Criminal Law

Dist. Ct. did not err in denying defendant's section 2241 petition, alleging that his post-conviction counsel was ineffective when he filed defendant’s initial section 2255 habeas petition that challenged defendant's capital murder conviction, where post-conviction counsel had failed to raise three additional claims that defendant’s trial counsel was ineffective. Defendant was not eligible for section 2241 relief, where he had unsuccessfully raised 17 other alleged instances of trial counsel being ineffective in initial section 2255 petition, and Ct. rejected defendant’s contention that he could show that initial section 2255 petition was “inadequate” or “ineffective” for purposes of obtaining section 2241 relief. Ct. further noted that there was no formal provision that prevented defendant from raising instant three instances of ineffective assistance of counsel claim in initial section 2255 petition. As such, Ct. found that: (1) once 6th Amendment ineffective assistance of counsel claim has been raised  and rejected in section 2255 petition, that is “end of the line” for defendant; and (2) had defendant raised instant three claims of ineffective assistance of counsel in successive section 2255 petition, Dist. Ct. would have been required to dismiss said petition, even if specific details of trial counsel’s performance were different in second petition.

Defendant was entitled to withdraw his guilty plea to charge of unlawful possession of firearm under section 922(g), where: (1) plea was entered shortly before Rehaif, 139 S.Ct. 2191; (2) Rehaif recognized new requirement in instant firearm offense that govt. establish that defendant knew he belonged to relevant category of persons barred from possessing firearm; and (3) defendant raised plausible argument that he was unaware that his 2008 misdemeanor battery conviction, which formed predicate offense for instant firearm offense, was actually misdemeanor crime of domestic violence that precluded him from possessing firearms. Ct. further noted that it was unclear whether defendant was ever properly notified of nature of 2008 offense or its required elements. As such, defendant has plausible defense under Rehaif and carried his burden of establishing reasonable probability that he would not have pleaded guilty had he known of govt.’s burden under Rehaif.

In prosecution on felon in possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of gun, even though defendant argued that he was subjected to unlawful Terry stop. Record showed that: (1) police officers had received recent report that three black males with guns and wearing red and white shirts were selling drugs at specific address; (2) about one block from said address officers encountered multiple black males wearing red and white shirts; (3) one officer observed defendant, who wore dark navy shirt, grab bulge in pocket of his mesh shorts and face away from officers; (4) when one officer asked defendant to stand up, defendant rose and immediately ran away; and (5) one officer gave chase to defendant and eventually tackled him and learned from defendant that he had gun in his pocket. No seizure occurred prior to tackling of defendant, since defendant did not submit to officers’ authority when he rose and immediately ran away. Moreover, officers had reasonable suspicion to believe that defendant was engaged in criminal activity during their encounter with him, since: (1) officers had observed suspicious bulge in defendant’s pocket near time and place that they had received report of drug selling; and (2) defendant had acted evasively and attempted to flee from officers. Fact that defendant was not wearing red or white shirt did not require different result.

Dist Ct. did not err in imposing 36-month, above guideline term of incarceration on mail fraud charge. While defendant argued that Dist. Ct. failed to take into consideration her diagnosed borderline bipolar disorder and adjustment disorder, Dist. Ct. adequately explained that defendant’s misconduct, which also occurred during her release on bail, was not entirely caused by failure of institutions to provide her with mental health care, and that defendant’s extensive criminal history created doubt that she would stop her criminal behavior at anytime. Moreover, Dist. Ct. did not ignore defendant’s mental health argument and specifically included as condition of probation that defendant seek mental health treatment. Also, Dist. Ct.’s explanation for why defendant deserved above guideline sentence demonstrated why it rejected defendant’s claim for below-guideline sentence.