United States of America v. PONCE DE LEON GOINGS

Denver, CO - Criminal defense lawyer represented defendant with a f possession of a firearm by a convicted felon charge.

The Bureau of Alcohol, Tobacco, and Firearms (ATF) surveilled Mr. Goings'

apartment after receiving information that his domestic partner purchased a firearm for

him. 1 R. 14. After ATF agents observed Mr. Goings carrying the firearm, they stopped

*

This order is not binding precedent except under the doctrines of law of the case,

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

July 21, 2021

Christopher M. Wolpert

Clerk of Court

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him and seized a .45 caliber handgun from a holster on his hip. 1 R. 14. Mr. Goings'

criminal record included a 2000 New York conviction for third-degree felony robbery,

for which he served more than two years in prison, and a 2006 Alabama conviction for

marijuana distribution, for which he served "almost two years” in prison. 1 R. 82. Thus,

in January 2018, Mr. Goings pled guilty to one count of possession of a firearm by a

convicted felon, 18 U.S.C. § 922(g)(1). 1 R. 10. The district court sentenced Mr. Goings

to twenty-four months' imprisonment and three years' supervised release. 1 R. 30.

Consistent with the law at the time, Mr. Goings was not advised that knowledge of

his prohibited status was an element of a § 922(g)(1) violation. However, after Mr.

Goings was sentenced, the Supreme Court held otherwise. Rehaif v. United States, 139

S. Ct. 2191, 2194 (2019). Less than a year after the decision in Rehaif, Mr. Goings filed

his § 2255 motion.

Mr. Goings argued that his plea was invalid and that there was a reasonable

probability that, but for the error, he would not have entered this plea. 1 R. 43. Mr.

Goings recounted that he thought his felony conviction had been expunged and that he

did not know of his prohibited status when arrested. 1 R. 44. The government conceded

the timeliness of the motion, conceded that Rehaif applied retroactively, and waived a

plea-agreement-based waiver defense. 1 R. 51–52. The government instead argued that

Mr. Goings had procedurally defaulted this argument by not pursuing it on direct appeal.

1 R. 53. The government further asserted that Mr. Goings could not overcome this

default because he failed to show cause for the default or actual prejudice. 1 R. 53. In

the alternative, the government argued that even if Mr. Goings had not procedurally

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defaulted his claim, any error was harmless because he could not show that, but for the

error, he would not have entered the plea. 1 R. 55–56.

The district court held that Mr. Goings' theory was procedurally defaulted. 1 R.

89. It concluded that Mr. Goings could not establish actual prejudice and so his

procedural default was not excused. 1 R. 88. Further, in the alternative, the district court

determined that even if Mr. Goings' procedural default was excused, any error was

harmless error because Mr. Goings could not show a reasonable probability that he would

not have entered his plea but for the error. 1 R. 89.

Discussion

A. Certificate of Appealability

To obtain a COA from this court, Mr. Goings must make "a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a claim has been

denied on the merits, the petitioner must demonstrate that reasonable jurists "would find

the district court's assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been denied on procedural

grounds, the petitioner must also demonstrate that reasonable jurists "would find it

debatable whether the district court was correct in its procedural ruling.” Id.

The district court's disposition is not reasonably debatable. A defendant may not

raise an issue in a § 2255 motion if he failed to present the issue on direct appeal. See

United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). However, this can be

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excused if the defendant can show "cause excusing his procedural default and actual

prejudice resulting from the errors of which he complains.” Id.

Mr. Goings maintains that he had a plausible post-Rehaif defense, specifically

"that he did not in fact know that he had a felony conviction that had not been expunged.”

Aplt. Br. At 15. Section 922(g)(1) prohibits "any person who has been convicted in any

court of a crime punishable by imprisonment for a term exceeding one year” . . . "to

possess in or affecting commerce, any firearm or ammunition.” Having served two

different sentences that were each about two years, Mr. Goings could not plausibly claim

that he was unaware that he was a felon. See United States v. Tignor, 981 F.3d 826, 830

(10th Cir. 2020); United States v. Trujillo, 960 F.3d 1196, 1208 (10th Cir. 2020).

Moreover, in a post-arrest statement, Mr. Goings recounted that "the first one I had her

go buy was a (purple) Glock 23. Once she was able to buy the purple one I said okay,

they made a mistake and they let us get a gun.” 1 R. 75. He further confirmed that "he

did not purchase the guns himself because he knew he had been to jail before.” 1 R. 75.

At sentencing, Mr. Goings further stated that, when he met his partner, he told her that he

was a felon and could not be around guns. 3 R. 138–39. Although this Circuit has not

yet decided whether the government must prove knowledge that the defendant's

convictions had not been expunged, see Tignor, 981 F.3d at 830, even with such a

burden, Mr. Goings could not prevail.

Mr. Goings argues that he carried the gun openly and cooperated with authorities

when they detained him. Aplt. Br. 21. Mr. Goings also relies upon his statements that he

believed he could legally possess a gun. Aplt. Br. 6–7. However, merely because Mr.

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Goings no longer saw his inmate number on the New York State Department of

Corrections website says little about why he might think the conviction was expunged. 1

R. 75. Further, Mr. Goings provides no facts that might support a belief that his Alabama

felony conviction had been expunged.

Mr. Goings also argues that the district court's failure to advise him of all the

elements of the charge under § 922(g)(1) was structural error warranting automatic

reversal without regard to the mistake's effect on the proceeding. Aplt. Br. 26. Mr.

Goings failed to raise this argument below and therefore we need not consider it. See

Strauss v. Angie's List, Inc., 951 F.3d 1263, 1266 n.3 (10th Cir. 2020). Further, such

argument is precluded by Supreme Court precedent. See Greer v. United States, 141 S.

Ct. 2090, 2100 (2021).

B. In Forma Pauperis Status

Mr. Goings also moves the court for IFP status on appeal. Mr. Goings may obtain

IFP status if he "seeks appellate review of any issue not frivolous.” Coppedge v. United

States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962). Mr. Goings asserts

that he made two non-frivolous arguments on appeal.

The first is his argument that he was in fact prejudiced when he was not told the

knowledge-of-status element of § 922(g)(1) because there is a reasonable likelihood that

he would not have entered his guilty plea. However, as discussed above, the lack of a

factual predicate for his expungement argument renders this insubstantial.

The second argument was that the district court's failure to advise him of all the

elements of the charge was structural error warranting automatic reversal without regard

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to the mistake's effect on the proceeding. Mr. Goings argues that this is not a frivolous

issue. Although this argument was foreclosed by Trujillo at the time of the motion, Mr.

Goings argues that the Fourth Circuit created a circuit split on this issue when it ruled that

such an error is structural. See United States v. Gary, 954 F.3d 194, 205 (4th Cir. 2020),

cert. granted, 141 S. Ct. 974, 208 L. Ed. 2d 510 (2021), and rev'd sub nom. Greer v.

United States, 141 S. Ct. 2090 (2021).1

While an argument that addresses a circuit split is

not frivolous, see Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir. 1999), Mr. Goings

failed to raise this issue below and therefore, clearly waived it, see Strauss, 951 F.3d at

1266 n.3. Therefore, Mr. Goings failed to raise any nonfrivolous argument on appeal and

IFP status is denied.

We DENY a COA, DENY the motion to proceed IFP, and DISMISS the appeal.