United States District Court, D. Nebraska
MEMORANDUM AND ORDER
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 55)
filed by the defendant, Israel Mileage. The motion was timely
filed less than 1 year after the defendant's conviction
became final. See § 2255(f). The Court's
initial review is governed by Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States
District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
A § 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show the movant is entitled to no relief. §
2255(b); Dat v. United States, 920 F.3d 1192, 1194
(8th Cir. 2019). Accordingly, a motion to vacate under §
2255 may be summarily dismissed without a hearing if (1) the
movant's allegations, accepted as true, would not entitle
the movant to relief, or (2) the allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements
of fact. Ford v. United States, 917 F.3d 1015, 1026
(8th Cir. 2019).
defendant was convicted in this Court in 2013 of one count of
attempted possession of cocaine base with intent to
distribute it. No. 4:13-cr-3032 filing 64. He was sentenced
to 70 months' imprisonment, which was later reduced to 60
months. No. 4:13-cr-3032 filing 64 and filing 83.
2018, having been released, the defendant was arrested in
possession of a handgun. Filing 47 at 4. He was charged with
a single count of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Filing 1. He pled guilty, see filing 39,
and was sentenced to 45 months' imprisonment, filing 55.
defendant's § 2255 motion is based on Rehaif v.
United States, in which the Supreme Court held that
"in a prosecution under 18 U.S.C. § 922(g) and
§ 924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm." 139 S.Ct. 2191, 2200 (2019);
see United States v. Hollingshead, No.
17-2951, slip op. at 6 (8th Cir. Oct. 3, 2019). The defendant
insists that "the government failed to prove that he
Knowingly possessed a firearm, and that he knew he
fell within the relevant status." Filing 55 at 4. So,
the defendant concludes,
he never knowingly posses[s]ed the firearm in question, and
he never was aware that he fell within the relevant status of
a prohibited person, nor was he ever informed by previous
counsel or the court. In light of said facts he concludes
that his due process right under the Fifth Amendment was
infringed upon, because he never adequately was informed or
Filing 55 at 5.
problem with the defendant's argument is that it's
contradicted, repeatedly, by the record from his drug
conviction. In his petition to enter a guilty plea, the
defendant acknowledged that his plea meant he would be
convicted of a felony, and that a "felony conviction may
deprive you of valuable civil rights, such as the right to
vote, to hold public office, to serve on a jury and to
possess any kind of firearm." No. 4:13-cr-3032
filing 48 at 3 (emphasis supplied). At his change of plea
hearing the Court specifically advised him that "[w]ith
a guilty plea there will be a felony conviction and
with that felony conviction comes the loss of civil rights.
Those rights include the right to vote, the right to serve on
a jury, the right to hold a public office, the right to
carry a weapon." No. 4:13-cr-3032 filing 54 at 9
(emphasis supplied). The defendant said he understood. No.
4:13-cr-3032 filing 54 at 9.
defendant was certainly aware that he was convicted of a
felony, and specifically that he had been convicted of a
crime punishable by imprisonment for a term exceeding one
year (having served more than a year), and even more
specifically that he was barred from possessing a
firearm. See United States v. Williams,
776 Fed.Appx. 387, 388 (8th Cir. 2019). The defendant's
claims that he was not aware of his previous conviction and
that he was not advised of them by previous counsel or the
Court cannot be accepted as true because they are
contradicted by the record. See Walker v. United
States, 810 F.3d 568, 580 (8th Cir. 2016).
defendant's allegations either entitle him to no relief,
or are contradicted by the record. Accordingly, his §
2255 motion will be summarily dismissed. A movant cannot
appeal an adverse ruling on his § 2255 motion unless he
is granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of
appealability cannot be granted unless the movant "has
made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make such a
showing, the movant must demonstrate that reasonable jurists
would find the Court's ...