Anthony Clay v. United States of America

St. Louis, MO - Criminal defense lawyer represented Defendant charged with being a felon in possession of a firearm.

Anthony Dwayne Clay pled guilty to being a felon in possession of a firearm

under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court,1

after a Presentence

Investigation Report ("PSIR”) was prepared, sentenced him to 84 months'

imprisonment. Although granted an extension until August 26, 2018, to file a notice

of appeal, Clay chose not to appeal.

After the Supreme Court decided in Rehaif v. United States, 588 U.S. __, 139

S.Ct. 2191, 2200 (2019), that, to be convicted under § 922(g), the defendant must

have known he was a person barred from possessing a firearm, Clay filed a petition

for habeas corpus relief under 28 U.S.C. § 2255. He alleged that he was actually

innocent because he did not know that he was prohibited from possessing a firearm.

Clay asserts on appeal that Rehaif is not dispositive in his case because "the

substantive law existed prior to Rehaif.” Clay instead argues that his plea was invalid

because neither his plea agreement nor the district court established that he knew he

was a felon. Because Clay did not raise this issue in the initial proceedings before the

district court or on direct appeal, he has procedurally defaulted his claim. See

Bousley v. United States, 523 U.S. 614, 621 (1998) (explaining the "strictly limited”

circumstances under which a guilty plea may be attacked on collateral review and

noting "[h]abeas review is an extraordinary remedy and will not be allowed to do

service for an appeal.”); Silk v. United States, 955 F.3d 681, 683 (8th Cir. 2020) (a

defendant may not collaterally attack a guilty plea that he did not challenge on direct

appeal).

When a claim has been procedurally defaulted, it may be raised in a habeas

proceeding only if Clay can demonstrate either cause and actual prejudice, or actual

innocence. Bousley, 523 U.S. at 622 (cleaned up). Clay's argument that he is entitled

to the protection of the laws existing prior to Rehaif demonstrates his claim was

1The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.

-2-

reasonably available before the deadline to appeal expired and undermines any

attempt to establish cause. Clay also cannot show prejudice since he admitted in his

plea agreement and again at the change of plea hearing that he had been previously

convicted of a crime punishable by more than a year's imprisonment. In fact, the plea

agreement specifically identified four crimes for which Clay was punished with a

term of imprisonment exceeding one year.

Finally, Clay's actual innocence claim is without merit. The record forecloses

any plausible argument that Clay did not know he was a felon. According to the

PSIR, Clay's criminal history, in relevant part, included convictions that gave rise to

the imposition of sentences that ranged from 10 and 6 years on the higher end down

to 4 and 2 years on the lower end. Because Clay spent more than a year in prison on

at least five separate occasions, his criminal history would have undoubtedly provided

sufficient evidence to prove Clay knew his status as felon at the time he committed

this federal offense. See United States v. Welch, 951 F.3d 901, 907 (8th Cir. 2020)

(finding, after Rehaif, it was not reasonably probable for the defendant to show his

substantial rights were affected because he had several felony convictions in which

he previously received and served prison sentences longer than one year); see also

Bousley, 523 U.S. at 623 (to establish actual innocence, a petitioner must show that

it is more likely than not that no reasonable juror would have convicted him).

For the foregoing reasons, we affirm the judgment of the district court