United States District Court, C.D. California
ARTHUR L. POWELL, Petitioner,
L.J. MILUSNIC, Warden, Respondent.
ORDER TO SHOW CAUSE
G. Rosenberg United States Magistrate Judge.
September 11, 2019, Petitioner filed a Petition for Writ of
Habeas Corpus by a Person in Federal Custody
(“Petition”), pursuant to 28 U.S.C. § 2241.
For the reasons set forth below, Petitioner is ordered to
show cause on or before November 22,
2019, why the Court should not dismiss the
Petition for lack of jurisdiction.
September 6, 2016, Petitioner pled guilty to Count 1 of the
indictment charging him with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) in the
District of Minnesota. (Exh. A to Petition, docket entries
29, 30, 54 on docket sheet in United States v.
Powell, CR 16-187 PJS (D. Minn.) (hereinafter
“Minnesota Action”). On appeal, the Eighth
Circuit vacated his sentence and remanded for resentencing.
United States v. Powell, 719 Fed.Appx. 531, 531-32
(8th Cir. 2018). On remand, Petitioner was sentenced to 120
months in prison and two years of supervised release.
(Minnesota Action, Re-Sentencing Judgment on Remand, Dkt. No.
70.) There is no indication on the docket that Petitioner
filed an appeal or a 28 U.S.C. § 2255 motion in the
a federal prisoner within the Central District of California,
filed the Petition challenging his conviction. He argues that
he pled guilty to “a nonexistent offense” under
Rehaif v. United States, 139 S.Ct. 2191 (2019).
Pursuant to Rehaif, the Government had to prove
beyond a reasonable doubt that Petitioner (1) was previously
convicted of an offense punishable by more than one year in
prison (meaning he was a “felon”); (2) knowingly
possessed a firearm in or affecting interstate commerce; and
(3) knew he was a felon. Id. at 2194; United
States v. Benamor, 937 F.3d 1182, 2019 U.S. App. LEXIS
26793, *7 (9th Cir. Sept. 5, 2019). Petitioner argues
structural error because the district court did not inform
him the third element. (Petition at 8.)
application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).
the “escape hatch” provisions of § 2255(e),
Petitioner must show he (1) made a claim of actual innocence
and (2) has not had an unobstructed procedural shot at
presenting that claim. Marrero v. Ives, 682 F.3d
1190, 1192 (9th Cir. 2012).
makes no showing that he is factually innocent of the crime
of conviction. “‘”[A]ctual innocence”
means factual innocence, not mere legal
insufficiency.'” Id. at 1193. Petitioner
introduces no evidence indicating he did not know he had
previously been convicted of a felony. Id. at
1192-93; see, e.g., United States v. Hessiani, 2019
U.S. App. LEXIS 29417, *5 (9th Cir. 2019) (finding defendant
not entitled to relief under Rehaif given evidence
Defendant knew he had previously been convicted and sentenced
to imprisonment for more than one year); Benamor,
2019 U.S. Dist. LEXIS 26793 *12 (noting defendant stipulated
that, at time he was arrested, he had been convicted of crime
punishable by imprisonment more than one year; and defendant
had been convicted of three felonies, including being a felon
in possession of firearm and ammunition, for which he
received sentences of more than one year).
stipulated on the record that (1) he knowingly possessed a
firearm on May 10, 2016; (2) prior to May 10, 2016 he had
been previously convicted of one or more crimes punishable by
imprisonment more than one year; and (3) when he possessed
the firearm, he knew that his actions violated the law.
(Minnesota Action, Plea Transcript at 25:18-27:11, Dkt. No.
54; Plea Agreement ¶ 2, Dkt. No. 30.) At the sentencing
hearing, the judge noted that Petitioner had 15 prior felony
convictions as an adult, one of which involved a prison
sentence of 108 months. (Minnesota Action, Sentencing Hearing
Transcript at 30:15, 24-25, Dkt. No. 55.) His criminal
history category was VI. (Id. at 32:2-3.)
has not shown that he has not had an unobstructed procedural
shot at presenting his claim. Petitioner must show that the
legal basis for his claim did not arise until after he had
exhausted his direct appeal and first § 2255 motion.
Harrison v. Ollison,519 F.3d 952, 960 (9th Cir.
2008). The Rehaif decision was issued on June 21,
2019, less than one year after Petitioner was resentenced on
remand from ...