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Date: 09-03-2021
Case Style:
United States of America v. TYRONNE POLLARD, JR.
Case Number: 20-15958
Judge: Ryan Douglas Nelson
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Merry Jean Chan (argued), Chief, Appellate Section,
Criminal Division; David L. Anderson, United States
Attorney; Briggs Matheson, Assistant United States
Attorney; United States Attorney’s Office
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with a possessing a gun as a felon charge.
In December 2017, Pollard was indicted for possessing a
gun as a felon. See 18 U.S.C. § 922(g)(1). As the crime
implies, this was not Pollard’s first offense. Over the last
twenty years, he was convicted of several felonies and
served over five years in prison. His federal felon-inpossession indictment was not his first gun-related offense
either. In 2004, Pollard was sentenced to over a year in
prison for violating California’s felon-in-possession statute.
So when officers found guns in Pollard’s possession in 2017,
the federal government’s allegations were straightforward:
Pollard was a felon who knowingly possessed a gun and
ammunition that were transported in interstate commerce.
Pollard pled guilty. He was sentenced to 57 months and did
not appeal.
A year later, the Supreme Court decided Rehaif, holding
that § 922(g)(1) requires the government to prove that the
defendant knew he was a felon at the time of possession. See
generally 139 S. Ct. at 2191. Pollard then filed a motion to
vacate his conviction and sentence under 28 U.S.C.
UNITED STATES V. POLLARD 5
§ 2255(a), contending that his guilty plea was not intelligent,
knowing, or voluntary without having been informed of
§ 922(g)(1)’s knowledge-of-status element. The district
court denied Pollard’s motion because he had not shown
actual prejudice and thus failed to overcome the procedurally
defaulted nature of his claim. This appeal followed.
II
We have jurisdiction under 28 U.S.C. § 2253(a) and
review the denial of Pollard’s § 2255 motion de novo.
United States v. Hardiman, 982 F.3d 1234, 1236 n.1 (9th Cir.
2020) (per curiam) (citation omitted).
III
“Habeas review is an extraordinary remedy and will not
be allowed to do service for an appeal.” Bousley, 523 U.S.
at 621 (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 show (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. Id. at 622
(citation omitted); Murray v. Carrier, 477 U.S. 478, 485
(1986) (citation omitted).1 This showing is “a significantly
higher hurdle than would exist on direct appeal.” United
1 Alternatively, a petitioner can show actual innocence to overcome
procedural default. Bousley, 523 U.S. at 622–23 (citation omitted).
Pollard does not argue that here.
6 UNITED STATES V. POLLARD
States v. Frady, 456 U.S. 152, 166 (1982). Pollard has
neither shown cause nor actual prejudice.
A
“[A]bsent exceptional circumstances, a defendant is
bound by the tactical decisions of competent counsel.” Reed
v. Ross, 468 U.S. 1, 13 (1984). This means a defense
counsel’s inadvertent or intentional decision to not pursue a
claim at trial or on appeal is insufficient to show cause on
collateral review. Carrier, 477 U.S. at 486. Instead, cause
turns on whether “some objective factor external to the
defense impeded counsel’s efforts” to raise a claim. Id.
at 488.
The Supreme Court has not catalogued every situation
that can constitute cause. See Ross, 468 U.S. at 13. It has
given examples though. For instance, a defendant has shown
cause when the claim is “so novel that its legal basis is not
reasonably available to counsel.” Id. at 16; see also Carrier,
477 U.S. at 488. In other words, the claim is not one where
“other defense counsel have perceived and litigated that
claim.” Engle v. Isaac, 456 U.S. 107, 134 (1982). Thus, if
a petitioner had the tools to construct the legal argument
during his underlying proceedings, the argument is not novel
enough to constitute cause for failing to raise it earlier. See
Anderson v. Kelley, 938 F.3d 949, 962 (8th Cir. 2019). For
this reason, the petitioner’s claim in Bousley was not novel
given “the Federal Reporters were replete with cases
involving” the same claim. 523 U.S. at 622.
Novelty and futility are not the same, however. By
definition, a futile claim is never novel—it has been
perceived and raised at one point, even if ultimately rejected
by a reviewing court. See Isaac, 456 U.S. at 134. Defense
counsel may choose not to pursue a claim that has been
UNITED STATES V. POLLARD 7
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, 141 S.
Ct. at 2099. Hence the Eleventh Circuit 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)).
So what impact does futility have on a procedurally
defaulted claim? None. “[F]utility cannot constitute cause
if it means simply that a claim was unacceptable to that
particular court at that particular time.” Bousley, 523 U.S.
at 623 (citation omitted). For that reason, the Supreme Court
did not excuse Bousley’s default simply because the lower
court had previously rejected the same claim. Id. Put
simply, procedural default is a high bar, overcome only in
“exceptional circumstances,” Ross, 468 U.S. at 13, and
arguing futility does not clear that bar. The opportunity for
habeas relief is not a second chance to litigate issues
previously available to a defendant.
Applying these principles, Pollard has not shown cause.
Section 922(g)(1)’s knowledge-of-status argument is not
novel. In fact, prior to Rehaif, defendants throughout the
country had repeatedly raised the argument. See Rehaif,
139 S. Ct. at 2199. True, every court to address the issue
since § 922(g)(1)’s most recent amendment had rejected
finding a knowledge-of-status element. See id. at 2195; id.
at 2210 n.6 (Alito, J., dissenting) (collecting cases); see also,
e.g., United States v. Miller, 105 F.3d 552, 555 (9th Cir.
1997) (rejecting a knowledge-of-status element). But, again,
futility is insufficient to overcome procedural default.
8 UNITED STATES V. POLLARD
Because “the Federal Reporters were replete with cases”
raising the same argument, Pollard’s knowledge-of-status
argument was reasonably available to him at the time he pled
guilty, and thus he has not adequately shown cause. See
Bousley, 523 U.S. at 622.
The district court erred by concluding otherwise. It
distinguished Bousley’s futility language from Pollard’s
motion since the underlying issue in Bousley was subject to
a circuit split but the underlying issue in Rehaif was not.
True enough. Compare Bousley, 523 U.S. at 618, with
Rehaif, 139 S. Ct. at 2201 (Alito, J., dissenting). But it does
not matter how futile a claim is. Whether a claim is futile or
“entirely futile” (as Pollard argues), Bousley gives a brightline rule: futility is not enough to show cause. 523 U.S.
at 623 (citation omitted); see also Isaac, 456 U.S. at 130.
Pollard may not have succeeded in raising the argument, but
he had the opportunity to do so. See Greer, 141 S. Ct.
at 2099.
Pollard also argues his claim was novel under Ross, but
we are unpersuaded. Ross outlined three situations when
defense counsel would not have had a “reasonable basis” to
raise a claim: the Supreme Court (1) explicitly overrules its
precedent; (2) “overturn[s] a longstanding and widespread
practice to which [it] has not spoken, but which a nearunanimous body of lower court authority has expressly
approved”; or (3) disapproves a practice that it “arguably
ha[d] sanctioned in prior cases.” 468 U.S. at 17 (alteration
adopted) (citations omitted). Pollard thinks the second
situation applies since the Supreme Court reversed every
circuit when deciding Rehaif.
But Ross is inapplicable. Foremost, Ross confined its
“attention to the specific situation presented [t]here: one in
which this Court has articulated a constitutional principle
UNITED STATES V. POLLARD 9
that had not been previously recognized but which is held to
have retroactive application.” Id. (emphasis added). Rehaif,
however, was a matter of statutory interpretation, so Ross’s
examples of novel claims do not apply. The second situation
is also dicta, not explaining when a practice qualifies as
“longstanding and widespread.”2 See id. at 17. Since Ross
was decided almost four decades ago, the Supreme Court has
never relied on the second situation to excuse default, and
we have never found it dispositive. And most important,
Bousley was decided after Ross, Bousley’s futility rule was
dispositive rather than dicta, and that rule made no exception
for claims that received consistent negative treatment in the
courts. See 523 U.S. at 623. We follow the Supreme Court’s
explicit holding in Bousley.
For these reasons, Pollard has not shown cause. Though
his claim may have been futile, it was not novel—the tools
to construct and raise the argument were readily available to
him.
2 For example, the constitutional rule discussed in Ross had been in
place “for over a century.” 468 U.S. at 18. But here, Congress enacted
the current § 922(g)(1) in 1986. Rehaif, 139 S. Ct. at 2199. It is thus
unclear whether the circuits’ consistent interpretation of § 922(g)(1)
from 1986 to 2019 falls within Ross’s second scenario. See United States
v. Moss, 252 F.3d 993, 1003 (8th Cir. 2001) (“The Supreme Court has
never relied on the ‘longstanding and widespread practice’ exception as
a basis for excusing default, but based on its origin, the exception appears
inapplicable when the issue has been settled for what is only a mere
moment in the time line of lower federal court jurisprudence.”).
10 UNITED STATES V. POLLARD
B
Cause aside, Pollard has not shown actual prejudice.3 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-inpossession 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
3 Pollard argues a Rehaif error is structural. In Greer, the Supreme
Court rejected that contention. 141 S. Ct. at 2099–2100. Structural
errors are a “highly exceptional category.” Id. at 2100 (citation and
internal quotation marks omitted). And “discrete defects in the criminal
process—such as . . . the omission of a required warning from a Rule 11
plea colloquy—are not structural because they do not ‘necessarily render
a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.’” Id. Thus, Rehaif errors are never
structural, and a habeas petitioner is still required to show actual
prejudice. At any rate, a habeas petitioner must show actual prejudice to
overcome procedural default, even if an error is structural, when the error
does not always result in actual prejudice. See generally Weaver v.
Massachusetts, 137 S. Ct. 1899 (2017).
UNITED STATES V. POLLARD 11
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. 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); 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). 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 or she was a convicted
felon from the mere existence of a felony conviction’ as
evidenced by the defendant’s stipulation.” (citation
omitted)).
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
12 UNITED STATES V. POLLARD
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, 137 S. Ct. 1958, 1963 (2017),
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. This advice was wrong, Lee pled
guilty, and he was ordered deported. Id. at 1962–63. He
filed a § 2255 motion, asking to vacate his guilty plea as he
would not have pled guilty but for his attorney’s error. Id.
The Supreme Court agreed, but not because of Lee’s
arguments during the habeas proceedings. Id. at 1969.
Instead, the Court looked to the underlying record. Id. at
1968–69. It was clear that “avoiding deportation was the
determinative factor” and that Lee “would have rejected any
plea leading to deportation—even if it shaved off prison
time—in favor of throwing a ‘Hail Mary’ at trial.” Id.
at 1967. Lee repeatedly made this clear throughout his
proceedings, stating during his plea colloquy that the
possibility of deportation would affect his decision to plead.
Id. at 1968–69. These indications in the record were enough
for Lee to show actual prejudice—i.e., that he would have
gone to trial absent the error. Id. at 1969.
UNITED STATES V. POLLARD 13
Lee’s analysis 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 indications in
his underlying criminal proceedings and has therefore failed
to show actual prejudice—especially in the face of strong
evidence to the contrary.4
IV
Pollard fails to show cause for not raising his claim
during the underlying criminal proceedings as it was
reasonably available to him at the time he pled guilty.
Pollard also fails to show actual prejudice from any error as
nothing in the record objectively demonstrates that he would
4 Pollard argues had he known about the knowledge-of-status
defense, he would have been “emboldened” to pursue a “quixotic”
necessity defense. But a necessity defense is not inherently tied to
§ 922(g)(1)’s knowledge-of-status element. Instead, this defense is more
closely tied to the possession element, an element Pollard was aware of
when he decided to plead guilty. Pollard’s conclusory assertions do not
explain how being informed of the knowledge-of-status element would
have emboldened him to raise a defense available to him pre-Rehaif.
14 UNITED STATES V. POLLARD
have not pled guilty had he known of § 922(g)(1)’s
knowledge-of-status element
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: