United States v. Edward Ross
2015 U.S. App. LEXIS 16401
| 3rd Cir. | 2015Background
- Edward Ross was arrested after multiple undercover cocaine buys; police found cocaine and several firearms, including a 9mm pistol modified to fire continuously, which ATF testified met the statutory definition of a "machinegun."
- Ross was indicted on multiple counts, convicted on all counts including possession of a machinegun in violation of 18 U.S.C. § 922(o) (count 8) and related § 924(c) machinegun-in-furtherance count (count 7), and sentenced to concurrent 10-year terms plus a consecutive 30-year term on count 7; a $100 special assessment was imposed for each count.
- Trial counsel did not object to the jury instruction on count 8 that omitted a requirement that the government prove Ross knew the firearm’s characteristics making it a “machinegun”; appellate counsel did not raise that insufficiency-of-evidence claim on direct appeal.
- Ross filed a § 2255 motion asserting ineffective assistance of trial and appellate counsel for failing to challenge the jury instruction and sufficiency of evidence on the § 922(o) conviction; the district court denied relief and refused a COA; the Third Circuit granted limited COA on the counsel ineffectiveness question.
- The panel concluded Ross’s § 2255 motion is not cognizable because he is not "in custody" with respect to the claimed injury: the $100 special assessment and speculative collateral consequences from the § 922(o) conviction do not satisfy the habeas "custody" requirement, so the motion must be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ross’s § 2255 ineffective-assistance claim is cognizable because he is "in custody" for the § 922(o) conviction | Ross: the $100 special assessment and collateral consequences from the wrongful § 922(o) conviction make him "in custody," so § 2255 relief is available | Gov't: § 2255 requires custody involving severe, immediate, nonpublic restraints; monetary assessments and speculative collateral consequences do not meet that test | Held: Not cognizable under § 2255 — the $100 assessment is not "custody," and Ross identified no concrete collateral consequences sufficient to establish custody; dismiss § 2255 motion |
| Whether monetary penalties (special assessments) qualify as "custody" for habeas purposes | Ross: special assessment is prejudice under Strickland and supports § 2255 relief | Gov't: monetary penalties are not restraints on liberty for § 2255 custody requirement | Held: Monetary assessment alone does not constitute custody for § 2255 purposes |
| Whether collateral consequences from an additional conviction presumptively satisfy § 2255 custody | Ross: courts should presume collateral consequences exist when a conviction is challenged (citing Spencer and Ball) | Gov't: Spencer’s presumption relates to mootness; collateral consequences must be concrete and not speculative | Held: No presumption applies here; Ross’s extensive criminal history and concurrent sentences rebut any claim of unique collateral consequences |
| Whether the court may reach the substantive mens rea question for § 922(o) on collateral review | Ross: counsel should have challenged instruction and sufficiency re: mens rea for machinegun definition | Gov't: threshold custody defect bars § 2255 review | Held: Court declines to reach the mens rea / Staples-related question because § 2255 is unavailable to Ross in this posture |
Key Cases Cited
- Staples v. United States, 511 U.S. 600 (1994) (holding mens rea may be required when statute criminalizes possession of dangerous instrumentalities)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance: deficient performance and prejudice)
- McNally v. Hill, 293 U.S. 131 (1934) (early rule that habeas relief traditionally sought physical release)
- Peyton v. Rowe, 391 U.S. 54 (1968) (expanding custody concept beyond immediate physical confinement)
- Rumsfeld v. Padilla, 542 U.S. 426 (2004) (discussing broadened understanding of "custody")
- Carafas v. LaVallee, 391 U.S. 234 (1968) (collateral consequences can keep a challenge live for habeas purposes)
- Jones v. Cunningham, 371 U.S. 236 (1963) (parole conditions can constitute custody)
- Hensley v. Mun. Court, 411 U.S. 345 (1973) (articulating factors for what constitutes custody: severe, immediate, not shared by public)
- Maleng v. Cook, 490 U.S. 488 (1989) (expired sentence generally precludes habeas custody; speculative future enhancements insufficient)
- Rutledge v. United States, 517 U.S. 292 (1996) (special assessments can constitute punishment for double jeopardy analysis)
- Ray v. United States, 481 U.S. 736 (1987) (special assessments can defeat concurrent-sentence analysis on direct appeal)
- Ball v. United States, 470 U.S. 856 (1985) (additional convictions may carry collateral consequences even if sentences are concurrent)
- Obado v. New Jersey, 328 F.3d 716 (3d Cir. 2003) (monetary fines or restitution alone do not satisfy habeas custody requirement)