IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

UNITED STATES OF AMERICA, )

)

Respondent, )

)

vs. ) Case No. 20 C 50300

)

JARVIS WASHINGTON, )

)

Movant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In November 2013, a grand jury indicted Jarvis Washington on five counts 

alleging possession with intent to distribute controlled substances (counts one and two), 

possession of a firearm and ammunition as a felon (counts three and four), and 

possession of a firearm in furtherance of a drug-trafficking crime (count five). A jury 

convicted Washington on counts one, two, three, and four, and another judge of this 

Court sentenced him to an eleven-year prison term. In November 2016, the Seventh 

Circuit affirmed his convictions. Washington has filed a pro se motion under 28 U.S.C. 

§ 2255 to vacate, set aside, or correct his sentence. The Court denies his motion for 

the reasons stated below.

Background

The following facts established during Washington's jury trial are relevant to the 

claims in his motion under 28 U.S.C. § 2255. Washington was arrested in September 

2013. At the time of Washington's arrest, law enforcement found a firearm, ammunition, 
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and drugs in his possession. The grand jury returned an indictment that charged

Washington for possession of a firearm and ammunition as a felon (counts three and 

four), which are based on 18 U.S.C. § 922(g)(1), as well as three other counts that are 

not relevant for the purposes of Washington's section 2255 motion. The case 

proceeded to a three-day jury trial that took place in March and April 2015. 

Counts three and four of Washington's indictment and conviction are based on 

18 U.S.C. § 922(g)(1). The jury instructions at trial enumerated the elements the 

government needed to prove beyond a reasonable doubt: (1) the defendant knowingly 

possessed a firearm or ammunition as identified in the count at issue; (2) at the time of 

the charged act, Washington previously had been convicted of a crime that was 

punishable by a term of imprisonment of more than one year; and (3) the possession 

was in or affecting commerce. Section 922(g) prohibits certain categories of individuals, 

including convicted felons, from possessing a firearm. At the time of Washington's 

conviction, controlling Seventh Circuit authority only required the government to prove 

the defendant had knowledge with respect to possession of the firearm or ammunition, 

not regarding his status as a convicted felon. At trial, Washington and the government 

stipulated that on the day of his arrest, he had previously been convicted of a crime 

punishable by a term of imprisonment exceeding one year. In its response brief to 

Washington's section 2255 motion, the government noted that Washington had 

completed a twenty-eight-month sentence for the prior felony. 

During Washington's criminal trial, the government did not establish or attempt to 

establish that Washington had knowledge of his status as a convicted felon at the time 

of possession. Under existing Seventh Circuit precedent, the government was not 
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required to do so; its burden was limited to proving knowledge as to possession of the 

firearm and ammunition.

On June 21, 2019, the Supreme Court decided Rehaif v. United States, 139 S. 

Ct. 2191 (2019), which changed the governing legal standard for section 922(g) 

offenses. Specifically, the Court held that to obtain a conviction under section 922(g), 

the government must prove "that the defendant knew he possessed a firearm and also 

that he knew he had the relevant status when he possessed it." Id. at 2194 (emphasis 

added). As indicated, this was not the controlling interpretation of section 922(g) in the 

Seventh Circuit when Washington was indicted, tried, and convicted. 

The trial judge imposed a 132-month prison term in July 2015. Washington 

appealed his conviction, arguing that his convictions on counts three and four—for 

possessing a firearm and ammunition—should merge. In November 2016, the Seventh 

Circuit affirmed Washington's convictions on both counts. United States v. Washington, 

666 F. App'x 544 (7th Cir. 2016),

Washington, who is currently confined at Yazoo City Medium, a federal 

correctional institution, has moved under section 2255 to vacate, set aside, or correct 

his sentence. He contends that the government did not meet its required burden in 

proving every element to the offense, including his knowledge of his status as a felon. 

Washington also argues that the government could not have established his knowledge 

beyond a reasonable doubt, because he was under the influence of heroin, cocaine, 

and marijuana at the time of the offense. 

The government contends, among other things, that Washington's section 2255 

motion is untimely. Washington has stated under penalty of perjury that he put his 
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motion in the prison mailbox on June 20, 2020 and that his motion is timely because he 

placed it in the mail system less than a year after Rehaif was issued. On August 13, 

2020, the Clerk received Washington's section 2255 motion, which had been 

postmarked on August 7, 2020. In its response to Washington's motion, the 

government argues that the motion is untimely and that he failed to comply with the 

prison's procedures for sending legal mail. 

In his reply brief, Washington concedes that he did not submit the motion through the 

prison's legal mail system, but he contends that existing prison procedures, which had 

been disrupted by the COVID-19 pandemic, prevented him from doing so. He explains 

that he was only permitted to leave his room on three designated days per week, for a 

duration of thirty minutes, to shower. The officer who came around to collect outgoing 

mail from inmates did so once a week and on an inconsistent basis. Because the legal 

mail system was impacted by the prison's COVID-19-related procedural changes, 

Washington put his motion in the prison mailbox.

Discussion

Under 28 U.S.C. § 2255, a court may vacate, set aside, or correct a sentence 

imposed in violation of the laws of the United States. 

A. Timeliness

As indicated earlier, the government argues that Washington's motion is 

untimely. A motion under section 2255 must be filed within one year of the latest of four 

dates listed in subsection (f). The provision applicable here, section 2255(f)(3), states 

that the limitation period runs from "the date on which the right asserted was initially 

recognized by the Supreme Court, if that right has been newly recognized by the 
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Supreme Court and made retroactively applicable to cases on collateral review." 28 

U.S.C. § 2255(f)(3). Because Washington's motion is based on Rehaif, the limitations 

period began to run on June 21, 2019, the date of that decision.

The government concedes that Rehaif retroactively applies to Washington's 

case, but it contends that Washington's motion is untimely because it was not 

postmarked or received by the Clerk until August 2020. The government further argues 

that although the limitation period is subject to equitable tolling in limited circumstances, 

that "is an extraordinary remedy and so 'is rarely granted.'" Gov.'s Resp. Br. at 15 (dkt. 

no. 15) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)). Washington, the 

government contends, "has not even attempted to meet that burden." Gov.'s Resp. Br. 

at 15.

But the statute of limitations is an affirmative defense, so Washington was not 

required to negate it in his opening memorandum. In his reply brief, Washington 

contends that the limitations period should be equitably tolled because COVID-19-

related procedures and disruptions prevented him from submitting his motion through 

the legal mail system, despite his reasonable diligence. He contends that because 

inmates could only come out of their room three times a week—Monday, Wednesday, 

and Friday—for only thirty minutes and only to shower, he had a limited opportunity to 

mail his motion. Mov.'s Reply Br. at 4 (dkt. no. 17). Furthermore, he says, an officer 

came around to collect legal mail only once per week and not on any specific day during 

the week. Washington contends that he put the motion in the prison mailbox rather than 

the legal mail system because the typical procedure for legal mail was unavailable or 

otherwise disrupted because of COVID-19 restrictions. It also appears to be undisputed 
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that Washington deposited the motion into the mailbox within the one-year limitations 

period, though just barely.

"To qualify for equitable tolling, a [movant] must show: (1) that he has been 

pursuing his rights diligently; and (2) that some extraordinary circumstances stood in his 

way and prevented timely filing." Lombardo v. United States, 860 F.3d 547, 551 (7th 

Cir. 2017). Washington's argument that equitable tolling should apply in his case is 

persuasive. In similar cases, judges have concluded that an incarcerated section 2255

movant or a habeas corpus petitioner is entitled to equitable tolling if he can show that 

disruptions and delays due to COVID-19 prevented him from filing a timely motion. See 

Brown v. Davis, 482 F. Supp. 3d 1049, 1060 (E.D. Cal. 2020) ("petitioner has shown his 

entitlement to prospective tolling of the applicable statute of limitations on grounds of 

delay in appointment of federal habeas counsel and the impact of the COVID-19 

pandemic"); United States v. Henry, No. 2:20 C 1821, 2020 WL 7332657, at *4 (W.D. 

Pa. Dec. 14, 2020) (indicating that a movant must show a "nexus" between COVID-19 

and "failure to timely file his motion" for equitable tolling to be warranted). This Court 

has reached the same conclusion in a different context. See Day v. Niles Twp. High 

Sch. Dist. 219 Bd. of Educ., No. 20 C 5772, 2020 WL 7641273, at *2 (N.D. Ill. Dec. 23, 

2020) (Kennelly, J.) (plaintiff is entitled to equitable tolling because "he attempted to file 

suit by the apparent deadline and was turned away from the courthouse due to 

pandemic-related closures and was unable to file the complaint online through no fault 

of his own").

In short, the facts in this case support the application of equitable tolling. The 

COVID-19 restrictions in the prison adversely affected the mail system, which was 
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beyond Washington's control, and he was reasonably diligent in submitting his motion 

via the mail despite the obstacles he faced. See Lombardo, 860 F.3d at 552.

B. Procedural default

The government next argues that Washington procedurally defaulted his claims 

because he failed to raise his challenges to the indictment and jury instructions at trial or 

on direct appeal. "In general, habeas corpus petitioners may not raise any issue that 

they might have presented on direct appeal." Cross v. United States, 892 F.3d 288, 294 

(7th Cir. 2018). "A petitioner may, however, overcome procedural default by showing 

cause for the default and actual prejudice, or that failure to consider the defaulted claim 

will result in a fundamental miscarriage of justice." Id. at 294-95 (internal citations and 

quotation marks omitted). "Absent a showing of both cause and prejudice, procedural 

default will only be excused if the prisoner can demonstrate that he is actually innocent

of the crimes of which he was convicted." McCoy v. United States, 815 F.3d 292, 295 

(7th Cir. 2016) (internal quotation marks omitted). 

The government contends that Washington cannot overcome the default 

because he can neither show cause and actual prejudice nor actual innocence. 

Washington contends that his claim was foreclosed by circuit precedent and he could 

not have viably raised it at trial or on appeal. Mov.'s Reply Br. at 3. He points out that 

neither the trial court nor the Seventh Circuit would have been receptive to the 

"knowledge-of-status argument before Rehaif." Id. Accordingly, he contends that he 

has shown cause to excuse the procedural default.

Washington is right that his knowledge-of-status argument would have been 

thwarted by controlling law at the time of his trial and direct appeal. That said, the
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Seventh Circuit has not yet addressed whether the change in the law resulting from 

Rehaif is sufficient to establish cause in the context of a section 2255 motion. 

In United States v. Maez, 960 F.3d 949 (7th Cir. 2020), the Seventh Circuit held 

that the Supreme Court's intervening decision in Rehaif constituted good cause for the 

defendants' failure to challenge the sufficiency of their indictments and convictions by 

jury verdicts based on the knowledge-of-status argument. Id. at 953. Maez, however, 

involved a direct appeal applying the "good cause" standard under Federal Rule of 

Criminal Procedure 12(b)(3). The standard of cause to excuse procedural default in the 

context of a motion under section 2255 is higher. See United States v. Frady, 456 U.S. 

152, 166 (1982) ("[t]o obtain collateral relief a prisoner must clear a significantly higher 

hurdle than would exist on direct appeal."). 

Even if Washington could establish cause, based for example on his counsel's 

failure to assert the point or on the change in the governing legal standard, he cannot 

show prejudice, which is required in addition to cause to excuse a procedural default. 

Washington had completed a prison sentence of twenty-eight months for a prior felony 

conviction at the time he was charged under § 922(g)(1), which is strong evidence that 

he had knowledge of his status as a felon. See Allison v. United States, No. 19 C 349, 

2021 WL 872138, at *12 (S.D. Ill. Mar. 9, 2021) ("[movant] has provided no basis to 

conclude that a reasonable juror could have inferred that he was somehow unaware 

that he had been convicted of one or more felonies when he possessed the firearm"); 

see also Lacey v. United States, No. 19 C 994, 2020 WL 3129438, at *1-2 (S.D. Ill. June 

12, 2020) (finding it "implausible" that movant lacked knowledge of status because he 

had "been previously sentenced to prison for over a year on at least three separate 
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occasions"). 

In addition, Washington stipulated at trial that he had a prior conviction of a 

felony crime punishable by more than one year of imprisonment, which is further 

evidence of knowledge. Gov.'s Resp. Br. at 4 (dkt. no. 15) ("The stipulations that the 

parties entered at trial included a stipulation that, on September 24, 2013, the defendant 

previously had been convicted of a crime punishable by a term of imprisonment 

exceeding one year."). For these reasons, the Court concludes that Washington cannot 

establish that he was prejudiced by the trial court's failure to instruct the jury that he had

knowledge of his status as a convicted felon. It is readily apparent that this element 

would have been established, and easily. See United States v. Williams, 946 F.3d 968, 

973-74 (7th Cir. 2020) ("someone in [movant]'s position cannot plausibly argue that he 

did not know his conviction had a maximum punishment exceeding a year" because he 

"served a term of imprisonment longer than a year"); see Floyd v. United States, No. 19 

C 6578, 2020 WL 374695, at *3 (N.D. Ill. Jan. 23, 2020) ("It is inconceivable that [the 

movant], at the time he possessed the firearm, was unaware of th[e] felony conviction 

and sentence."); see also United States v. Burgos, No. 19 C 7305, 2020 WL 2098049, 

at *3 (N.D. Ill. May 1, 2020) (defendant's guilty plea and acknowledgment in his plea 

declaration that he had previously been convicted of a crime punishable by a term of 

imprisonment exceeding one year "precludes his claim that he did not know that he 

belonged to the category of persons barred from possessing a firearm"); United States 

v. Harrison, No. 19 C 4516, 2020 WL 6132224, at *2 (N.D. Ill. Oct. 19, 2020) ("[i]t is 

highly implausible that [the movant] was himself ignorant of his status as a felon" 

because he "had already been convicted of two felonies" and "served more than one 
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year for at least one conviction"). 

Washington says that he lacked knowledge of his status at the time he 

committed the offenses because he was under the influence of heroin, cocaine, and 

marijuana. But Washington's argument is foreclosed by controlling law: voluntary 

intoxication does not negate knowledge. See Pattern Criminal Jury Instructions of the 

Seventh Circuit 6.09(A) cmt. (2020) ("Voluntary intoxication is not generally a defense to 

a general intent crime, that is, one that is done 'knowingly.'"); see also United States v. 

Reed, 991 F.3d 399, 401 (7th Cir. 1993) (rejecting intoxication defense for firearm 

offense—a general intent crime—and suggesting that such an argument could prevail 

only "if the defendant were comatose and the evidence indicated someone dropped the 

gun in his lap"). In any event, "[a]n intoxication defense requires evidence 

demonstrating that the defendant's mental faculties were so overcome by intoxicants 

that he was rendered incapacitated." Faucett v. United States, 872 F.3d 506, 511 (7th 

Cir. 2017). Washington has offered no evidence to suggest that this was the case. 

(The Court also notes that if this were actually a viable argument, one would have 

expected it to be presented, successfully, with regard to the requirement of knowing 

possession of a firearm and ammunition.) 

Finally, even if Washington had contested to the issue of knowledge at trial, no 

reasonable juror could have found that Washington lacked knowledge of his felony 

status. To prevail, Washington "would have [had] to convince a jury that he either had 

no knowledge of where he spent [twenty-eight months] of his life, or that he honestly 

believed Illinois had imprisoned him [for about sixteen months] . . . more than the 

maximum punishment for" the offense. See Williams, 946 F.3d 973-74. "The chance of 
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a Rehaif-based argument succeeding on [these facts] is nil." See id.

Washington's remaining avenue for overcoming the procedural default is to show 

actual innocence, but he does not contend that he is innocent of the offenses under 

section 922(g)(1). In any event, actual innocence can be established only if the movant 

can "show that it is more likely than not that no reasonable juror would have found him 

guilty beyond a reasonable doubt." Perrone v. United States, 889 F.3d 898, 908 (7th 

Cir. 2018). Washington cannot meet that burden on the record before the Court. 

In sum, there is no basis upon which Washington can overcome the procedural 

default of his Rehaif argument. Washington is not entitled to relief under section 2255.

Conclusion

For the foregoing reasons, the Court directs the Clerk to enter judgment denying 

Washington's section 2255 motion. The Court declines to issue a certificate of 

appealability under 28 U.S.C. § 2253(c)(2) because there is nothing in the record to 

suggest that the Court's denial of Washington's motion on procedural grounds is 

debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000) ("Where a plain procedural bar 

is present and the district court is correct to invoke it to dispose of the case, a 

reasonable jurist could not conclude either that the district court erred in dismissing the 

petition or that the petitioner should be allowed to proceed further."). 

________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: June 2, 2021