United States of America v. Givhan

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
By way of a guilty plea, Patrick Givhan admitted to possessing, on February
23, 2024, a Glock firearm and a large-capacity magazine compatible with that
firearm. (ECF No. 18, PageID.40.) Givhan further admitted that at the time he
possessed this firearm, he had previously been convicted of a felony offense and knew
of his felony status. (Id.) He also admitted that the firearm he possessed traveled in
interstate commerce. (Id.) These admissions created an adequate factual basis for a
conviction of being a felon in possession of a firearm. See Rehaif v. United States, 588
U.S. 225, 227 (2019). Thus, the Court accepted Givhan’s guilty plea and ultimately
sentenced him on November 19, 2024, to 48 months’ imprisonment. (ECF No. 28.)
Less than a year later, on August 25, 2025, Givhan filed a motion to vacate his
sentence under 28 U.S.C. § 2255. (ECF No. 32.) The basis is not entirely clear. But a
fair reading seems to be that Givhan believes the Supreme Court’s ruling in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) renders him “actually innocent,”
UNITED STATES OF AMERICA,
Plaintiff,
v.
PATRICK HENRY GIVHAN,
Defendant.
Case No. 24-20170
Honorable Laurie J. Michelson
OPINION AND ORDER ON DEFENDANT’S
POST-CONVICTION MOTIONS [31, 32]
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such that his conviction and sentence should be vacated on collateral review. (ECF
No. 32, PageID.241.) Givhan’s arguments not only fail legally, but he waived his right
to even bring them. Thus, his § 2255 motion is DENIED.
A prisoner in custody under a sentence imposed by a federal court may move
the court to vacate, set aside, or correct his sentence on certain grounds, including
that “the sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a).
“To prevail under § 2255, a defendant must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or
influence on the guilty plea” or “must show a fundamental defect in his sentencing
which necessarily results in a complete miscarriage of justice or an egregious error
violative of due process.” Wright v. United States, 182 F.3d 458, 463 (6th Cir. 1999).
It is the defendant’s burden to show his entitlement to relief. See Potter v. United
States, 887 F.3d 785, 787–88 (6th Cir. 2018).
In evaluating a § 2255 motion, an evidentiary hearing is not required if the
defendant’s allegations “cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact.”
Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007). In other words, a
hearing is not necessary if the motion, record of prior proceedings, and governing law
“conclusively show that the [defendant] is entitled to no relief.” 28 U.S.C. § 2255(b);
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see Rules Governing Section 2255 Proceedings for the United States District Courts,
28 U.S.C. § 2255, Rule 4(b) (amended 2019).
Here, there are no disputed factual issues. The motion raises purely legal
issues that can be decided on the current record.1 So there is no need for a hearing.
Nor, as the Court explains below, is there a basis to grant Givhan’s requested relief.
At the outset, the Court addresses Givhan’s precursor “motion for tolling
consideration/access-to-the-courts claim.” (ECF No. 31.)
Also less than clear, the essence of this motion appears to be that the conditions
of Givhan’s confinement prevented him from timely filing a motion under 28 U.S.C.
§ 2255. But Givhan timely filed his motion within a year of the judgment becoming
final. 28 U.S.C. § 2255(f). So no tolling is needed. If, however, Givhan wants to
challenge those conditions of confinement, his § 2255 motion is not the proper vehicle.
See United States v. Cisneros, No. 12-132, 2019 U.S. Dist. LEXIS 183749, at *64 (W.D.
Mich. Oct. 24, 2019); United States v. Gonyea, No. 94-80346, 2012 U.S. Dist. LEXIS
151202, at *5 (E.D. Mich. Oct. 22, 2012); Berryhill v. United States, No. 15-815, 2016
WL 2610258, at *8 (N.D. Ohio May 6, 2016) (collecting cases). Instead, he would need
to bring a separate civil rights action, if warranted, pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in the
appropriate venue. Berryhill, 2016 WL 2610258, at *8; see also United States v.
1 The government responded to Givhan’s motion (ECF No. 38) and he did not
file a reply.
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Bradley, No. 06-20416, 2012 U.S. Dist. LEXIS 109287, at *7 (W.D. Tenn. Aug. 6, 2012)
(“To 	the 	extent 	Bradley 	believes 	her 	conditions 	of 	confinement 	violate 	her
constitutional 	rights, 	she 	must 	file 	the 	appropriate 	complaint 	pursuant 	to
Bivens . . . in the district of her confinement.”).
Thus, Givhan’s motion for tolling is DENIED to the extent it is not needed for
the Court to now address his § 2255 motion (ECF No. 32).
Turning to that motion, the analysis begins and ends with Givhan’s plea
agreement. In that agreement, Givhan was advised of the many rights he would
waive by pleading guilty. (ECF No. 18.) This included his right to “collateral review.”
(Id. at PageID.49.) That is, Givhan expressly agreed not to challenge his conviction
or sentence “on any grounds under 28 U.S.C. § 2255,” except for a properly raised
claim of ineffective assistance of counsel or prosecutorial misconduct (id.), neither of
which are raised by Givhan in the instant motion (ECF No. 32).
A defendant may waive any right, constitutional or statutory, through a plea
agreement. United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005). “It follows
that a defendant may waive his right to bring future postconviction challenges, which
are not constitutionally required, so long as the waiver is knowing and voluntary.”
Portis v. United States, 33 F.4th 331, 335 (6th Cir. 2022) (citing Watson v. United
States, 	165 	F.3d 	486, 	489 	(6th 	Cir. 	1999)). 	Givhan 	does 	not 	challenge 	the
voluntariness of the plea, nor could he. Under Federal Rule of Criminal Procedure
11, the Court must ensure that “the defendant understands his or her applicable
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constitutional rights, the nature of the crime charged, the consequences of the guilty
plea, and the factual basis for concluding that the defendant committed the crime
charged” before accepting the defendant’s plea. United States v. Webb, 403 F.3d 373,
378–79 (6th Cir. 2005). The Court did so here through a thorough plea colloquy.
Accordingly, Givhan’s plea was unquestionably made knowingly and voluntarily.
In sum, the collateral review waiver in Givhan’s plea agreement precludes this
collateral review motion.
Even if it did not, Givhan’s motion still fails on the merits.
Givhan did not raise any Second Amendment challenge to his conviction on
direct appeal (likely due to the separate appeal waiver in his plea agreement (ECF
No. 18, PageID.49)). And claims not raised on direct appeal may not be raised on
collateral review unless the petitioner shows either “cause and actual prejudice, or
that he is actually innocent.” Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir.
2011) (internal quotation marks omitted) (quoting Bousley v. United States, 523 U.S.
614, 622 (1998)); see also Wallace v. United States, 43 F.4th 595, 602 (6th Cir. 2022)
(explaining that “[u]nder the Supreme Court’s procedural-default rule,” a defendant’s
failure to raise a claim “during the ‘main event’ (his criminal litigation) means that
he presumptively cannot raise it in an after-the-fact § 2255 motion”). Givhan makes
no attempt to establish cause or prejudice. These arguments, therefore, have been
forfeited. See Tri-State Wholesale Bldg. Supplies, Inc. v. NLRB., 657 F. App’x 421,
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425 (6th Cir. 2016) (noting that the Sixth Circuit has “consistently held that
arguments not raised in a party’s opening brief . . . are waived, or at least forfeited”).
So that leaves actual innocence. To establish actual innocence, “a petitioner
must demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.” Phillips v. United States, 734 F.3d 573,
582 (6th Cir. 2013) (quoting Bousley, 523 U.S. at 623); accord Waucaush v. United
States, 	380 	F.3d 	251, 	254 	(6th 	Cir. 	2004). 	“[A]ctual 	innocence 	means 	factual
innocence, not mere legal insufficiency.” Phillips, 734 F.3d at 582 (internal quotation
marks omitted). Thus, the Court must look at all the evidence of guilt in the record
and determine whether, as a matter of law, the government could establish that
Givhan violated the felon in possession statute. Waucaush, 380 F.3d at 254.
The Court does not need to look beyond the plea agreement and the description
of the offense conduct in the Presentence Report (to which there was no objection) to
conclude that Givhan was guilty of being a felon in possession of a firearm. He
admitted all of the elements that the Supreme Court requires under Rehaif, including
that “he knew that he been convicted of a crime punishable by imprisonment for a
term 	exceeding 	one 	year when 	he 	possessed 	the 	Glock 	pistol.” 	(ECF 	No. 	18,
PageID.40; see also ECF No. 22, PageID.101 (Sealed).) Givhan resists this conclusion
by arguing that he “should not have received any firearm charge as he legally was in
his Second Amendment right to possess a firearm.” (ECF No. 32, PageID.245.) He
relies primarily on the Supreme Court’s rulings in United States v. Rahimi, 602 U.S.
680 (2024), and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
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But these cases are not the saviors Givhan believes them to be. As the Sixth
Circuit recently explained:
The 	Supreme 	Court 	in 	Rahimi 	did 	not 	declare 	§ 922(g)(1)
unconstitutional. Rahimi, 602 U.S. at 702. Instead, it held, in the
context of a § 922(g)(8) conviction, that “[a]n individual found by a court
to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. And
in Bruen, the Supreme Court acknowledged an individual’s right to
possess a handgun for self-defense outside his home but noted that “the
right secured by the Second Amendment is not unlimited.” Bruen, 597
U.S. at 10, 21 (quoting District of Columbia v. Heller, 554 U.S. 570, 626,
128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)). Neither case directly supports
[defendant’s] claim that his conviction is unconstitutional. Moreover, the
Supreme Court has not made either case retroactively applicable to
cases on collateral review.
In re Berry, No. 24-5911, 2025 U.S. App. LEXIS 15078, at *2–3 (6th Cir. June 17,
2025).
Additionally, 	post-Bruen, 	the 	Sixth 	Circuit 	has 	ruled 	that 	the 	felon-in-
possession statute, 18 U.S.C. § 922(g)(1), “is constitutional on its face and as applied
to dangerous people.” United States v. Williams, 113 F.4th 637, 662–63 (6th Cir.
2024). 	A 	defendant 	seeking 	to 	raise 	an as 	applied challenge 	must 	make 	“an
individualized showing that he himself is not actually dangerous.” Id. at 663. “A
person convicted of a crime is ‘dangerous,’ and can thus be disarmed, if he has
committed 	(1) 	a 	crime 	‘against 	the 	body 	of 	another 	human 	being,’
including . . . robbery, or (2) a crime that inherently poses a significant threat of
danger, 	including . . . burglary.” 	Id. 	Givhan’s 	lengthy 	criminal 	history 	includes
convictions for attempted breaking and entering, domestic violence, and felonious
assault. (ECF No. 22, PageID.103–113 (Sealed).) As such, Givhan qualifies as a
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“dangerous” individual to whom § 922(g)(1)’s prohibition on gun possession may
lawfully apply. See, e.g., United States v. Martin, No. 24-3750, 2025 U.S. App. LEXIS
17269, at *8 (6th Cir. July 11, 2025) (finding dangerousness evidenced by prior
domestic violence conviction); United States v. Gray, No. 24-20145, 2025 U.S. Dist.
LEXIS 14968, at *8 (E.D. Mich. Jan. 28, 2025) (finding dangerousness evidenced by
convictions for felony assault and attempted home invasion).
In sum, Givhan has not established his actual innocence. Thus, his Second
Amendment claims are procedurally defaulted.
For these reasons, Givhan’s motion to toll and motion to vacate (ECF Nos. 31,
32) are DENIED.
The Court further finds that reasonable jurists could not debate whether “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 quotation marks omitted). Givhan has not made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Thus, a certificate of appealability is DENIED. The Court will, however, grant
Givhan leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: October 20, 2025
s/Laurie J. Michelson
LAURIE J. MICHELSON
United States District Judge
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