Eleventh Circuit Court of Appeals - Published Opinions

Thursday, November 07, 2019

In re Wright: Denying Successive Application Based on Rehaif

In In re Wright, No. 19-13994 (Nov. 7, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Rehaif.

The applicant sought to make two claims.  First, he claimed that he was actually innocent of his 922(g)(1) offense in light of Rehaif because he did not know he was a felon.  However, relying on its earlier decision in In re Palacios, the Court ruled that this claim did not satisfy the gatekeeping criteria in 2255(h)(2) because Rehaif was a statutory (not constitutional) decision, and the Supreme Court had not made it retroactive to cases on collateral review.

Second, the applicant claimed that he received ineffective assistance of counsel when his counsel advised him to plead guilty.  He had previously been convicted of a felon-in-possession offense in state court, and he claimed that his subsequent federal conviction violated his double jeopardy rights.  The Court denied him leave to pursue that claim in a 2255 motion because he did not identify any newly discovered evidence, and the Supreme Court had not issued any new rule of constitutional law to support his claim.

Judge Rosenbaum concurred.  She agreed that the Rehaif claim could not be brought in a successive 2255 motion, but she suggested that he may be able to do so in a 2241 petition.  She explained that Rehaif applied retroactively.  And although Eleventh Circuit law would preclude him from filing a 2241 petition, that law did not govern his case because he was incarcerated in the Fourth Circuit.  Accordingly, she suggested that he attempt to file a 2241 in that Circuit.