United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE
prisoner Mandel Benson has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, challenging his
2011 conviction of knowingly being a felon in possession of a
handgun, in violation of 18 U.S.C. §§ 922(a)(2) and
922(g)(1). Petitioner contends that his conviction is invalid
under the Supreme Court's recent decision in Rehaif
v. United States, 136 S.Ct. 2243 (June 21, 2019),
because the government did not prove all of the elements of
the offense. However, Rehaif does not support
petitioner's claim for relief. Accordingly, I am denying
Mandel Benson is incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin. He was convicted after a
jury trial in the United States District Court for the
District of Minnesota of being a felon in possession of a
handgun, in violation of 18 U.S.C. § 922(a)(2) and
922(g)(1). The trial court concluded that petitioner's
three prior felony convictions qualified him as an armed
career criminal within the meaning of 18 U.S.C. §
924(e). It then imposed a sentence of 235 months of
imprisonment. The Court of Appeals for the Eighth Circuit
affirmed petitioner's conviction. United States v.
Benson, 686 F.3d 498 (8th Cir. 2012). Petitioner has
filed several unsuccessful postconviction motions, including
a previous § 2241 petition in this court. Benson v.
Marske, 18-cv-670-bbc (dismissed Nov. 15, 2018).
a federal prisoner challenging his conviction or sentence
must do so on direct appeal or in a motion filed under 28
U.S.C. § 2255 in the district in which he was convicted.
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
Under certain circumstances, however, a federal prisoner
“may petition under section 2241 instead if his section
2255 remedy is ‘inadequate or ineffective to test the
legality of his detention.'” Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012) (quoting 28
U.S.C. § 2255(e)). A petitioner who seeks to invoke the
savings clause of § 2255(e) in order to proceed under
§ 2241 must: (1) be relying on a new case of statutory
interpretation, rather than on a constitutional case; (2)
show that the new rule applies retroactively on collateral
review and could not have been invoked in an earlier §
2255 petition; and (3) show that the error is “grave
enough to be deemed a miscarriage of justice.”
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016);
Light v. Caraway, 761 F.3d 809, 812-13 (7th Cir.
2014); In re Davenport, 147 F.3d 605, 611-12 (7th
instance, petitioner contends that he has satisfied the first
condition because he is relying on Rehaif, 136 S.Ct.
2243, a new case of statutory interpretation. The question in
Rehaif was whether, in a prosecution under §
922(g) and § 924(a)(2), the government had to prove to
the jury that Rehaif knew that he was an alien
“illegally or unlawfully in the United States, ”
which barred him from possessing a firearm. The Court
concluded that the government indeed needed to prove that
Rehaif knew that he was in illegal alien status.
Rehaif, 139 S.Ct. at 2200 (“[I]n 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.”). I need not decide whether Rehaif
qualifies as a new case of statutory interpretation that is
retroactive on collateral review, because it is clear that
petitioner cannot identify an error that would amount to a
miscarriage of justice.
contends that under the Supreme Court's decision in
Rehaif, he could be convicted under § 922(g)(1)
only if the government proved that petitioner (1) possessed a
gun, and (2) knew that it was illegal for him to possess a
gun. However, petitioner is misreading Rehaif. The
government did not need to prove that petitioner specifically
knew that he was legally prohibited from possessing a
firearm. Rather, as applied to this case, Rehaif
required the government to prove that petitioner knew that he
was a felon at the time he possessed a firearm. Assuming that
the government failed to put in evidence sufficient to prove
that petitioner knew he was a felon, any error was harmless.
Petitioner does not deny that he knew he had been convicted
of a felony at the time he possessed a firearm. He states
that he stipulated at trial that he was a felon, and court
records from his criminal case show that he had been
convicted of at least five prior felonies, including three
for violent robberies. Dkt. #117 at 19 in D. Minn. case no.
10-cr-269-dsd-jsm. In light of his extensive criminal
history, petitioner has provided no basis to conclude that a
reasonable juror could have inferred that he was somehow
unaware that he had been convicted of one or more felonies
when he possessed the firearm. Therefore, the
government's failure to prove this element of the offense
was harmless, and did not amount to a miscarriage of justice.
Accordingly, petitioner has not shown that he is entitled to
relief under § 2241.
Rule 11 of the Rules Governing Section 2254 Cases (which can
be applied to cases under § 2241 as well), the court
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. The question
is whether “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotations and citations omitted).
Petitioner has not made a substantial showing of a denial of
a constitutional right so no certificate will issue.
Petitioner Mandel Benson's petition for a writ of
certiorari under 28 U.S.C. § 2241 is DENIED.
Petitioner is DENIED a certificate of appealability.
clerk of court is directed to enter judgment ...