United States v. Redrick

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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UNITED STATES OF AMERICA )
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V. ) Criminal Case No. 13-155 (RJL)
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ROGER REDRICK )
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MEMORANDUM OPINION

(March (2, 2024) [Dkt. ##49, 67]

On March 18, 2014, Roger Redrick pleaded guilty to violating 18 U.S.C. § 922(g),
which prohibits certain categories of persons, including convicted felons, from knowingly
possessing firearms. See Mar. 18, 2014 Minute Entry; Plea Agreement [Dkt. # 20].
Later, on June 21, 2019, the Supreme Court held that prosecutions under § 922(g) require
proof that a defendant “knew he belonged to the relevant category of persons barred from
possessing a firearm.” Rehaifv. United States, 139 S. Ct. 2191, 2200 (2019). Redrick
thereafter filed a motion to vacate his judgment of conviction, pursuant to 28 U.S.C. §
2255, arguing that his § 922(g) conviction was constitutionally defective because he was
not advised of this knowledge-of-status requirement. See Mot. to Vacate J. Under 28
USS.C. § 2255 [Dkt. #49] “Mot. to Vacate”). While the § 2255 motion was pending, the
Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022),
and Redrick now seeks to supplement his original motion with an argument that §

922(g)(1) is unconstitutional as applied to him in light of Bruen. See Mot. to Suppl.

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Current Mot. to Vacate J. [Dkt. #67] (“Mot. to Suppl.”). However, Redrick procedurally
defaulted his Rehaif argument by failing to raise it on direct review, and his motion to
supplement is untimely because he seeks to raise a new theory of relief after the one-year
statute of limitations period for his § 2255 motion has expired. See 28 U.S.C. § 2255(f).
The Court will therefore deny both motions.

I. BACKGROUND

a. Prior Convictions

Between 1985 and 1992, Redrick was convicted of multiple felonies in
Washington, D.C. and Maryland. Specifically, Redrick was convicted of Armed Robbery
- in D.C. Superior Court in 1985 and later sentenced to three and a half to eleven years of
incarceration. See Presentence Investigation Rep. [Dkt. #25] at 9-10. In April 1987,
Redrick was convicted of Robbery with a Deadly Weapon in Prince George’s County
Circuit Court and sentenced to ten years of incarceration. /d. at 13. In June 1991,
Redrick was convicted of Possession with Intent to Distribute PCP and Possession with
Intent to Distribute Marijuana in D.C. Superior Court and was sentenced to three to nine
years of incarceration for the PCP charge and one year for the marijuana change, to be
served concurrently. /d. at 16. And in January 1992, Redrick was convicted of Robbery
with a Deadly Weapon in Prince George’s County Circuit Court and sentenced to 15
years of incarceration. Jd. at 15. After multiple other misdemeanor convictions and
several parole releases and revocations, Redrick was ultimately released from

incarceration on March 31, 2011. Jd. at 18.
b. Felon-in-Possession Prosecution

On April 30, 2013, law enforcement officers executed a parole-violation arrest
warrant for Redrick at his apartment in Washington, D.C. See Statement of Offense [Dkt.
#21] at 2. In connection with the execution of the arrest warrant and a subsequently
obtained search warrant, officers located a Glock semi-automatic pistol, a Glock semi-
automatic handgun, ammunition, assorted drug paraphernalia, cocaine base, loose powder
cocaine, and nearly $25,000 in U.S. currency in Redrick’s apartment. Jd. at 3. After
waiving his Miranda rights, Redrick admitted to law enforcement that the contraband
seized during the execution of the warrants belonged to him and, further, that he made his
living selling cocaine. Jd. Redrick was charged with unlawful possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (iii); unlawful
possession of a firearm and ammunition by a person convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1); and
using, carrying, and possessing a firearm during a drug trafficking offense, in violation of
18 U.S.C. § 924(c)(1). See Indictment [Dkt. #4].

On March 18, 2014, Redrick pleaded guilty to the § 922(g)(1) count and the
Government thereafter dismissed the remaining two counts. See Mar. 18, 2014 Minute
Entry; July 17, 2014 Minute Entry. In the statement of offense, which Redrick admitted
and agreed to as part of his guilty plea, it stated that at the time that Redrick possessed the
firearms and ammunition on April 30, 2013, “he had been convicted of a crime
punishable by imprisonment for a term exceeding one year, including, but not limited to,

the following: (1) Armed Robbery, in D.C. Superior Court Case No. 1983-FEL-6228; (2)

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Possession with Intent to Distribute PCP, in D.C. Superior Court Case No. 1990-FEL-
03027; (3) Possession with Intent to Distribute Marijuana, in D.C. Superior Court Case
No. 1990-FEL-3027; (4) Robbery with a Deadly Weapon, in Maryland Case No.
CT890556X; and (5) Robbery with a Deadly Weapon, in Maryland Case No. CT85-
905A.” Statement of Offense at 3-4.

Because Redrick was prosecuted as an armed career criminal, he was subject to a
15-year mandatory minimum sentence pursuant to 18 U.S.C. § 924(e)(1). Plea
Agreement at 1. In July 2014, Redrick was sentenced to 188 months’ imprisonment and
60 months of supervised release. See Judgment [Dkt. #34] at 2-3. On appeal, Redrick
challenged the application of the Armed-Career Criminal Act (“ACCA”) enhancement, -
but his sentence was affirmed by the D.C. Circuit. United States v. Redrick, 841 F.3d
478, 479-80 (D.C. Cir. 2016). Redrick did not raise any challenges to the guilty plea
itself on direct appeal, nor did he challenge the constitutionality or scope of § 922(g)(1).!

c. Collateral Attack

On June 22, 2020, Redrick filed the instant motion to vacate his conviction under
28 U.S.C. § 2255. See Mot. to Vacate. In that motion, he argued that his guilty plea was
involuntary, and therefore in violation of the Fifth Amendment’s Due Process Clause,
because he was not advised of the element of the § 922(g)(1) offense requiring

knowledge of his felon status. Jd. at 2-3. He further argued that this error in his

'Tn his appeal brief before the D.C. Circuit, Redrick described the scope of his appeal as follows:
“In this appeal, appellant challenges his ACCA-eligibility in light of the Supreme Court’s intervening
decision in Johnson v. United States, 135 8. Ct. 2551 (2015), and the imposition of a sentence beyond his
non-ACCA statutory maximum of 10 years.” Br. for Appellant at 2, United States v. Redrick, No. 14-
3053 (D.C. Cir. Jan. 21, 2016).

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proceeding was structural and required that his guilty plea and conviction be vacated. Jd.
at 3-4. After the parties filed several joint motions to extend the briefing schedule, the
Government filed its opposition on June 7, 2022, arguing that Redrick’s claim was
procedurally barred because he failed to raise it on direct review and had not established
cause and prejudice to excuse his default. See U.S.’s Opp’n to Def.’s Mot. to Vacate J.
Under 28 U.S.C. § 2255 [Dkt. #61] (“Gov’t’s Opp’n”) at 2. Redrick filed a pro se reply
brief on July 12, 2022. See Pet’r’s Resp. to Gov’t’s Opp’n [Dkt. #66] (“Reply Br.”).
While the fully briefed § 2255 motion was pending, Redrick sought to supplement the
motion by raising a new basis for collateral attack on his conviction. See Mot. to Suppl.
at 1. In the Motion to Supplement, Redrick argued that in light of the Supreme Court’s
decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. | (2022), § 922(g)(1)
is unconstitutional as applied to him and this provides another basis to vacate his
conviction. Jd. The Government did not file a response to Redrick’s Motion to
Supplement.
II. LEGAL STANDARD

A federal prisoner may move “to vacate, set aside or correct” his sentence on the
grounds that it “was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). However, § 2255 is subject to several procedural
limitations, including a one-year statute of limitations. See 28 U.S.C. § 2255(f). “Section

2255 is not a substitute for a direct appeal” and in order to prevail on a § 2255 collateral

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challenge, a petitioner “is obliged to show a good deal more than would be sufficient on a
direct appeal from his sentence.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C.
Cir. 1992). Further, in order to raise a claim in a collateral challenge, a petitioner
generally must have first raised the claim on direct review. See Bousley v. United States,
523 U.S. 614, 621 (1998).

“Where a defendant has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Jd. at
622 (citations omitted). To show “cause,” the petitioner must “show that some objective
factor external to the defense” prevented raising the defaulted claim on direct review,
such as government interference or that the factual or legal basis for the claim was not
reasonably available. Murray v. Carrier, 477 U.S. 478, 488 (1986). And to show “actual
prejudice,” he must show that the challenged error “worked to his actual and substantial
disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982). Finally, there is a “narrow exception
to the cause requirement where a constitutional violation has ‘probably resulted’ in the
conviction of one who is ‘actually innocent’ of the substantive offense.” Dretke v. Haley,
541 U.S. 386, 393 (2004) (quoting Murray, 477 U.S. at 496). These procedural
requirements apply with equal force to claims regarding guilty pleas, as “even the
voluntariness and intelligence of a guilty plea can be attacked on collateral review only if

first challenged on direct review.” Bousley, 523 U.S. at 621.
III. ANALYSIS

a. The Petitioner’s Rehaif Claim Fails

Under 18 U.S.C. § 922(g)(1), “[i]t shall be unlawful for any person . . . who has
been convicted in any court of, a crime punishable by imprisonment for a term exceeding
one year” to possess a firearm or ammunition. A separate provision, 18 U.S.C. § 924(a),
provides for the punishment of anyone who “knowingly violates” § 922(g). In Rehaif,
the Supreme Court clarified the mens rea requirement for § 922(g) offenses, holding that
“the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s
status” and “therefore [the Government] must show that the defendant knew he possessed
a firearm and also that he knew he had the relevant status when he possessed it.” 139 S.
Ct. at 2194. But to be clear, Rehaif does not require that the defendant knew of the
criminal prohibition in § 922(g). See United States v. Brown, 845 F. App’x 1, 3 (D.C.
Cir. 2021). Instead, with respect to the status element, “Rehuif requires nothing more
than that the Government prove [Redrick] knew he had been convicted of a crime
punishable by imprisonment of more than one year.” Jd. Finally, because Rehaif
narrowed the scope of conduct that § 922(g) punishes, it is a “substantive” decision that
applies retroactively in the habeas context. See Bousley, 523 U.S. at 620-21; see also
Gov’t’s Opp’n at 15 (conceding that “the government does not contest defendant’s §
2255 motion on grounds of cognizability, timeliness, or retroactivity”).

Redrick argues that Rehaif voids his guilty plea because he was not advised of this
knowledge-of-status element. See Mot. to Vacate at 2-3. However, Redrick did not

challenge the validity of his guilty plea on direct review, and he therefore procedurally

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defaulted the claim he now seeks to advance in his § 2255 motion. See Bousley, 523 U.S.
at 621. When Redrick filed his § 2255 motion in June 2020, he argued that the Rehaif
error was “structural” and required automatic vacatur “regardless of the strength of the
prosecution’s evidence and regardless of whether the error affected the ultimate outcome
of the proceedings.” See Mot. to Vacate at 3-4. However, in Greer v. United States, the
Supreme Court squarely rejected the argument that Rehaif errors are structural. 593 U.S.
503, 513-14 (2021). Instead, “Rehaif errors fit comfortably within the ‘general rule’ that
‘a constitutional error does not automatically require reversal of a conviction.’” Jd. at
514 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). In Greer, the Supreme
Court addressed a Rehaif error raised on direct appeal, rather than collateral review, and
concluded that “[i]n felon-in-possession cases, a Rehaif error is not a basis for plain-error
relief unless the defendant first makes a sufficient argument or representation on appeal
that he would have presented evidence at trial that he did not in fact know he was a
felon.” /d. When the defendant does make such an argument, “the court must determine
whether the defendant has carried the burden of showing a ‘reasonable probability’ that
the outcome of the district court proceeding would have been different” if the defendant
had been advised of the knowledge-of-status element. Jd. The Court also observed that
such a showing will be an “uphill climb” for defendants for the simple reason that “[i]fa
person is a felon, he ordinarily knows he is a felon.” Jd. at 508.

Greer makes clear that the ordinary procedural default rules for § 2255 motions

apply to Rehaif claims such as Redrick’s. And while Greer dealt with a claim raised on
direct appeal, rather than collateral review, it also helps illustrate what will be required
for a defendant to demonstrate “actual prejudice” resulting from a Rehaif error.

Turning to Redrick’s claim, he has failed to show cause for his procedural default.
When Redrick entered his guilty plea, no obstacle prevented his defense counsel from
raising a Rehaif-type challenge. It is no matter that the federal courts of appeals had
previously rejected similar readings of § 922(g). See United States v. Rehaif, 888 F.3d
1138, 1145 n.3 (11th Cir. 2018) (collecting cases). Although a petitioner may show
cause when his claim “is so novel that its legal basis is not reasonably available to
counsel,” Reed v. Ross, 468 U.S. 1, 16 (1984), that exception does not apply when, as
here, “the Federal Reporters were replete with cases” raising the defaulted argument,
Bousley, 523 U.S. at 622. Accordingly, even though Rehaif was not decided until five
years after Redrick entered his guilty plea, that does not provide cause to excuse his
counsel’s failure to raise the argument that ultimately prevailed in Rehaif.

In addition, Redrick has failed to show actual prejudice from the Rehaif error. To
meet that standard, he would need to show that, if the Court “had correctly advised him
of the mens rea element of the offense, there is a ‘reasonable probability’ that he would
not have pled guilty.” Greer, 141 S. Ct. at 508 (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)); see also United States v. Pollard, 20 F.4th 1252, 1256
(9th Cir. 2021). Given that Redrick had at least five prior felony convictions and spent
approximately two decades in and out of prison, there is no reason to believe that it
would have altered Redrick’s decision to plead guilty if he had been advised of the

knowledge-of-status element. See Pollard, 20 F.4th at 1256 (“[W]e often consider a

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defendant’s criminal history to determine whether a Rehaif error was prejudicial.”); see
also United States v. Lavalais, 960 F.3d 180, 184 (Sth Cir. 2020) (“Demonstrating
prejudice under Rehaif will be difficult for most convicted felons for one simple reason:
Convicted felons typically know they’re convicted felons.”’).

Finally, Redrick does not make a plausible claim of actual innocence. The bar for
showing actual innocence is high. To clear it, a petitioner must show “that, in light of the
new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). In his pro se reply brief,
Redrick attempts to argue that he is actually innocent because he “was never told he
- could not own a firearm because he was a felon.” Reply Br. at 2. But as Brown made
clear, knowledge of the criminal prohibition on possessing a firearm as a convicted felon
is not an element of the 922(g) offense. 845 F. App’x at 3. Instead, Rehaif simply
requires that Redrick knew he had been convicted of a crime punishable by a term of
imprisonment of more than one year. See id. And for the same reason that the Rehaif
error was not prejudicial, it follows that Redrick cannot establish actual innocence.

Redrick’s Rehaif claim therefore fails on the basis of procedural default.

b. The Petitioner’s Bruen Claim Is Untimely

In a two-page pro se Motion to Supplement, Redrick now also argues that §
922(g)(1) is unconstitutional as applied to him following the Supreme Court’s decision in
Bruen, in which the Court provided a new framework for analyzing Second Amendment
challenges. See Bruen, 597 U.S. at 17. Under Bruen, if the Second Amendment’s plain

text covers an individual’s conduct, the Government “must demonstrate that the

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regulation is consistent with this Nation’s historical tradition of firearm regulation” and
“To|nly if a firearm regulation is consistent with this Nation’s historical tradition may a
court conclude that the individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’” Jd. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50,
n.10 (1961)). Redrick’s asserted claim under Bruen is not particularly clear, but his pro
se submission must be construed liberally. See United States v. Smith, 136 F. Supp. 3d 4,
7 n.1 (D.D.C. 2015). Applying this principle, Redrick’s argument appears to be that there
is no historical tradition of disarming felons unless they are determined to be dangerous
to the public, and § 922(g)(1)’s blanket prohibition on firearm possession by convicted
felons therefore violates the Second Amendment as applied to him. See Mot. to Suppl. at -
2. He argues that his criminal history is classified as non-violent by the Bureau of
Prisons (“BOP”) and “[s]ince the government has never attempted to prove otherwise he
is non-violent and thus not a risk to the public” and cannot be banned from possessing a
firearm. /d. Notably, he does not acknowledge that his criminal history includes
multiple convictions for armed robbery and rests his entire argument on the classification
of his criminal history assigned by the BOP. Jd.

Setting aside the questionable merits of this argument, it is time-barred. In order
to be timely, a § 2255 motion must be filed within one year of the latest of several dates,
including, as relevant here, the date on which the Supreme Court newly recognizes a right
and makes it retroactively applicable to cases on collateral review. 28 U.S.C. §
2255(f)(3). Although Redrick’s original § 2255 motion was timely based on Rehaif, the

one-year statute of limitations set by Rehaif expired in June 2020. See 139 S. Ct. 2191.

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‘When a petitioner files a timely § 2255 motion, and then later files an untimely amended
or supplemental motion that raises additional claims, the untimely claims are barred by
the statute of limitations unless they ‘relate back’ to the original motion under Federal
Rule of Civil Procedure 15(c).” Espinosa v. United States, 330 F. App’x 889, 891 (11th
Cir. 2009); see also Mayle v. Felix, 545 U.S. 644, 655 (2005). “Under [Rule 15(c)], an
amendment which, by way of additional facts, clarifies or amplifies a claim or theory in
the petition may, in the District Court’s discretion, relate back to the date of that petition
if and only if the petition was timely filed and the proposed amendment does not seek to
add a new claim or to insert a new theory into the case.” United States v. Thomas, 221
F.3d 430, 431 (Gd Cir. 2000). Conversely, an amendment under Rule 15(c) should not be
allowed where the movant seeks to add an entirely new claim or new theory of relief, as
such an amendment would not relate back to the original filing date. Jd. at 436; see also
Mayle, 545 U.S. at 650. Because Bruen is a new theory of relief and Redrick did not
raise the claim until after the one-year statute of limitations expired, Redrick is not
entitled to amend his § 2255 motion to add a claim under Bruen.” The Court will
therefore deny the Motion to Supplement as barred by the statute of limitations in §

2255(f).

* Several district courts have considered and rejected the notion that Bruen recognized any new
Second Amendment right in the context of criminality which would trigger a new one-year statute of
limitations pursuant to § 2255(f)(3). See, e.g., United States v. Hackworth, No 8:19-cr-275, 2023 WL
6587977, at *2 (D. Neb. Oct. 10, 2023); Barragan-Gutierrez v. United States, 668 F. Supp. 3d 1231,
1233-35 (D. Wyo. 2023). Further, if Redrick attempted to rely on Bruen for this purpose, it would
convert his Motion to Supplement into a second or successive habeas petition rather than an amendment
to his original petition. See 28 U.S.C. § 2255(h) (requiring certification by the court of appeals to
authorize a second or successive habeas petition). And finally, Redrick’s Motion to Supplement was filed
in August 2023, more than one year after Bruen was decided in June 2022.

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c. No Evidentiary Hearing Is Required

After careful consideration of “the motion and the files and records of [this] case,”
the Court concludes that no evidentiary hearing is necessary. 28 U.S.C. § 2255(b). The
only factual dispute at issue is whether Redrick knew his felon status at the time of his
offense. But considering the Supreme Court’s guidance in Greer and the substantial
evidence that Redrick knew his felon status—based on his numerous prior qualifying
convictions and the length of time that he spent in prison—an evidentiary hearing on that
issue would not change the Court’s analysis. Accordingly, because the papers and record
“conclusively show that [Redrick] is entitled to no relief,” 28 U.S.C. § 2255(b), the Court
will deny Redrick’s motion without an evidentiary hearing. -

d. The Court Will Not Issue a Certificate of Appealability

When a district court enters a final order resolving a petition under 28 U.S.C. §
2255 that is adverse to the petitioner, it must either issue or deny a certificate of
appealability. See Rules Governing Section 2255 Proceedings for the U.S. District Cts.,
Rule 11(a). By statute, “[a] certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). For the reasons set forth above, the Court concludes that Redrick has not
made such a showing in this case and therefore the Court will not issue a certificate of
appealability. If Redrick intends to file an appeal, he must seek a certificate of
appealability from the United States Court of Appeals for the District of Columbia

Circuit in accordance with Federal Rule of Appellate Procedure 22(b).

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IV. CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate Judgment Under 28
U.S.C. § 2255 and Motion to Supplement are DENIED. An order consistent with this

decision accompanies this Memorandum Opinion.

| j haw Suw!

RICHARD J. LEON
United States District Judge

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