United States of America v. Mack Edward Harris

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MACK EDWARD HARRIS,
Defendant-Appellant.
No. 21-35633
D.C. No.
1:13-cr-00098-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted July 6, 2022**
Portland, Oregon
Before: WATFORD, R. NELSON, and LEE, Circuit Judges.
Mack Edward Harris appeals from the district court’s order dismissing his
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. We
affirm.
1. The district court correctly concluded that Harris’s claim under Rehaif v.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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United States, 139 S. Ct. 2191 (2019), was procedurally defaulted and that, while
he has established cause to excuse his procedural default, he has not shown actual
prejudice. See United States v. Frady, 456 U.S. 152, 167 (1982).
Rehaif requires the government to prove beyond a reasonable doubt that a
defendant knew he had the relevant status under 18 U.S.C. § 922(g). See 139 S.
Ct. at 2200. For Harris, that means proof that he knew he had been convicted of a
crime punishable by more than one year in prison and a misdemeanor crime of
domestic violence. 18 U.S.C. § 922(g)(1), (9). Evidence of a defendant’s
knowledge can be either direct or circumstantial, and Harris’s criminal history
provides strong circumstantial evidence that he was aware of his status under
§ 922(g)(1) and (g)(9). See United States v. Pollard, 20 F.4th 1252, 1256 (9th Cir.
2021).
With respect to his § 922(g)(1) conviction, Harris had seven prior felony
convictions, and he was actually sentenced to more than one year in prison twice.
At trial, the government also introduced a signed 2004 guilty plea in which Harris
acknowledged that he was pleading guilty to two felonies. While this
acknowledgement is not conclusive of Harris’s awareness of his status under
§ 922(g)(1), it likewise constitutes strong circumstantial evidence. See United
States v. Werle, 35 F.4th 1195, 1206 (9th Cir. 2022). With respect to his
§ 922(g)(9) conviction, Harris had at least nine prior convictions for misdemeanor

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domestic violence offenses.
Harris has not identified any “objective basis in the record” that might have
led a jury to believe, in spite of this evidence, that he was unaware he had been
convicted of a crime punishable by more than one year in prison and a
misdemeanor crime of domestic violence. Id. at 1207 n.7. Thus, Harris has failed
to show that the Rehaif error “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S.
at 170.
2. The district court correctly concluded that Harris’s double jeopardy claim
is time-barred. Harris’s convictions became final on October 2, 2017, and his
§ 2255 motion was not filed within the one-year limitations period. See 28 U.S.C.
§ 2255(f). Harris argues that his double jeopardy claim is timely because it is
intertwined with his Rehaif claim and was filed within one year of the Supreme
Court’s decision in that case. But Harris’s double jeopardy claim does not depend
on his Rehaif claim, and the former claim has been available since at least 2014.
See United States v. Mavromatis, 769 F.3d 1194, 1195 (9th Cir. 2014).
Harris also argues that double jeopardy claims should be categorically
exempt from § 2255’s limitations period. He contends that such claims are exempt
from § 2254’s exhaustion requirement and that the same type of exception should
apply here. There is, however, no double jeopardy exception to § 2254(b)(1)(A).

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While a § 2254 petitioner need not wait for a final state court judgment to bring a
double jeopardy claim, the petitioner must still exhaust whatever state remedies are
available. See Greyson v. Kellam, 937 F.2d 1409, 1412–13 (9th Cir. 1991). Harris
offers no other basis for his proposed double jeopardy exception to § 2255(f).
AFFIRMED.

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