United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM ORDER AND OPINION
E. Aspen United States District Judge
received Petitioner Montez Gray's motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Dkt. No. 1.) Petitioner Gray did not file a reply
to the government's response brief on or before the
extended deadline of October 12, 2019. (See Dkt. No.
Gray was charged with being a felon in possession of a
firearm and conspiracy to possess with intent to distribute
100 grams or more of heroine in two separate cases. (Pet. to
Enter Guilty Plea (Dkt. No. 60.)) Only the charge of being a
felon in possession of a firearm is at issue in
Petitioner's § 2255 petition. (Pet. Mem. in Support
of Pet. Mot. (“Pet. Mem.”) (Dkt. No. 4) at 1.)
October 14, 2014, Nashville Police Department officers
conducted a traffic stop on a silver Nissan Altimata, in
which petitioner was present, for making an improper turn.
(Plea Agreement (Dkt. No. 60) ¶ 8(b).) During a search
of the vehicle, an officer located a Glock 9mm pistol on the
floor board behind the front passenger's seat.
(Id.) A records check was conducted on that firearm
revealed that it was stolen. (Id.) Federal agents
confirmed the firearm was not manufactured in Tennessee and
thus was in and affecting interstate commerce. (Id.)
Gray was taken into custody and advised of his
Miranda rights. (Id. ¶ 8(c).) Gray
stated he “had the firearm for approximately one month,
that he paid $700 for the firearm, that he had it for
protection, and that he had been previously convicted of
a felony.” (Id. (emphasis added)) Petitioner was
charged with knowingly possessing a firearm having previously
been convicted of a crime punishable by imprisonment for a
term exceeding one year. (Id. ¶ 8(a).)
addition to Gray signing a statement that he knew he was
previously convicted of a felony, Petitioner's plea
agreement also explicitly incorporated discussion of his
prior conviction. The agreement explained Petitioner
“is a previously convicted felon” who was
“convicted of possession with intent to distribute less
than .5 grams of cocaine, a Class C felony, on Juanary 20,
2010, in the Davidson County Criminal Court.” (Id.
¶ 8(d).) Finally, the agreement clarified
Petitioner “received a sentence of imprisonment of six
years” on that charge. (Id.)
entered a plea of guilty that included terms typical of such
a plea. First, Petitioner waived his trial rights, such as
the right to a speedy trial, right to a trial by jury, and
right to confront witnesses against him. (Id.
¶¶ 6-7.) Second, Petitioner acknowledged he
“hereby waives all (i) rights to appeal any issue
bearing on the determination whether he is guilty of the
crime(s) to which he is agreeing to plead guilty; and (ii)
trial rights that might have been available if he exercised
his right to go to trial.” (Id. ¶ 24.)
Petitioner also “knowingly waiv[ed] the right to appeal
any sentence within or below the guideline range.”
(Id.) Finally, Petitioner “knowingly waive[d]
the right to challenge the sentence imposed in any . . .
collateral attack, including, but not limited to, a motion
brought pursuant to 28 U.S.C. § 2255 and/or §
2241.” (Id. ¶ 25.) Petitioner did
not file a direct appeal in this case. (Gov. Mem. in Opp. to
Pet. (“Gov. Mem.”) (Dkt. No. 3) at 3.) Gray filed
this petition to vacate his sentence in light of the Supreme
Court's decision in Rehaif v. U.S., - U.S. -,
139 S.Ct. 2191 (2019). (Dkt. No. 1.)
construe Petitioner's pro se petition liberally.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200 (2007) (“A document filed pro se is to be
liberally construed, . . . . and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” (quoting
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,
292 (1976)).); see also Johnson v. U.S., No. 17 C
5753, 2019 WL 3779366, at *2 (6th Cir. Aug. 12, 2019)
(quoting Erickson for this proposition).
Nevertheless, for the foregoing reasons we deny
Petitioner's request for relief in light of the Supreme
Court's Rehaif decision.
plea agreement waives his right to attack his sentence using
precisely the method he attempts here. “It is
well-settled that a knowing and voluntary waiver of a
collateral attack is enforceable.” Slusser v.
U.S., 895 F.3d 437, 439 (6th Cir. 2018), cert. denied,
139 S.Ct. 1291 (2019) (citing Watson v. U.S., 165
F.3d 486, 489 (6th Cir. 1999)); see also Vowell v.
U.S., 938 F.3d 260, 266-67 (6th Cir. 2019) (reaffirming
the general proposition that “subsequent changes in the
law did not render an otherwise valid waiver unknowing or
involuntary”). A “collateral attack on an illegal
sentence does not undermine the knowing and voluntary waiver
of any right, even a constitutional right, by means of a plea
agreement.” Slusser, 895 F.3d at 439
(quotation omitted). “A voluntary plea agreement
‘allocates risk,' and ‘[t]he possibility of a
favorable change in the law after a plea is simply one of the
risks that accompanies pleas and plea agreements.'”
Id. at 440 (quoting U.S. v. Morrison, 852
F.3d 488, 490 (6th Cir. 2017)). ““By waiving the
right to appeal, a defendant assumes the risk that a shift in
the legal landscape may engender buyer's remorse.”
Id. (quoting Morrison, 852 F.3d at 490).
“The subsequent developments in this area of the law do
not suddenly make [a defendant's] plea involuntary or
unknowing or otherwise undo its binding nature.”
Id. (quotation and formatting omitted).
“[E]ven the voluntariness and intelligence of a guilty
plea can be attacked on collateral review only if first
challenged on direct review.” Bousley v. U.S.,
523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998).
claim is buyer's remorse of the kind the Sixth Circuit
repudiated in Slusser. Gray pled guilty, knowingly
and voluntarily waiving his rights to attack the
constitutionality of his sentence in his plea. (Plea
Agreement ¶ 24-25.) In doing so, Gray assumed the risk
that subsequent developments in the law would favor him,
trading certainty of a shorter sentence for the slim chance
of a positive development in Supreme Court precedent in his
favor. Thus, Gray's waiver of his right of appeal as part
of his guilty plea prevents him from attacking his guilty
plea through a petition for habeas corpus, even when the law
changes in his favor. Nothing in Gray's petition, the
plea agreement, or the briefing here suggests Gray was in any
way coerced into pleading guilty and waiving his right to
attack his conviction using a habeas proceeding. Finally,
even if Gray wished to make such an argument, he would have
needed to do so on direct appeal, which he did not do.
See Bousley, 523 U.S. at 621, 118 S.Ct. at 1610. As
a result, Gray's habeas petition must be denied as
Substance of Petitioner's Claim
petitioner does not challenge the validity of his plea on
direct appeal, then he has procedurally defaulted his claim.
Bousley, 523 U.S. at 621, 118 S.Ct. at 1610.
“[T]he general rule [is] that claims not raised on
direct appeal may not be raised on collateral review unless
the petitioner shows cause and prejudice.” Massaro
v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690, 1693 (2003).
Alternatively, the defendant may show he is “actually
innocent.” Bousley, 523 U.S. at 622, 118 S.Ct.
at 1611. Although claims that are “so novel that
[their] legal basis is not reasonably available to counsel
may constitute cause for a procedural default, ” claims
about the statutory language that have been repeatedly
litigated do not qualify. Id. (quotation omitted).
In Bousley the Supreme Court declined to except from
procedural default petitioner's argument that the federal
firearm possession statute's ...