relevant firearm that he 24 was previously convicted of a crime punishable by imprisonment for a term 25 exceeding one year or otherwise explain why he is innocent of the crime of conviction. (See ECF No. 324, at 7-9; see also id. at 13 (“[i]n light of Rehaif, . . . 26 [Defendant] cannot as a legal matter have committed the alleged crime.”).) 27 Rather, he simply argues that “the government had no evidence that would satisfy the status element” and “therefore[] it[’]s more likely than not [he] would’ve 28 1 ammunition; or to receive any firearm or ammunition which has been shipped or 2 transported in interstate or foreign commerce.” 18 U.S.C. § 924(a)(2) requires that 3 violations of Section 922(g) satisfy a mens rea element, namely knowledge. Prior 4 to June 2019, the Ninth Circuit and most other Circuits were of the opinion that this 5 mens rea element applied only to the defendant’s possession of a firearm or 6 ammunition, not to his prohibited status. See, e.g., United States v. Miller, 105 7 F.3d 552, 555 (9th Cir. 1997) (We agree with the decisions from other circuits that 8 the § 924(a) knowledge requirement applies only to the possession element of § 9 922(g)(1), not to the interstate nexus or to felon status.”), overruled in part by 10 Rehaif v. United States, ___ U.S ___, 139 S. Ct. 2191 (June 21, 2019); see also 11 Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J., dissenting) (collecting cases). In Rehaif, 12 however, the Supreme Court held that this mens rea element “applies both to the 13 defendant’s conduct and to the defendant’s status” and that “the Government must 14 therefore show that the defendant knew he possessed a firearm and also that he 15 knew he had the relevant status [(e.g., that he was a felon)] when he possessed 16 it.” Rehaif, 139 S. Ct. at 2194. 17 Here, because Defendant pled guilty to the relevant charge in 2017 and 18 judgment was entered against him in December 2017, (see ECF No. 113 (consent 19 to plea before Magistrate Judge); ECF No. 114 (written plea agreement); ECF No. 20 115 (Magistrate Judge’s findings and recommendations); ECF No. 147 (order 21 accepting guilty plea); ECF No. 196 (judgment); ECF No. 326 (Rule 11 hearing 22 transcript); ECF No. 328 (sentencing hearing transcript)), the Court did not have 23 the benefit of the Supreme Court’s decision in Rehaif and thus did not advise the 24 Defendant that the Government had to prove beyond a reasonable doubt that he 25 knew he had been convicted of at least one of his four felonies at the time he 26 possessed the relevant firearm. Nor did Defendant expressly admit in his written 27 plea agreement or during the Rule 11 hearing that he knew he was a convicted 28 felon at the time he possessed the firearm. (See ECF Nos. 114 & 326.) Yet, 1 because then-binding Ninth Circuit precedent (and persuasive precedent from 2 other Circuits) did not require proof of such knowledge at the time of Defendant’s 3 plea or the entry of judgment, the Court cannot say that Defendant’s counsel was 4 ineffective in failing to advise Defendant or argue to the Court otherwise. See 5 Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] court deciding an actual 6 ineffectiveness claim must judge the reasonableness of counsel’s challenged 7 conduct on the facts of the particular case, viewed as of the time of counsel’s 8 conduct.”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (defense counsel 9 “cannot be required to anticipate [a] decision in [a] later case, because his conduct 10 must be evaluated for purposes of the performance standard of Strickland ‘as of 11 the time of counsel's conduct’” and “[a] lawyer’s zeal on behalf of his client does 12 not require him to file a motion which he knows to be meritless on the facts and 13 the law.” (quoting Strickland, 466 U.S. at 690)). 14 Moreover, because there was overwhelming evidence that Defendant knew 15 he was a felon when he possessed the firearm at issue in this case, Defendant 16 also has not shown a probability that, but for his counsel and/or the Court’s error, 17 the outcome of these proceedings would have been different. See Hill v. Lockhart, 18 474 U.S. 52, 59 (1985) (“[I]in order to satisfy the ‘prejudice’ requirement, the 19 defendant must show that there is a reasonable probability that, but for counsel’s 20 errors, he would not have pleaded guilty and would have insisted on going to trial.”) 21 Lowry, 21 F.3d at 346 (“The other element of ineffective assistance of counsel is 22 prejudice.”). While Defendant baldly attests that, had he known that knowledge of 23 prohibited status was a required element of his crime of conviction, he would have 24 proceeded to trial, he nonetheless fails to demonstrate that the Government’s 25 obligation to establish that element “would have led [Defendant’s] counsel to 26 change his recommendation as to the plea” or that a defense focused on 27 Defendant’s purported lack of knowledge of his felon status “likely would have 28 succeeded at trial.” Hill, 474 U.S. at 59-60 (“[T]hese predictions of the outcome at 1 a possible trial, where necessary, should be made objectively, without regard for 2 the idiosyncrasies of the particular decisionmaker.” (internal quotations and 3 citations omitted)); see, e.g., United States v. Benamor, 937 F.3d 1182, 1189 (9th 4 Cir. 2019) (evidence of prior felony convictions “proved beyond a reasonable doubt 5 that [the d]efendant had the knowledge required by Rehaif and that any error in 6 not instructing the jury to make such a finding did not affect [the d]efendant’s 7 substantial rights or the fairness, integrity, or public reputation of the trial.”). In 8 connection with his guilty plea, Defendant stipulated that, on or about February 27, 9 2006, he was convicted of a felony offense of importation of marijuana in violation 10 of 21 U.S.C. §§ 952 & 960, for which he was sentenced to eighteen months 11 imprisonment and three years of supervised release. (ECF No. 114, at 3; ECF No. 12 150, at 12; ECF No. 326, at 9; see also United States v. Ruben Contreras Ramirez, 13 Case No. 3:06-cr-00197-H-1, ECF Nos. 12 & 14.) Further, the Presentence Report 14 established that Defendant had been convicted of four felony offenses, including 15 assault with a deadly weapon in violation of Cal. Penal Code § 245(a)(4) in October 16 2014.2 (ECF No. 150, at 13-14.) As noted by the Supreme Court, “knowledge can 17 be inferred from circumstantial evidence,” Rehaif, 139 S. Ct. at 2198 (quoting 18 Staples v. United States, 511 U.S. 600, 615 n.11 (1994)), and the relatively-short 19 period of time between Defendant’s predicate felony convictions and his 20 possession of the relevant firearm is strong evidence that he knew of these 21 convictions at the time of possession. See, e.g., Benamor, 937 F.3d at 1189 (prior 22 convictions for being a felon in possession of a firearm and being a felon in 23 possession of ammunition, for which the defendant was imprisoned for 24 25 2 See Cal. Penal Code § 245(a)(4) (“Any person who commits an assault upon 26 the person of another by any means of force likely to produce great bodily injury 27 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding 28 1 approximately five and a half years, “proved beyond a reasonable doubt that 2 Defendant had the knowledge required by Rehaif and that any error in not 3 instructing the jury to make such a finding did not affect Defendant’s substantial 4 rights or the fairness, integrity, or public reputation of the trial”), cert. denied, 140 5 S. Ct. 818 (2020); United States v. Martinez, 2020 WL 1910721, at *3 (9th Cir. 6 2020) (inferring knowledge of felon status where predicate felony conviction 7 occurred less than five years prior to possession of firearm); United States v. 8 Marcum, 797 F. App’x 278, 282–83 (9th Cir. 2019) (“no reasonable doubt that [the 9 defendant] knew he was a felon at the time” of possession where he was 10 concurrently “subject to the conditions of his supervised release from past felony 11 convictions, including a conviction for being a felon in possession of a firearm”); 12 United States v. Hessiani, 786 F. App’x 658, 661 (9th Cir. 2019) (no entitlement to 13 relief under Rehaif where record established the defendant was previously 14 sentenced “to three years’ imprisonment for the felony offense of willful infliction of 15 corporal injury”), cert. denied, 2020 WL 2515759 (U.S. May 18, 2020). Although 16 his 2014 assault with a deadly weapon conviction did not result in an imprisonment 17 sentence greater than a year and there is a larger gap between Defendant’s 2006 18 importation of marijuana conviction and his 2017 Section 922(g)(1) conviction than 19 the cases cited above, the combination of Defendant’s four felony convictions in 20 less than fifteen years supports a strong inference that he knew he had been 21 convicted of a crime punishable by imprisonment for a term exceeding one year at 22 the time he possessed the relevant firearm. If it highly unlikely that defense 23 counsel would have advised Defendant to take a substantial risk and go to trial 24 especially in light of the favorable plea agreement offered where the Government 25 agreed to recommend the third point under United States Sentencing Guideline § 26 3E1.1(b) and move for a two level downward departure for waiver of appeal and 27 early resolution. (See ECF No. 114, at 7.) Thus, the Defendant by pleading guilty 28 1 was reducing his Guideline range from 77 to 96 months (22/V ) down to 57 to 71 2 months (19/V). This assumes Defendant would have carried his burden of showing 3 he accepted responsibility even though he went to trial. Thus, Defendant’s 4 assertion that he would have gone to trial is plainly not credible or supported by 5 any objective evidence. 6 Further, because Defendant has failed to identify any evidence refuting this 7 strong inference of knowledge of felon status and has not otherwise demonstrated 8 that he was not aware of the “true nature” of his crime of conviction, the Supreme 9 Court’s decision in Henderson v. Morgan, 426 U.S. 637 (1976) is distinguishable. 10 See Henderson, 426 U.S. at 636 (“There is nothing in this record that can serve as 11 a substitute for either a finding after trial, or a voluntary admission, that respondent 12 had the requisite intent.”); id. at 647 n.18 (“There is no need in this case to decide 13 whether notice of the true nature, or substance, of a charge always requires a 14 description of every element of the offense; we assume it does not. Nevertheless, 15 intent is such a critical element of the offense of second-degree murder that notice 16 of that element is required.”). Indeed, while Defendant argues that a person 17 previously convicted of a felony “may have assumed he was no longer in a 18 prohibited group” because “some states restore a felon’s gun rights after various 19 periods of clean conduct[,]” (ECF No. 324, at 10), he fails to provide or otherwise 20 identify any evidence that even hints at the possibility he was operating under such 21 an assumption at the time he possessed the relevant firearm. Rather, his lengthy 22 criminal record, including the aforementioned 2006 and 2014 convictions as well 23 as other convictions recounted in his presentence investigation report in this 24 matter, belies any such assumption. (See ECF No. 150, at 12-14). 25 Based upon the foregoing, Defendant’s § 2255 motion (ECF No. 324) is 26 27 28 1 ||DENIED.* Nevertheless, because “jurists of reason could disagree with the district 2 ||court’s resolution of [Defendant’s] constitutional claims or could conclude the 3 ||issues presented are adequate to deserve encouragement to proceed further,” 4 || Buck v. Davis, __— U.S. __, 187 S. Ct. 759, 765, 197 L. Ed. 2d 1 (2017) (internal 5 || quotations, citations, and alterations omitted), the Court ISSUES a Certificate of 6 || Appealability to Defendant as to all arguments raised in his instant § 2255 motion. 7 || See, e.g., Nair v. United States, 2020 WL 1515627, at *3-6 (W.D. Wash. Mar. 30, 8 ||2020) (granting 28 U.S.C. § 2255 motion based on Rehaif where the defendant 9 || plead guilty to violation of § 922(g)(1) in 2016 based upon conclusion that error 10 ||was not harmless in light of Supreme Court’s ruling in Henderson). 11 IT IS SO ORDERED. ) —s 12 Tid. □□□ Honofable Barry Ted Moskéwitz 13 || Dated: September 2, 2020 United States District Judge 14 15 16 17 18 19 20 21 ||* Because “the record refutes [Defendant's] factual allegations or otherwise 59 precludes habeas relief, [the Court] is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007) (district court did not 23 |/err in denying evidentiary hearing where, “even with the benefit of an evidentiary oA hearing, [the defendant] could not develop a factual record that would entitle him to habeas relief.”); 28 U.S.C. § 2255(b); see also Farrow v. United States, 580 25 ||F.2d 1339, 1360-61 (9th Cir. 1978) (“A petitioner is not entitled to a hearing 26 where he presents no more than conclusory allegations, unsupported by facts and refuted by the record.”). Notably, neither Defendant nor the Government 27 ||requested an evidentiary hearing in this matter. (See ECF No. 324; ECF No. 328, at 2 (“[T]he United States requests that the Court decline to hold an evidentiary 28 hearing.”).)