United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
VACATE (Docket No. 48)
TIMOTHY S. HILLMAN DISTRICT JUDGE
November 26, 2018, Cleon Riley (“Defendant”) pled
guilty to felon in possession of a firearm and ammunition;
distribution of and possession with intent to distribute
cocaine and cocaine base; and possession with intent to
distribute fentanyl. (Docket Nos. 33, 34). On March 19, 2019,
this Court sentenced Defendant to 180 months of imprisonment
and 72 months of supervised release. (Docket No. 42).
Defendant did not file an appeal. He now moves to vacate
under 28 U.S.C. § 2255 on the grounds of ineffective
assistance of counsel and inadequate knowledge of the mens
rea requirement of 18 U.S.C. § 922(g). (Docket No. 48).
For the following reasons, the Court
denies Defendant's motion.
contends that his counsel “rendered ineffective
assistance by failing to file a notice of [a]ppeal.”
(Docket No. 48 at 4). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) “that
counsel's performance was deficient” and (2)
“that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). In the context of the failure to file an
appeal, a “defense attorney's representation is
constitutionally deficient if the attorney either
‘disregards specific instructions from the defendant to
file a notice of appeal' or fails (under certain
circumstances) to consult with the defendant about an
appeal.'” Rojas-Medina v. United States,
924 F.3d 9, 15 (1st Cir. 2019) (quoting Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000)). Prejudice is
presumed if a defendant shows that “counsel's
constitutionally deficient performance deprive[d him] of an
appeal that he otherwise would have taken.”
Flores-Ortega, 528 U.S. at 484.
Defendant asserts that his counsel failed to file an appeal
despite specific instructions to do so. But Defendant does
not indicate when he gave his counsel instructions
to appeal his conviction or sentence. And his June 26, 2016,
motion for an extension of time to file an appeal implies
that any request, if made, occurred outside the applicable
fourteen-day window. See Docket No. 44 at 1
(“I was never informed by my attorney that I was able
to appeal the sentence and/or judgment of the Court. Had I
been informed that I only had 14 days to file an appeal, I
would have instructed my attorney to file the appeal
immediately. I recently found out while researching at the
inmate law library.”) (emphasis added). Because the
record suggests that Defendant was time-barred from filing an
appeal by the time he requested one, Defendant has not shown
that his counsel's counsels failure to file a notice of
appeal “deprive[d him] of an appeal that he otherwise
would have taken.” See Flores-Ortega, 528 U.S. at
contends that his lawyer failed to instruct him on the mens
rea requirements of § 922(g)(1). Specifically, he
asserts that he did not know that the Government would need
to prove knowledge of his status as a felon. (Docket No. 48
at 5). Defendant relies on Rehaif v. United States,
139 S.Ct. 2191 (2019), decided after Defendant's
conviction and sentence became final. In Rehaif, the
Supreme Court determined 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.”
Id. at 2200.
court has found that Rehaif applies retroactively to
cases on collateral review, so it is not clear Defendant can
raise this challenge under § 2255. See, e.g.,
In re Palacios, 931 F.3d 1314, 1315 (11th Cir.
2019); Moore v. United States, No.
2:19-cv-02572-TLP-tmp, 2019 WL 4394755, at *2 (W.D. Tenn.
Sept. 12, 2019); United States v. Grigsby, No.
12-10174-JTM, 2019 WL 3302322, at *1 (D. Kan. July 23, 2019).
Even assuming arguendo that Rehaif applies
retroactively, however, Defendant has not alleged actual
prejudice. See Sustache-Rivera v. United States, 221
F.3d 8, 18 (1st Cir. 2000) (“Because this case is on
collateral review-as opposed to direct review-we apply the
‘actual prejudice' harmless error test described in
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993).”). His failure to show
that he would not have pled guilty had he known that the
Government needed to prove knowledge of his status as a felon
or that a jury would have found that he lacked such knowledge
is fatal to his challenge. See Ellis v. United
States, 313 F.3d 636, 644 (1st Cir. 2002) (noting that
the harmless error “standard requires us to ask whether
the error had a substantial and injurious effect or influence
on the outcome of the proceedings”).
reasons above, the Court denies
Defendant's motion to vacate (Docket No. 48).
statute governing appeals of final orders in habeas corpus
proceedings provides that an appeal is not permitted
“[u]nless a circuit justice or judge issues a
certificate of appealability.” 28 U.S.C. §
2253(c)(1). A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make a “substantial showing,
” a petitioner must demonstrate that “reasonable
jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595 (2000) (internal quotation marks
omitted). This is a low bar; a claim can be considered
“debatable” even if every reasonable jurist would
agree that the petitioner will not prevail. Miller-El v.
Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In
ruling on an application for a certificate of appealability,
a district court must indicate which specific issues satisfy
the “substantial showing” standard. 28 U.S.C.
a certificate of appealability with respect to denial of the
petition because I find that reasonable jurists could not
debate whether Defendant's counsel rendered ineffective
assistance by failing to file an appeal or whether Defendant