Ultsch v. United States

Background

Timothy James Ultsch proceeded without a lawyer and filed a petition under 28 U.S.C. § 2241, a procedure allowing a federal prisoner to challenge unlawful custody. He sought relief from his conviction for possessing a firearm after a felony conviction under 18 U.S.C. § 922(g)(1), relying on the Supreme Court’s decision in Rehaif v. United States.

Ultsch had pleaded guilty in 2012. The court sentenced him to 180 months in prison under the Armed Career Criminal Act. He had previously filed a challenge under 28 U.S.C. § 2255 based on a different Supreme Court decision, but that challenge was denied. The parties agreed that he could not file another § 2255 petition based on Rehaif because Rehaif did not announce a new constitutional rule. The petition was therefore treated as a § 2241 petition and transferred to the Southern District of New York because Ultsch was incarcerated there.

Rehaif and the jurisdictional requirement

Rehaif held that, for a prosecution under the firearm-possession statute, the government must prove that the defendant knew he possessed a firearm and knew that he belonged to the relevant category of people prohibited from possessing firearms. For a person charged as a felon under § 922(g)(1), the required knowledge is that the person had been convicted of a crime punishable by more than one year in prison. The person does not need to know that federal law made firearm possession illegal.

A federal prisoner ordinarily must use § 2255 to attack the conviction or sentence. Section 2241 may be available under § 2255’s savings clause if § 2255 is inadequate or ineffective, but the prisoner must first show actual innocence under a legal theory that was previously unavailable. Actual innocence means factual innocence, not merely that the conviction was legally deficient. The court must determine whether, considering the record, it is more likely than not that no reasonable juror would have convicted the prisoner.

Ultsch’s argument and the court’s analysis

Ultsch argued that he did not believe he was a felon when he possessed the firearm because he had received a new identity through the federal witness protection program. He said his witness-protection handler and probation officer had told him things that led him to believe he was no longer a felon.

The court rejected the argument. First, it relied on evidence that Ultsch told federal investigators that he knew he should not have possessed the firearm. Second, during his guilty-plea hearing, he confirmed that he had reviewed and agreed with facts stating that he had been convicted of bank robbery and that bank robbery was punishable by more than one year in prison. He also confirmed that he had previously been convicted of a felony in Arizona. Third, the record showed that he had received an 84-month sentence for his earlier bank-robbery convictions and had served more than one year in prison.

The court explained that the relevant question was not whether Ultsch believed he was still a felon. The question was whether he knew that he had previously been convicted of a crime punishable by more than one year in prison. On the existing record, the court found that he could not show that he lacked that knowledge or that no reasonable juror could have convicted him. The court therefore concluded that he could not use the savings clause and that it lacked jurisdiction over the § 2241 petition.

Disposition

The court’s analysis stated that the petition must be dismissed for lack of jurisdiction, while the formal conclusion stated that the petition for a writ of habeas corpus was DENIED. The court instructed the clerk to enter judgment and close the case. It also granted Ultsch’s request to proceed without paying the filing fee in the district court, but certified that any appeal would not be taken in good faith and denied that status for purposes of an appeal. A certificate of appealability was not required for an appeal from a § 2241 decision.