United States v. Pollard, No. 20-15958 (9th Cir. 2021)
Annotate this CaseThe Ninth Circuit withdrew its previous opinion; filed a replacement opinion affirming the prejudice portion of the district court's order denying a 28 U.S.C. 2255 motion in which defendant challenged his felon-in-possession guilty plea on the ground that he was not informed of 18 U.S.C. 922(g)(1)'s knowledge-of-status element; and otherwise denied a petition for rehearing and, on behalf of the court, a petition for rehearing en banc. In this case, defendant fails to show actual prejudice from any error as nothing in the record objectively demonstrates that he would have not pled guilty had he known of section 922(g)(1)'s knowledge-of-status element.
Court Description: 28 U.S.C. § 2255. The panel (1) withdrew an opinion filed August 27, 2021; (2) filed a replacement opinion affirming the prejudice portion of the district court's order denying a 28 U.S.C. § 2255 motion in which Tyrone Pollard, Jr. challenged his felon-in-possession guilty plea on the ground that he was not informed of 18 U.S.C. § 922(g)(1)'s knowledge-of-status element; and (3) otherwise denied a petition for rehearing and, on behalf of the court, a petition for rehearing an banc. Pollard filed the motion after the Supreme Court in Rehaif v. United States, 139 S. Ct. 2191 (2019), held that § 922(g)(1) requires the government to prove that the defendant knew he was a felon at the time of possession. The district court denied the motion because Pollard had not shown actual prejudice and thus failed to overcome the procedurally defaulted nature of his claim. The district court also determined that Pollard had shown cause to overcome the procedural default. The panel noted that everything in the record shows Pollard was aware of his felon status, and that Pollard UNITED STATES V. POLLARD 3 conceded there is little question that 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. The panel rejected Pollard’s argument that the question is not whether a jury would have convicted him, but whether he would have gone to trial despite the uncontroverted evidence of guilt—a purely subjective inquiry that does not track recent Supreme Court precedent. The panel explained that a court must determine whether the underlying record objectively shows that a specific defendant would have not pled guilty absent the allegedly prejudicial error. The panel concluded that Pollard failed to show actual prejudice because he did not point to any objective indications in his underlying criminal proceedings that he would have not pled guilty had he known of § 922(g)(1)’s knowledge-of-status element. Concurring, Judge R. Nelson wrote separately to address the district court’s position that Pollard could show cause. He wrote that at the time Pollard pled guilty, the claim Pollard would later raise on collateral review was reasonably available to him and was not a novel claim; and that even if it were futile, the futility of raising statutory claims under the circumstances of Pollard’s case has been rejected as a showing of cause to overcome procedural default. Concurring, Judge Forrest disagreed with Judge R. Nelson that current Supreme Court precedent dictates a broad futility-can-never-be-cause rule that bars collateral review in federal criminal cases. 4 UNITED STATES V. POLLARD
This opinion or order relates to an opinion or order originally issued on August 27, 2021.
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