Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, July 30, 2019

In re Palacios: Denying SOS Under Rehaif Because that Decision Does Not Satisfy Gatekeeping Criteria

In In re Palacios, No. 19-12571 (July 30, 2019) (Wilson, Rosenbaum, Newsom) (per curiam), the Court denied an application to file a successive 2255 motion based on Rehaif.

The Court explained that Rehaif did not satisfy the gatekeeping criteria in 2255(h)(2) because it interpreted a statute; it did not announce a new rule of constitutional law.  And the Supreme Court had not made Rehaif retroactive to cases on collateral review.  

Judge Rosenbaum concurred, reiterating her view that the en banc decision in McCarthan was wrongly decided, and it would wrongly preclude those in the successive posture from filing 2241 petitions based on Rehaif.