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.
