United States of America v. Israel Paul Garcia

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISRAEL PAUL GARCIA,
Defendant - Appellant.
No. 20-1381
(D.C. No. 1:17-CR-00132-PAB-1)
(D. Colo.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
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Petitioner Israel Paul Garcia—a felon—unlawfully possessed a firearm in
violation of 18 U.S.C. § 922(g)(1). After the Supreme Court’s decision in Rehaif v.
United States, 139 S. Ct. 2191 (2019), Petitioner timely moved to vacate his conviction
and sentence under 28 U.S.C. § 2255. The district court denied the motion on procedural
grounds and declined to issue a certificate of appealability (“COA”). Petitioner appealed
and now seeks a COA from this Court.
We will grant a COA only if Petitioner makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the showing, Petitioner must
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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demonstrate that “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.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citation and quotation marks omitted). Because the district
court denied the petition on procedural grounds, we will grant a COA if Petitioner shows
that reasonable jurists could debate both “whether the petition states a valid claim of the
denial of a constitutional right” and “whether the district court was correct in its
procedural ruling.” Id. Our jurisdiction arises under 28 U.S.C. § 1291 and § 2253(c).
We decline to issue a COA and dismiss the appeal.
I.
Petitioner called law enforcement to report an armed man running through the
neighborhood. When police officers arrived at Petitioner’s home, they found him armed
with a rifle. Officers arrested Petitioner, searched his home, and found assorted rifles, a
handgun, and a homemade silencer. Petitioner has prior felony convictions, so the
government obtained an indictment charging Petitioner with two counts of possession of
a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and one count of possession of
an unregistered firearm in violation of 26 U.S.C. § 5861(d). Petitioner agreed to plead
guilty to one of the § 922(g) counts, and, in return, the government agreed to dismiss the
remaining counts. At the change of plea hearing, the district court informed Petitioner of
the elements of the offense, and Petitioner acknowledged his understanding of them:
First: the Petitioner knowingly possessed firearms as charged in the
indictment.
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Second: the Petitioner was convicted of a felony, that is, a crime punishable
by imprisonment for a term exceeding one year, before he possessed the
firearm; and
Third: before the Petitioner possessed the firearm, the firearm had moved at
some time from one state to another.
Petitioner never objected to his plea agreement nor did he file a direct appeal.
At the time of Petitioner’s plea, we required knowledge of conduct only (that he
knowingly possessed a firearm), and not of status (that he knew he was a felon). See
United States v. Silva, 889 F.3d 704, 711 (10th Cir. 2018). After Petitioner’s conviction,
however, the Supreme Court decided Rehaif. In that case, the Court held that
“knowingly,” the first element of § 922(g), applied to “both the defendant’s conduct and
to the defendant’s status.” Rehaif, 139 S. Ct. at 2195. So Petitioner moved to vacate his
conviction under 28 U.S.C. § 2255, because the district court omitted the knowledge of
status element from his plea colloquy, thereby rendering his plea “constitutionally
invalid.”
Generally, a Petitioner cannot collaterally attack a voluntary and intelligent guilty
plea. Bousley v. United States, 523 U.S. 614, 621 (1998). But before the district court,
the government conceded and the district court acknowledged that (1) Rehaif applies
retroactively to Petitioner’s case and (2) his guilty plea cannot be voluntary and
intelligent if the Petitioner is unaware of an element of his crime. So Petitioner’s plea
was neither voluntary nor intelligent and is, therefore, subject to collateral attack. Even
so, Petitioner cannot collaterally attack the intelligence of his guilty plea unless he first
raised that argument on direct review. Id. Failure to do so constitutes a procedural
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default and ordinarily precludes relief. See Reed v. Farley, 512 U.S. 339, 354 (1994).
Petitioner did not challenge his guilty plea on direct review, so he procedurally defaulted
his claim. To proceed, as we discuss below, he must overcome the default by showing
cause and prejudice.
II.
The district court determined that Petitioner could not meet the burden required to
overcome his procedural default. To obtain a COA, Petitioner must establish that
reasonable jurists could debate the district court’s ruling that he did not overcome his
procedural default. See Slack, 529 U.S. at 484. To overcome the procedural default,
Petitioner must “demonstrate either cause and actual prejudice, or that he is actually
innocent.”1 Bousley, 523 U.S. at 622 (citations and internal quotation marks omitted).
Petitioner can establish cause where a claim is “so novel that its legal basis is not
reasonably available to counsel.” Id. (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)).
Petitioner argued before the district court that Rehaif overturned near-unanimous lower
court authority. As a result, Petitioner contends, his claim was so novel that it was
unavailable to him at the time of his plea. The district court agreed and held that
Petitioner established cause. We, too, agree that Petitioner established cause. See Reed,
468 U.S. at 17.
But a finding of “cause” does not end the inquiry—Petitioner must still show
prejudice. To establish prejudice, Petitioner must show the district court’s error is one
1 Petitioner does not argue actual innocence, so we do not address it.
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“‘of constitutional dimensions’ that ‘worked to his actual and substantial disadvantage.’”
United States v. Snyder, 871 F.3d 1122, 1128 (10th Cir. 2017) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)). The Petitioner must “shoulder the burden of showing”
more than a mere “possibility of prejudice.” Frady, 456 U.S. at 170. Because the context
here is a defective guilty plea, Petitioner must show “there is a reasonable probability
that, but for [the error], he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). We conclude that reasonable
jurists could not debate whether the district court correctly found a lack of prejudice.
Although Petitioner established cause, the district court held that Petitioner failed
to establish prejudice. The district court gave two reasons. First, Petitioner failed to
fulfill his burden to establish prejudice. Rather than establishing a reasonable probability
that he would have gone to trial, Petitioner simply argued the government would be “hard
pressed” to show his knowledge of prohibited status. The district court held that this
statement was immaterial because it was “not the government’s burden to establish a lack
of prejudice,” but Petitioner’s burden to show its presence. Second, the district court
reasoned that the charge for possession of an unregistered firearm, which does not depend
on any status, did not require the government to prove Petitioner knew of his felon status.
Therefore, the government could have likely presented Petitioner with enough evidence
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on that charge to induce Petitioner to plead guilty (perhaps in exchange for dismissing the
§ 922(g) charges) and dissuade him from pursuing a trial.2
Petitioner has not shown a reasonable probability he would have demanded a trial
had the district court informed him of the proper elements of § 922(g). In his petition,
and in his brief here, Petitioner mischaracterizes his burden. Petitioner merely describes
the nature of his prior convictions and argues the potential difficulty of proving his
knowledge of his felon status. Petitioner points out that the convictions are twenty-five
years old and that he served less than ninety days in jail. But showing the difficulty of
establishing an element does not alone show a reasonable probability he would have gone
to trial—the necessary showing for prejudice.
For one thing, Petitioner bears the burden to show prejudice, not the government.
Frady, 456 U.S. at 170. Petitioner must, therefore, show actual evidence that, or
otherwise convince us that, he would have gone to trial but for the district court’s error.
Hill, 474 U.S. at 59. He has not met that burden. The timeline and the age of Petitioner’s
previous convictions are insufficient without some connection to Petitioner’s reasoning
for going or not going to trial. Petitioner infers, based on a string of assumptions, that
because his sentences are old and he served no prison time, the government would
struggle to prove he knew his felon status, and therefore he would not have pleaded
guilty. Although interesting, Petitioner’s arguments do not sufficiently show a
2 Petitioner vigorously challenges the district court’s second reasoning, but
regardless of the district court’s second reason or Petitioner’s alternative arguments, we
decline to consider them or endorse either side.
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reasonable probability that he would have gone to trial. He has offered no evidence that
he did not know of his prohibited status, nor has he given sufficient evidence-based or
record-based reasoning that makes his choice of a trial probable.
Petitioner points to United States v. Trujillo, 960 F.3d 1196, 1207 (10th Cir.
2020), where we said, “if the evidence of a [petitioner’s] knowledge of his felony status
is weak, we can presume his substantial rights were affected because he might have
proceeded to trial if he had known the government would be required to prove he knew
he was a felon.” But this cherry-picked language does not help him. We stated this
presumption in the context of the third prong of plain-error review—whether a
Petitioner’s substantial rights are being affected. Id. at 1206-07. Because Trujillo
discussed a different context than the more burdensome cause-and-prejudice standard,
Petitioner’s reliance on the case is misplaced.
Our decision in United States v. Harms, 371 F.3d 1208 (10th Cir. 2004) is more
on-point. The defendant in Harms, like Petitioner, failed to demonstrate actual prejudice
to overcome his procedurally barred claim. Id. at 1212. The defendant was unaware and
uninformed of the distinction between “virtual” and “actual” child pornography, so he
pleaded guilty and abandoned trial. Id. After the Supreme Court held the prohibition of
virtual child pornography unconstitutional, see Ashcroft v. Free Speech Coalition, 535
U.S. 234, 258 (2002), the defendant moved to vacate his sentence, Harms, 371 F.3d at
1209. On appeal, we held the defendant could not establish prejudice to overcome his
procedural default below because, like Petitioner, the defendant put forth no evidence that
he would have gone to trial. Id. at 1212. Like Petitioner’s failure to show evidence that
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he did not know of his status, the defendant failed to show evidence that the pornography
he possessed was actually virtual and legal. Id. Like Petitioner, who only states that the
government would be “hard-pressed” to show his knowledge, the defendant in Harms
only claimed no evidence in the record could support “that he would not have gone to
trial.” Id. Neither argument will suffice.
Petitioner did not satisfy his burden of showing prejudice. He has not convinced
us that reasonable jurists could debate whether the district court’s decision was correct.
For these reasons, we decline to issue a COA and dismiss the appeal.
DISMISSED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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