United States of America v. Edward Ross

Edward Ross appeals from the denial of his motion

under 28 U.S.C. § 2255 to vacate, set aside, or correct his

criminal sentence. He asserts that his trial and appellate

counsel rendered ineffective assistance to him when they

failed both to challenge a deficient jury instruction and to

challenge the sufficiency of the evidence on one of his counts

of conviction. Because we conclude that he has not satisfied

a threshold requirement of section 2255, we will remand the

case to the District Court with directions to dismiss the

motion.

I. BACKGROUND

A. FACTUAL BACKGROUND

Ross was a drug dealer in Chester, Pennsylvania.

Between March 25 and April 22, 2004, an undercover

detective made four purchases of cocaine from him, and, on

three of those occasions, surveillance officers watched Ross

leave a residence at 2115 Madison Street and drive directly to

a location agreed upon with the detective. The detective

arranged a fifth cocaine purchase for April 23, 2004. Before

that purchase took place, however, the police obtained a

warrant to search 2115 Madison Street. When police officers

saw Ross leave the residence and get into his car, they

arrested him in the driveway. The officers searched his car

and found four bags of cocaine and a loaded Colt .38 caliber

handgun.

After the arrest, the police executed the search warrant

for the residence. They discovered, among other things, a .25

caliber semi-automatic handgun, and a loaded 9mm pistol.

Originally, the 9mm pistol had been semi-automatic, but the

firing pin had been replaced with a submachine gun firing pin

that enabled the gun to fire continuously. At Ross’s

subsequent criminal trial, an expert from the Bureau of

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Alcohol, Tobacco, and Firearms testified that the 9mm pistol,

as modified, met the definition of a machinegun set forth in

26 U.S.C. § 5845(b).

B. PROCEDURAL HISTORY

In March 2006, a federal grand jury returned a

superseding indictment charging Ross with four counts of

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

(counts 1-4); possession with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count

5); carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count

6); possession of a machinegun in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii)

(count 7); possession of a machinegun, in violation of 18

U.S.C. § 922(o) (count 8); and two counts of possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1) (counts 9 and 10).

Ross’s case went to trial. After the parties had finished

presenting evidence, the district court instructed the jury;

however, regarding count 8, the court did not say – and

Ross’s trial counsel failed to object and insist – that as part of

proving Ross possessed a machinegun, the government was

required to prove beyond a reasonable doubt that he had

specific knowledge of the firearm’s characteristics that made

it a “machinegun” as defined by statute, specifically 26

U.S.C. § 5845(b). The jury found Ross guilty on all counts.

At sentencing, because Ross had a prior conviction for

a felony drug trafficking offense and was also, on count 5,

convicted of an offense involving 500 grams or more of

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cocaine, he was subject to a mandatory minimum penalty of

10 years’ imprisonment. He was further subject to a

mandatory consecutive term of 30 years’ imprisonment

because he was, on count 7, convicted of possessing a

machinegun in furtherance of a drug trafficking crime. The

district court found that Ross was a career offender under

section 4B1.1 of the United States Sentencing Guidelines and

sentenced him to concurrent terms of 10 years’ imprisonment

on counts 1, 2, 3, 4, 5, 8, and 10, followed by a consecutive

term of 30 years’ imprisonment on count 7. The court

imposed a total term of eight years’ supervised release, a fine

of $3,000, and an $800 special assessment – that is, $100 for

each count of conviction. On the government’s motion, the

district court dismissed counts 6 and 9.

Ross filed a direct appeal. He argued that the district

court erroneously concluded that 18 U.S.C. § 924(c)(1)(B)(ii)

required the imposition of thirty years’ imprisonment on

count 7, that the court further erred by increasing his

mandatory minimum sentence based on a prior conviction,

and that there was insufficient evidence to prove that he had

violated 18 U.S.C. § 922(g). He also challenged the

constitutionality of 18 U.S.C. §§ 922(o) and 922(g)(1). On

April 27, 2009, we affirmed his conviction. United States v.

Ross, 323 F. App’x 117, 120 (3d Cir. 2009).

Sixteen months later, in August 2010, Ross filed his

motion to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2255, and he filed a supplemental motion in

September 2013. The District Court denied those motions

and refused to issue a certificate of appealability. The Court

predicted that we would apply the reasoning of the Supreme

Court’s decision in Staples v. United States, 511 U.S. 600

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(1994), and would conclude that Ross’s conviction under

section 922(o) was unlawful because the jury was not

required to find that Ross had specific knowledge of the 9mm

pistol’s firing characteristics. Nevertheless, the Court

reasoned that any error with respect to Ross’s conviction

under section 922(o) did not cause prejudice under Strickland

v. Washington, 466 U.S. 668 (1984), for two reasons: first,

because Ross is classified as a Category VI career criminal,

and so the section 922(o) conviction could not change his

criminal history category in any future federal sentencing

proceeding; second, because, even if the section 922(o)

conviction were vacated, Ross would not be released from

custody any sooner given the concurrency of his sentence for

that count with the time he had to serve on other counts of

conviction.

Ross timely appealed. He chose to apply directly to us

for a certificate of appealability, which we granted. The

certificate of appealability limited Ross to raising the issue of

whether his trial and appellate counsel rendered ineffective

assistance by failing to argue that the government introduced

insufficient evidence to convict him of possessing a

machinegun as charged in count 8 and that the jury

instructions did not require the jury to find as an essential

element of that crime that he knew of the characteristics of

the firearm that brought it within the statutory definition of

“machinegun.” (App. at 23.) In the certificate of

appealability, we stated that, “jurists of reason would debate

the District Court’s conclusion that appellant did not suffer

prejudice under Strickland v. Washington, 466 U.S. 668

(1984),” and, in particular, we noted that it was debatable

whether “his conviction under § 922(o) did not increase his

actual sentence and would have no effect under the federal

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Sentencing Guidelines on the sentence imposed for any

federal conviction in the future.” (App. at 23.)

II. DISCUSSION1

Two questions are before us. The first, raised by the

government, is whether the relief that Ross seeks is

cognizable under section 2255. The second, pressed by Ross,

is whether section 922(o) includes a mens rea element that

requires the government to prove that a defendant had

specific knowledge of a firearm’s characteristics. Because we

answer the first question in the negative, we cannot reach the

second.

Ross bases his section 2255 motion on the alleged

ineffective assistance of his counsel at trial and on direct

appeal. He argues that those lawyers performed deficiently in

failing to challenge the sufficiency of evidence presented to

prove a violation of section 922(o) and in failing to object to

the associated jury instruction. We note at the outset that, had

Ross challenged his conviction under section 922(o) on direct

appeal, there is a fair likelihood we would have vacated that

conviction and remanded for resentencing.2 But this case

1 The District Court had jurisdiction under 28 U.S.C.

§ 2255. We have appellate jurisdiction pursuant to 28 U.S.C.

§ 2253. We exercise plenary review over the District Court’s

legal conclusions and apply the clearly erroneous standard to

its factual findings. Cradle v. United States ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002).

2 Given the opportunity, we might join our sister

circuits in holding that, to obtain a conviction under section

922(o), the government must prove beyond a reasonable

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comes before us now as a collateral attack on the conviction

and sentence, not as a direct appeal, and the forms of relief

remaining to Ross are severely limited by statute. He may be

right that the 922(o) conviction is unlawful, but, given the

current posture of the case, not every wrong is in our power to

doubt that the defendant knew of the characteristics of the

firearm that render it a “machine gun” within the meaning of

section 5845(b). See United States v. Smith, 508 F.3d 861,

866 n.3 (8th Cir. 2007) (requiring the government to prove

that the defendant “knew he possessed a weapon with

characteristics that made it subject to registration

requirements”); United States v. Nieves-Castaño, 480 F.3d

597, 599 (1st Cir. 2007) (“[T]he government’s burden is to

prove that the defendant had knowledge of the characteristics

that brought the gun within the statutory definition … .”);

United States v. Camp, 343 F.3d 743, 745 (5th Cir. 2003)

(“Pursuant to Staples, the Government must prove a

defendant knew the weapon he possessed had the

characteristics that brought it within the statutory definition of

a machinegun.” (citations, emphasis, and internal quotation

marks omitted)); United States v. McGiffen, 267 F.3d 581,

589-90 (7th Cir. 2001) (requiring the government to prove

defendant knew of the weapon’s characteristics that “bring it

within the statutory definition”); United States v. Gravenmeir,

121 F.3d 526, 529-30 (9th Cir. 1997) (concluding the district

court properly instructed the jury that the government must

prove “the defendant knew that the firearm was a

machinegun”); United States v. Rogers, 94 F.3d 1519, 1523

n.5 (11th Cir. 1996) (agreeing with the government that

Staples’s reasoning applies with “equal force” to prosecutions

under section 922(o)).

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right. We are bound by the text of section 2255. That statute

provides, in pertinent part:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the

right to be released upon the ground that the

sentence was imposed in violation of the

Constitution or laws of the United States, or that

the court was without jurisdiction to impose

such sentence, or that the sentence was in

excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move

the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255(a) (emphasis added).

The strictures of section 2255 constitute a threshold

test in addressing Ross’s post-conviction claims of ineffective

assistance of counsel. The viability of those claims, if we

were to reach their merit, is determined by the familiar twopart

inquiry outlined in Strickland v. Washington, pursuant to

which Ross has the burden of demonstrating (1) “that

counsel’s performance was deficient” and (2) “that the

deficient performance prejudiced the defense.” 466 U.S. at

687. The government contends, however, that, before getting

to that inquiry, we must reject Ross’s claim because it is not

cognizable under section 2255. Even if Ross’s trial and

appellate counsel provided objectively unreasonable

assistance that prejudiced him, he still would not be entitled

to relief, according to the government, because he is not

“claiming the right to be released” from “custody.” Ross

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responds that controlling precedent establishes that the $100

special assessment and the collateral consequences associated

with the 922(o) conviction each constitute “custody” within

the meaning of section 2255.

A. $100 SPECIAL ASSESSMENT

The plain text of section 2255 provides relief only to

those prisoners who claim the right to be released from

“custody.” The term “custody,” however, is not as

straightforward as it may at first appear. In McNally v. Hill,

293 U.S. 131, 136-37 (1934), the Supreme Court held that

discharge from physical confinement is the only relief

available in a habeas corpus proceeding, but the Court

reversed course in Peyton v. Rowe, 391 U.S. 54, 66-67

(1968), explaining that the concept of “custody” is expansive

enough to encompass harms and remedies other than

immediate discharge from physical confinement. Since

McNally, “our understanding of custody has broadened” to

include many forms of restraint short of physical

confinement, Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004).

See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)

(holding that, for mootness purposes, a petitioner is “in

custody” if he is burdened by the “collateral consequences” of

the challenged conviction); Jones v. Cunningham, 371 U.S.

236, 243 (1963) (holding that the conditions and restraints of

a parole order constituted “custody”). Despite the elasticity

the word “custody” has acquired, precedent firmly establishes

that the use of the term in federal habeas statutes is “designed

to preserve the writ of habeas corpus as a remedy for severe

restraints on individual liberty.” Hensley v. Mun. Court, San

Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)

(emphasis added); Barry v. Bergen Cnty. Prob. Dep’t, 128

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F.3d 152, 159 (3d Cir. 1997). The Supreme Court has

distilled a three-part test for deciding what constitutes

custody: the restraints on the petitioner must be (1) severe, (2)

immediate (i.e., not speculative), and (3) not shared by the

public generally. Hensley, 411 U.S. at 351-53; Ira P Robbins,

Habeas Corpus Checklists 465 (2014-2015 ed.).

We have not previously considered whether a

monetary penalty such as the $100 special assessment

associated with Ross’s conviction under 922(o) is a “severe”

restraint on a defendant’s individual liberty, but the answer

must be no. Supreme Court decisions holding that a

petitioner suffered from a “severe restraint” on liberty have

emphasized the physical nature of the restraints. Hensley,

411 U.S. at 351 (emphasizing that the petitioner “cannot

come and go as he pleases” and that his “freedom of

movement rests in the hands of state judicial officers, who

may demand his presence at any time and without a

moment’s notice”); Peyton, 391 U.S. at 67 (1968) (holding

that “a prisoner serving consecutive sentences is ‘in custody’

under any one of them”); Jones, 371 U.S. at 242 (“Petitioner

is confined by the parole order to a particular community,

house, and job at the sufferance of his parole officer. He

cannot drive a car without permission.”). Our sister circuits

have followed the Supreme Court’s lead. See Calhoun v.

Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014)

(holding that the requirement to register under state sex

offender registration statute does not satisfy the “in custody”

requirement because it involves no physical restraint), cert.

denied, 135 S. Ct. 376 (2014); Virsnieks v. Smith, 521 F.3d

707, 718 (7th Cir. 2008) (“[T]he collateral consequences of a

conviction, those consequences with negligible effects on a

petitioner’s physical liberty of movement, are insufficient to

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satisfy the custody requirement.”); Williamson v. Gregoire,

151 F.3d 1180, 1183 (9th Cir. 1998) (noting that cases that

find a severe restriction on a petitioner’s liberty “rely heavily

on the notion of a physical sense of liberty – that is, whether

the legal disability in question somehow limits the putative

habeas petitioner’s movement”). Ross does not and could not

argue that the $100 special assessment imposes any

restriction on his freedom of movement, because, of course, it

does not.

Our own precedent holds that the monetary component

of a sentence is not capable of satisfying the “in custody”

requirement of federal habeas statutes. See Obado v. New

Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (per curiam) (“The

payment of restitution or a fine, absent more, is not the sort of

‘significant restraint on liberty’ contemplated in the ‘custody’

requirement of the federal habeas corpus statutes.”); cf. Barry,

128 F.3d at 161 (distinguishing “fine-only” sentences where a

petitioner is not “in custody” from sentences that restrict a

petitioner’s physical liberty on the basis that “fine-only”

sentences “implicate only property, not liberty”). Our sister

circuits too have held that fines, restitution orders, and other

monetary penalties are insufficient to meet the “in custody”

requirement. See Bailey v. Hill, 599 F.3d 976, 982 (9th Cir.

2010) (holding that a restitution order alone is insufficient to

trigger the “custody” requirement); Washington v. Smith, 564

F.3d 1350, 1350 (7th Cir. 2009) (affirming denial of state

habeas relief on a claim of ineffective assistance of counsel

with respect to the restitution amount, “because it does not

attack a custodial aspect of Washington’s sentence and, thus,

does not state a claim for relief under the habeas corpus

statutes”); Mamone v. United States, 559 F.3d 1209, 1209-12

(11th Cir. 2009) (per curiam) (holding that a restitution order

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cannot be challenged in a section 2255 motion because a

claim seeking discharge or reduction of a restitution order

does not claim the right to be released from custody, even if it

accompanies other claims that actually claim the right to be

released from custody; Erlandson v. Northglenn Mun. Court,

528 F.3d 785, 788 (10th Cir. 2008) (“We agree with the

district court that the payment of restitution or a fine, absent

more, is not the sort of ‘significant restraint on liberty’

contemplated in the ‘custody’ requirement of the federal

habeas statutes.”(brackets and internal quotation marks

omitted)); Kaminski v. United States, 339 F.3d 84, 89 (2d Cir.

2003) (holding that a restitution order of $21,000 does not

constitute “custody” within the meaning of section 2255);

United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003)

(applying “the plain and unambiguous language” of section

2255 to hold “that a federal prisoner cannot challenge the

restitution portion of his sentence using 28 U.S.C. § 2255,

because this statute affords relief only to prisoners claiming a

right to be released from custody”); United States v. Segler,

37 F.3d 1131, 1137 (5th Cir. 1994) (holding that a $30,000

fine was not a sufficient restraint on liberty to meet the “in

custody” requirement of section 2255); United States v.

Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (“A monetary fine is

not a sufficient restraint on liberty to meet the ‘in custody’

requirement for § 2255 purposes.” (internal citations

omitted)). But see United States v. Jones, 403 F.3d 604, 607

(8th Cir. 2005) (holding that the defendant’s Strickland claim

merited relief under section 2255 in part because the

defendant was required to pay a $100 special assessment,

which the court stated constituted actual prejudice under

Strickland); United States v. Bass, 310 F.3d 321, 330 (5th Cir.

2002) (failing to cite Segler and stating that the defendant was

prejudiced by his counsel’s ineffective assistance when he

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was sentenced to pay an additional $50 assessment). It seems

clear, therefore, both as a matter of fact and law that Ross’s

$100 special assessment does not constitute any meaningful

restriction on his liberty, let alone a severe restriction

cognizable under section 2255.

Ross nevertheless argues that “a special assessment

resulting from a wrongful conviction satisfies Strickland’s

prejudice requirement” and that the Supreme Court’s

decisions in Rutledge v. United States, 517 U.S. 292 (1996),

Ray v. United States, 481 U.S. 736 (1987) (per curiam), and

Ball v. United States, 470 U.S. 856 (1985), “apply forcefully

to show the prejudice of counsel’s deficient performance

here.” (Opening Br. at 29.) We do not agree. Rutledge is

easily distinguishable. In that case, the Supreme Court held

that conspiracy under 21 U.S.C. § 846 is a lesser included

offense of the crime of maintaining a continuing criminal

enterprise, forbidden by 21 U.S.C. § 848. 517 U.S. at 307.

The Court also held that the imposition of a special

assessment constitutes “punishment” under the Double

Jeopardy Clause. Id. at 301. As a result, the Supreme Court

concluded that imposition of a special assessment for

convictions under both sections 846 and 848 “amounts to

cumulative punishment not authorized by Congress.” Id. at

303. But we are not concerned here with whether a special

assessment constitutes “punishment” within the meaning of

the Double Jeopardy Clause; instead, we must determine

whether it constitutes “custody” within the meaning of

section 2255. Rutledge is of no help in that task.

Ray also provides practically no guidance in answering

the question before us. In that case, the Supreme Court

reviewed on direct appeal what has come to be called “the

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concurrent sentence doctrine,” Ray, 481 U.S. at 737, which

says, in essence, that “courts are free to pretermit decision

about convictions producing concurrent sentences, when the

extra convictions do not have cumulative effects.” Ryan v.

United States, 688 F.3d 845, 849 (7th Cir. 2012). In Ray, the

Fifth Circuit had invoked the concurrent sentence doctrine

and declined to review one of the petitioner’s two convictions

on direct appeal for possession of cocaine with intent to

distribute because the sentences on the two counts of

possession were concurrent. Ray, 481 U.S. at 737. The

Supreme Court vacated the decision, holding that the

petitioner was not serving concurrent sentences because the

district court had imposed a $50 special assessment on each

of the three counts on which the defendant had been

convicted. Id. The Supreme Court concluded that, “[s]ince

petitioner’s liability to pay this total depends on the validity

of each of his three convictions, the sentences are not

concurrent.” Id. Thus, Ray establishes that, when a court

orders a defendant to pay a special assessment for each of

several counts of conviction, the sentences are not concurrent

and the “concurrent sentence” doctrine cannot be used to

avoid appellate review of each count of conviction. The

applicability of the concurrent sentence doctrine on direct

appeal is, however, distinct from the question presented here,

on collateral review under section 2255. Ray simply does not

advance Ross’s argument because it does not address the

meaning of “custody.”

In Ball, the Supreme Court held that duplicative convic

tions cannot stand even if the sentences are concurrent

because “[t]he separate conviction, apart from the concurrent

sentence, has potential adverse collateral consequences that

may not be ignored.” 470 U.S. at 865 (emphasis in original).

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Such “adverse collateral consequences” included a potential

delay in the defendant’s eligibility for parole, an increased

sentence under a recidivist statute for a future offense, the use

of the additional conviction to impeach the defendant’s

credibility, and the societal stigma accompanying any

criminal conviction. Id. Again though, Ball involved a direct

appeal, not a habeas corpus petition under section 2255, and

its discussion of the harm stemming from the collateral

consequences of a felony conviction sheds no light on

whether or not a monetary fine like a special assessment is the

type of restriction on liberty that constitutes “custody” within

the meaning of that statutory provision.

Because we believe the burden of a special assessment

– even one imposed in conjunction with a wrongful

conviction – does not amount to “custody,” Ross is not

“claiming the right to be released” from “custody” and his

special assessment cannot serve as the basis for a claim under

section 2255.

2. COLLATERAL CONSEQUENCES

The parties dispute whether a petition premised on the

collateral consequences of an unlawful conviction, such as

those identified in Ball, is cognizable under section 2255.

Our own law does not answer the question, but we are not

without guidance. In Maleng v. Cook, 490 U.S. 488, 492

(1989) (per curiam), the Supreme Court held that, once a

sentence for a conviction has completely expired, the

collateral consequence of future sentencing enhancements

potentially caused by that conviction is not itself sufficient to

render an individual “in custody” for the purpose of a habeas

attack. Of course, the sentence for Ross’s conviction under

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section 922(o) has not completely expired, but it is running

concurrently with several other sentences. This case thus

seems analogous to Maleng, since Ross’s only additional

harm stemming from the 922(o) conviction is whatever

undefined collateral consequences may arise, not the term of

imprisonment. In the end, however, we do not have to decide

whether, on these facts, the collateral consequences of a

wrongful conviction amount to “custody” under section 2255,

because Ross has not identified any such potential

consequences.

Though pressed at oral argument, Ross could not point

to a collateral consequence not already existing as a result of

his prior felony convictions or his seven other felony

convictions in this case. He says that, as a result of his

wrongful conviction under section 922(o), he is subject to

greater social stigma, his credibility could be attacked more

easily at a future hearing or trial, he may be barred from

obtaining the benefit of future changes to the law, or his

eligibility for parole or the length of a future sentence could

be affected if he is convicted of some future crime. But,

given his remarkably long rap sheet, which chronicles a

lifetime of drug-related offenses and violent crimes, coupled

with his seven other convictions in this case – including one

unquestionably valid conviction for machinegun possession,

namely count 7 – it is hard to see any significant collateral

consequence originating from his conviction under section

922(o), let alone one that rises to the level of “custody.”

Indeed, most of the “collateral consequences” that he

identifies are supported by nothing more than speculation,

which is insufficient to establish “custody.”

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Relying on Spencer v. Kemna, 523 U.S. 1 (1998), and

a handful of cases that closely hew to it, Ross asserts that “[a]

presumption of collateral consequences exists whenever a

criminal defendant challenges his criminal conviction.”

(Opening Br. at 22 (internal quotation marks omitted).) He is

incorrect. Spencer did not hold that courts are to presume the

existence of collateral consequences in all cases where a

habeas petitioner challenges his conviction. Instead, Spencer

noted only that the Supreme Court has been “willing to

presume that a wrongful criminal conviction has continuing

collateral consequences (or, what is effectively the same, to

count collateral consequences that are remote and unlikely to

occur),” 523 U.S. at 8, in order “to avoid mootness in

challenges to conviction,” id. at 10. Ross provides no reason

why such a presumption should apply in a case like this,

where mootness is not at issue. But even if we were to

indulge in that presumption, it would be rebutted here for the

reasons we have already noted: Ross’s lengthy criminal

history, his multiple convictions in this case, and his

concurrent sentences all undermine his claim that somehow

his additional conviction will harm him in particular.

In the absence of any plausible evidence of collateral

consequences stemming from Ross’s section 922(o)

conviction, there is no basis to conclude that such

consequences render him “in custody” and eligible for relief

under section 2255.

For the reasons set forth above, we will vacate the

District Court’s order denying relief and direct that Ross’s

section 2255 motion be dismissed.