United States of America v. TYRONNE POLLARD, JR.

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

AFFIRMED