20 F.4th 1252
9th Cir.2021Background
- In 2017 Pollard was indicted under 18 U.S.C. § 922(g)(1) for possessing firearms as a felon; he had multiple prior felony convictions including a prior state felon‑in‑possession conviction, pled guilty in 2018, got 57 months, and did not appeal.
- In 2019 the Supreme Court decided Rehaif v. United States, holding the government must prove the defendant knew his prohibited status under § 922(g)(1).
- Pollard filed a 28 U.S.C. § 2255 motion arguing his guilty plea was not knowing/voluntary because he was not informed of the Rehaif knowledge‑of‑status element.
- The district court denied relief for procedural default because Pollard failed to show actual prejudice; the court also found cause (a finding the Ninth Circuit did not rely upon).
- The Ninth Circuit reviewed de novo and applied the standard that to overcome procedural default a habeas petitioner must show cause and actual prejudice; it focused on whether Pollard showed actual prejudice under Dominguez Benitez and Lee.
- The court held Pollard failed to show actual prejudice: his lengthy felony history, prior state felon‑in‑possession conviction, and plea colloquy admissions objectively established he knew his felon status; the denial was affirmed.
Issues
| Issue | Pollard's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Pollard overcame procedural default by showing actual prejudice from a Rehaif error | He would not have pled guilty if told about the knowledge‑of‑status element | The record shows he knew his felon status; no reasonable probability he would have gone to trial | No — Pollard failed to show actual prejudice; claim remains defaulted |
| Whether a Rehaif error is structural (so prejudice is presumed) | Rehaif error is structural | Rehaif errors are not structural; prejudice must be shown | Rehaif errors are not structural; actual prejudice required (per Greer) |
| Whether the record shows Pollard lacked knowledge of his felon status | He asserts he might have pursued other defenses had he known | Prior convictions and plea colloquy admissions show he knew he was a felon | Record objectively shows Pollard knew his status; no reasonable probability of a different choice |
| Whether futility/novelty of the claim constitutes cause to excuse procedural default | Rehaif was uniformly rejected by circuits, so the claim was not reasonably available on direct appeal | Futility does not establish cause under Bousley/Reed distinctions | Majority affirms on prejudice and does not rely on cause; concurrence explains futility ordinarily does not excuse default, while another concurrence would treat Reed’s narrow futility exception as possibly applicable |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (held government must prove defendant knew his prohibited status under § 922(g))
- Greer v. United States, 141 S. Ct. 2090 (2021) (Rehaif errors are not structural; actual prejudice required)
- Bousley v. United States, 523 U.S. 614 (1998) (procedural default requires cause and actual prejudice; futility generally not cause)
- Lee v. United States, 137 S. Ct. 1958 (2017) (to show prejudice from counsel’s error, the record must show defendant would have rejected the plea and gone to trial)
- Dominguez Benitez v. United States, 542 U.S. 74 (2004) (reasonable probability standard for plea prejudice)
- Reed v. Ross, 468 U.S. 1 (1984) (discusses when novelty/futility may constitute cause in narrow circumstances)
- United States v. Benamor, 937 F.3d 1182 (9th Cir. 2019) (criminal history and prior felon‑in‑possession conviction support inference defendant knew his status)
- United States v. Monzon, 429 F.3d 1268 (9th Cir. 2005) (courts need not second‑guess a defendant’s objectively unreasonable decision to plead guilty)