US v. Pollard, Jr., No. 20-15958 (8-27-21)(Nelson w/Jack; concurrence by Forrest). To my reading, this is a dangerous habeas opinion regarding “futility.”

This is a Rehaif issue. The petitioner pled to being a felon-in-possession in 2017. In Rehaif v. US, 139 S. Ct. 2191 (2019), the Court required the gov’t to prove a defendant knew he was a felon at the time of the firearm possession. After Rehaif, petitioner filed a 2255.

The majority holds the petitioner did not fulfill the cause prong for procedural default for habeas relief (p.5). He SHOULD have raised the claim because the challenge had been circulating for years, even if it was routinely and expectedly denied by all circuits. The majority distinguishes between a “novel” claim and a “futile” claim. The majority announces the Court does not recognize futility. The petitioner here fails the “cause” prong for procedural default. He also fails prejudice. The latter is meaningless with the first prong being denied.

The concurrence agrees there is no prejudice. The concurrence states the panel need not decide cause because of the failure of prejudice. Also, the concurrence “disagree[s] that Supreme Court precedent dictates the majority’s broad futility-can-never-be-cause rule.” (p. 14). A difference between a claim is futile because a particular court rejects it and one where every circuit for a sustained period has rejected the claim. See Reed v. Ross, 468 US 1, 17 (1984).

To my reading, this decision has far reaching consequences for trial practice and for habeas. Read it and be concerned.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/27/20-15958.pdf