UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TYRONNE POLLARD, JR., Defendant-Appellant.
No. 20-15958
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 21, 2021
D.C. Nos. 4:20-cv-01136-JSW, 4:17-cr-00613-JSW-1
FOR PUBLICATION
ORDER AND OPINION
Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding
Argued and Submitted April 16, 2021 San Francisco, California
Before: Ryan D. Nelson and Danielle J. Forrest,* Circuit Judges, and Janis Graham Jack,** District Judge.
Order; Opinion by Judge R. Nelson; Concurrence by Judge R. Nelson; Concurrence by Judge Forrest
SUMMARY***
28 U.S.C. § 2255
The panel (1) withdrew an
Pollard filed the motion after the Supreme Court in Rehaif v. United States, 139 S. Ct. 2191 (2019), held that
The panel noted that everything in the record shows Pollard was aware of his felon status, and that Pollard conceded there is little question that one can reasonably infer from his criminal history that he must have known he had served more than a year in prison for a felony offense. The panel rejected Pollard‘s argument that the question is not whether a jury would have convicted him, but whether he would have gone to trial despite the uncontroverted evidence of guilt—a purely subjective inquiry that does not track recent Supreme Court precedent. The panel explained that a court must determine whether the underlying record objectively shows that a specific defendant would have not pled guilty absent the allegedly prejudicial error. The panel concluded that Pollard failed to show actual prejudice because he did not point to any objective indications in his underlying criminal proceedings that he would have not pled guilty had he known of
Concurring, Judge R. Nelson wrote separately to address the district court‘s position that Pollard could show cause. He wrote that at the time Pollard pled guilty, the claim Pollard would later raise on collateral review was reasonably available to him and was not a novel claim; and that even if it were futile, the futility of raising statutory claims under the circumstances of Pollard‘s case has been rejected as a showing of cause to overcome procedural default.
Concurring, Judge Forrest disagreed with Judge R. Nelson that current Supreme Court precedent dictates a broad futility-can-never-be-cause rule that bars collateral review in federal criminal cases.
COUNSEL
Geoffrey M. Jones (argued), Fairfax, California, for Defendant-Appellant.
Merry Jean Chan (argued) and Briggs Matheson, Assistant United States Attorneys; Matthew M. Yelovich, Chief, Appellate Section, Criminal Division; Stephanie M. Hinds, Acting United States Attorney; United States Attorney‘s Office, San Francisco, California; for Plaintiff-Appellee.
Geoffrey Hansen, Acting Federal Public Defender; Carmen Smarandoiu, Chief, Appellate Unit; Office of the Federal Public Defender, San Francisco, California; Cuauhtemoc Ortega, Federal Public Defender; Brianna Mircheff, Deputy Federal Public Defender, Los Angeles, California; for Amici Curiae Ninth Circuit Federal Public and Community Defender Offices.
ORDER
The Opinion filed August 27, 2021, and appearing at 10 F.4th 948 (9th Cir. 2021), is withdrawn and substituted. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. The Clerk is directed to file the replacement opinion submitted with this order. The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED. Subsequent petitions for rehearing or rehearing en banc may be filed.
OPINION
R. NELSON, Circuit Judge:
After Rehaif v. United States, 139 S. Ct. 2191 (2019), Tyronne Pollard, Jr., collaterally challenged his felon-in-possession guilty plea because he was not informed of
I
In December 2017, Pollard was indicted for possessing a gun as a felon. See
A year later, the Supreme Court decided Rehaif, holding that
II
We have jurisdiction under
III
“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation marks and citation omitted). And like any petitioner who tries to collaterally attack a guilty plea, Pollard must overcome “significant procedural hurdles” before a court can reach the merits of his challenge. Id. Specifically, Pollard‘s motion is procedurally defaulted since he did not appeal his conviction in 2018. Id. Thus, Pollard must
A petitioner who pled guilty is prejudiced if there is “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). A court cannot consider whether a defendant‘s decision to go to trial “may have been foolish.” United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005) (citation omitted). But a court can consider whether evidence “proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error” was not prejudicial. United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019).
This evidence can be either direct or circumstantial. Rehaif, 139 S. Ct. at 2198 (citing Staples v. United States, 511 U.S. 600, 615 n.11 (1994)). And “[i]n a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb” for a simple reason: “If a person is a felon, he ordinarily knows he is a felon.” Greer, 141 S. Ct. at 2097. Thus, we often consider a defendant‘s criminal history to determine whether a Rehaif error was prejudicial. E.g., Benamor, 937 F.3d at 1189 (finding “no probability” that Benamor did not know of his status after serving multiple years in prison for seven felonies, including a state felon-in-possession conviction); United States v. Tuan Ngoc Luong, 965 F.3d 973, 989 (9th Cir. 2020) (finding “no reasonable probability” of a different outcome when the defendant was in prison for over a decade with six prior felony convictions); United States v. Johnson, 979 F.3d 632, 638-39 (9th Cir. 2020) (three felony convictions and over five years in prison made it “overwhelming and uncontroverted” that Johnson knew of his felon status). Thus, demonstrating prejudice under Rehaif will be difficult for most convicted felons. See United States v. Door, 996 F.3d 606, 619 (9th Cir. 2021) (“[A]bsent any evidence suggesting ignorance,” the jury can “‘infer that a defendant knew that he
Given Pollard‘s criminal history and the record below, there is no probability that he was unaware of his felon status. Before his current conviction, Pollard had served over five years in prison for committing numerous felonies. And like in Benamor, Pollard had also been convicted under a state felon-in-possession statute. See 937 F.3d at 1189. Pollard‘s plea colloquy also shows he knew he was a felon. When the district court asked him why he was being convicted, Pollard responded, “I possessed a firearm that I wasn‘t supposed to have.” And after the court asked why Pollard was not supposed to have a gun, Pollard replied, “Because I am a felon and my rights have been—didn‘t have the right to have it no more.” In short, everything in the record shows Pollard was aware of his felon status. Unsurprisingly, Pollard concedes there is little question that one can reasonably infer from his criminal history that he must have known he had served more than a year in prison for a felony offense.
Still, Pollard argues that the question is not whether a jury would have convicted him (the inquiry in cases like Benamor), but whether he personally would have gone to trial despite the uncontroverted evidence of guilt. In essence, Pollard asks us to ignore the writing on the wall and accept his bare assertion on collateral review that he would not have pled guilty. We reject this purely subjective (and potentially post hoc) inquiry as it does not track recent Supreme Court precedent.
In Lee v. United States, Lee, a South Korean national living in the United States, was repeatedly assured by his attorney that he would not be deported if he pled guilty. 137 S. Ct. 1958, 1963 (2017). This advice was wrong, Lee pled guilty, and he was ordered deported. Id. at 1962-63. He filed a
The analysis in Lee reflects a broader principle applicable here. The underlying record must demonstrate a reasonable probability that a defendant would not have pled guilty; assertions raised on habeas review alone are insufficient. True, this is not a purely objective test. Absent the error, a defendant may have decided to throw a “Hail Mary,” id. at 1967, even if doing so would “have been foolish” to the reasonable defendant, Monzon, 429 F.3d at 1272. But neither is it a purely subjective test. Instead, a court must determine whether the underlying record objectively shows that a specific defendant would have not pled guilty absent the allegedly prejudicial error. See Lee, 137 S. Ct. at 1967-69. Pollard has not pointed to any objective
IV
Pollard fails to show actual prejudice from any error as nothing in the record objectively demonstrates that he would have not pled guilty had he known of
AFFIRMED.
R. NELSON, Circuit Judge, concurring:
We correctly conclude that Pollard cannot show prejudice and that is enough to resolve this case. I write separately to address the district court‘s position that Pollard could show cause. At the time Pollard pled guilty, the claim he would later raise on collateral review was reasonably available to him. It was not a novel claim. And even if it were futile, the futility of raising statutory claims under the circumstances of Pollard‘s case has been rejected as a showing of cause to overcome procedural default. Therefore, Pollard could show neither cause nor prejudice.
I
As stated in the majority opinion, “[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation marks and citation omitted); Maj. Op. 6. To collaterally attack his guilty plea and overcome procedural default, Pollard must show, as relevant here, cause and prejudice.
The “cause and prejudice” standard is “grounded in concerns of comity and federalism.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). It requires a petitioner to show both (1) cause for why he did not object to or directly appeal the alleged error and (2) actual prejudice resulting from the error to overcome that default. Bousley, 523 U.S. at 622. While the majority concludes that Pollard cannot show prejudice, neither can Pollard show cause.
“Underlying the concept of cause” is that “absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel.” Reed v. Ross, 468 U.S. 1, 13 (1984). So, assuming defense counsel was not constitutionally ineffective, counsel‘s inadvertent or intentional decision to not pursue a claim at trial or on appeal is insufficient to show cause on collateral review. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Instead, to establish cause for procedural default, a petitioner must show that “some objective factor external to the defense impeded counsel‘s efforts” to bring the issue up on direct appeal. Id.
One external factor is when the claim was unavailable to a petitioner at the time
Though both are in the same family of reasons a claim was unavailable to a petitioner, novelty and futility are not the same. Novelty is about new claims while futility concerns newly available claims. As the Eleventh Circuit has aptly noted, “[i]n procedural default cases, the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all.” Lynn v. United States, 365 F.3d 1225, 1235 (11th Cir. 2004) (citing Smith v. Murray, 477 U.S. 527, 534 (1986)). Defense counsel may choose not to pursue a claim that has been rejected, but that is not to say the claim does not exist: a defendant‘s “opportunity to object” is not the same as his “likelihood of prevailing on the objection.” Greer v. United States, 141 S. Ct. 2090, 2099 (2021).
II
Here, the district court wrongly held that Pollard had shown cause because his Rehaif claim had been uniformly rejected and thus was not reasonably available to him on direct appeal of his guilty plea. Though the lack of prejudice to Pollard procedurally bars his
The Supreme Court first addressed and rejected futility as grounds for cause in the 1940s. Sunal v. Large, 332 U.S. 174, 183 (1947); see also Brent E. Newton, An Argument for Reviving the Actual Futility Exception to the Supreme Court‘s Procedural Default Doctrine, 4 J. App. Prac. & Process 521, 527-44 (2002) (outlining history of futility as cause to excuse procedural default). Ultimately in Isaac, the Court held that “the futility of presenting an objection to the state courts cannot alone constitute cause for failure to object at trial,” because “[e]ven a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.” 456 U.S. at 130. “If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts because he thinks they will be unsympathetic to the claim.” Id.
Bousley applied Isaac to federal defendants challenging a change in statutory law. Unlike here, the Rehaif-like case in Bousley was first decided by the Eighth Circuit in a divided opinion, then reheard en banc with multiple dissents, was the subject of a circuit split, and ultimately
In this court, after briefly accepting futility as cause, see, e.g., Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981), we cited Isaac to call the futility doctrine “short-lived,” Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993). Thereafter, when we upheld a showing a cause for futility, the Supreme Court showed its disapproval. Under circumstances similar to Pollard‘s case, we held that a claim was futile where a contrary statutory scheme had been upheld a few years before, “no reported case anywhere had held” favorably, and “there was no reason to believe that any court, anywhere, would be sympathetic to the claim.” LaGrand v. Stewart, 173 F.3d 1144, 1147-48 (9th Cir. 1999). However, the Supreme Court reversed the grant of the stay of execution. Stewart v. LaGrand, 535 U.S. 1173 (1999). And, in a related case, the Supreme Court held that a similarly situated petitioner had failed to show cause because controversy surrounding the same claim had existed for decades, several states were considering changing their relevant laws, and two Supreme Court justices had expressed their views that the claim was viable. Stewart v. LaGrand, 526 U.S. 115, 119-20 (1999).
Other courts have recognized the futility of relying on the futility doctrine. See, e.g., Minter v. Beck, 230 F.3d 663, 665-66 (4th Cir. 2000) (holding that negative constitutional case law rendering the raising of a claim futile did not constitute state-created “impediment“); United States v. Sanders, 247 F.3d 139, 145-46 (4th Cir. 2001) (allowing futility to act as cause for constitutional law change “would invite defendants to bypass the preferred procedural avenue of trial and direct appeal in favor of collateral review,” which would become “an all-purposive receptable for claims which in hindsight appear more promising than they did at the time of trial“); Gatewood v. United States, 979 F.3d 391, 396 & n.2 (6th Cir. 2020) (even “the alignment of the circuits against a particular legal argument does not equate to cause for procedurally defaulting it” (citation omitted)); United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (“even when the law is against a contention, a litigant must make the argument to preserve it for later consideration“); McCoy v. United States, 266 F.3d 1245, 1259 (11th Cir. 2001) (“Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default“).1
When other circuits have disagreed, the claims at issue generally addressed changes in constitutional law where the Supreme Court reversed itself. See, e.g., Lassend v. United States, 898 F.3d 115, 122-23 (1st Cir. 2018) (distinguishing Bousley for constitutional change in the law where Supreme Court overruled itself); Cross v. United States, 892 F.3d 288, 295 (7th Cir. 2018) (reversing course for Seventh Circuit on constitutional, not statutory,
The Supreme Court in Reed suggested in dicta two situations when “the failure of a defendant‘s attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement“: (1) where the Supreme Court explicitly overrules itself; and (2) where the Supreme Court overturns a longstanding and widespread practice expressly approved by a near-unanimous body of lower courts, but which the Supreme Court had not addressed. Reed, 468 U.S. at 17. Pollard asserts, and the district court agreed, that the second situation applies since the Supreme Court reversed every circuit that had addressed the issue in Rehaif. See Tate v. United States, 982 F.3d 1226, 1228 (9th Cir. 2020) (”Rehaif interpreted a statute and did not invoke any constitutional provision or principle“).
But the “vitality” of the dicta in Reed “has been questioned following the Supreme Court‘s decisions in Teague v. Lane, 489 U.S. 288 (1989) and Bousley.” United States v. Moss, 252 F.3d 993, 1002-03 (8th Cir. 2001) (collecting cases). Regardless, we are not bound by Supreme Court dicta “should more complete argument demonstrate that the dicta is not correct.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013). Bousley was decided after Reed, and Bousley‘s futility rule was dispositive rather than dicta. Bousley made no exception for claims that received consistent negative treatment in the courts. See 523 U.S. at 623. And while the first situation from Reed continues to make sense, see Cvijetinovic v. Eberlin, 617 F.3d 833, 839 n.7 (6th Cir. 2010), the second Reed hypothetical is difficult to apply in practice. That an argument is unacceptable to a particular Court of Appeals, at that particular time, does not excuse a defendant from raising the claim. This reasoning holds true even if all the Courts of Appeals have taken the same position. Since Reed was decided almost four decades ago, the Supreme Court has never relied on the second hypothetical to excuse default. Moss, 252 F.3d at 1003. We likewise have never found it dispositive.
Moreover, Reed confined its attention specifically to the situation presented there: “one in which th[e] Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application.” 486 U.S. at 17. When the Supreme Court addresses a change in a constitutional rule, such an argument is less available to petitioners before the change than a more typical argument of statutory interpretation. Bousley, in contrast, dealt with a change in statutory law, declined to recognize futility as cause, and did not expressly limit its holding. 523 U.S. at 617. Though Bousley referenced Reed without mentioning that Reed applied to constitutional principles, Bousley only cited Reed to distinguish it. Id. at 622. Bousley did not extend Reed to statutory principles. Here, like Bousley, Rehaif was a matter of statutory interpretation, see Tate, 982 F.3d at 1228, so Reed‘s examples of unavailable claims do not apply.
Put simply, procedural default is still a high bar, overcome by futility only in “exceptional
Applying these principles, Pollard has not shown cause. Unlike an argument based on a new constitutional principle, the tools to construct Pollard‘s
Finally, Pollard and Federal Public and Community Defenders amici raise concerns that this reasoning would require defense counsel to argue even the “kitchen sink” and risk being sanctioned for bringing frivolous claims. See United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting from denial of rehearing en banc). This policy argument is unpersuasive—this has been the law nationwide for a long time with little evidence that defense counsel have been placed in untenable situations. Competent defense counsel regularly preserve arguments for future appeal. Defense counsel are trusted with the great responsibility of using their discretion to bring the best arguments reasonably available.
*
The majority opinion limits its analysis to the strong lack-of-prejudice argument. But it did not need to do so. Pollard‘s knowledge-of-status argument was reasonably available to him when he elected to forego an appeal of his guilty plea, and thus he also cannot show cause.
FORREST, Circuit Judge, concurring:
I respectfully disagree with Judge Nelson that current Supreme Court precedent dictates a broad futility-can-never-be-cause rule that bars collateral review in federal criminal cases. Of course, “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). But that is materially different from where a claim has been uniformly rejected by every circuit to consider it for a sustained period of time, as the Supreme Court posited in Reed v. Ross, 468 U.S. 1, 17 (1984) (recognizing cause for procedural default exists where a claim challenges “a longstanding and widespread practice to which th[e Supreme] Court has not spoken, but which a near-unanimous
In my view, this point in Reed is still good law and the suggestion that it should be disregarded as dicta is unpersuasive. See Boardman v. Inslee, 978 F.3d 1092, 1106-07 (9th Cir. 2020), cert. denied, 142 S. Ct. 387 (2021). Judge Nelson relies primarily on Bousley in asserting that futility can never be cause. But there, the circuit courts had not been unified for an extended period in rejecting the issue that was raised on collateral review. Bousley, 523 U.S. at 616; Bailey v. United States, 516 U.S. 137, 142 (1995). Thus, the general futility rule from Isaac applied, and the Supreme Court did not need to discuss the above-referenced point from Reed. At the very least, Bousley did not indicate that it was rejecting its prior acknowledgment in Reed that there are limited circumstances where futility could be cause under the procedural default analysis. Thus, even if that point was dicta, Bousley is not the type of “more complete argument” that suggests we should ignore Reed‘s reasoned analysis. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).
Because the case at hand falls within the limited circumstance acknowledged in Reed, see Rehaif v. United States, 139 S. Ct. 2191, 2201 (2019) (Alito, J. dissenting) (the interpretation of