Criminal Practice – Habeas Corpus – AEDPA Savings Clause – Traditional Application – Rehaif

Movant was convicted of possession of a firearm by a felon and filed an unsuccessful habeas petition under 28 U.S.C. § 2255. Thereafter, Rehaif v. United States, 139 S. Ct. 2191 (2019), changed the law so that the government must now prove an additional element under 18 U.S.C. §§ 922(g)(1) and 924(a)(2): that a defendant knew he was in the class of persons prohibited from possessing a firearm. Since Rehaif was the result of statutory – rather than constitutional – interpretation, 28 U.S.C. § 2255(h) does not permit movant to file another habeas petition.

Nevertheless, where (1) at the time of movant’s conviction, settled law of this circuit established the legality of his conviction; (2) subsequent to movant’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which movant was convicted is deemed not to be criminal; and (3) movant cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law, movant may pursue a traditional habeas petition under 28 U.S.C. § 2241.

We deny movant’s motion for authorization to file a successive § 2255 application under § 2255(h)(2). However, movant may proceed to file a savings-clause application under § 2255(e).

It is true that, after Rehaif, possessing a firearm as a felon remains criminal under § 922(g). But the government did not charge movant with simply “possessing” a firearm in violation of § 922(g). It charged him with “knowingly” doing so under §§ 922(g) and 924(a). That movant’s conviction might have survived Rehaif if the government had charged him under § 922(g) alone is of no moment: the government chose not to do so.

Indeed, the reasoning of Rehaif itself provides that possession of the firearm cannot be disentangled from the scienter requirement for individuals charged under §§ 922(g) and 924(a)(2). In Rehaif, the Supreme Court noted that “the text of § 922(g) . . . lists the elements that make a defendant’s behavior criminal.” Thus, although the conduct of possessing a firearm remains a valid part of the criminal offense with which movant was charged, proving that conduct is not enough to secure a conviction under §§ 922(g)(1) and 924(a)(2) after Rehaif unless the government also proves that the defendant knew he was in the class of persons barred from doing so.

In re McNeill (Lawyers Weekly No. 001-062-23, 16 pp.) (James Wynn, J.) No. 20-159. Appealed from USDC at Raleigh, N.C. Nathaniel Wilson Reisinger, Catherine Carroll and Alex Tucker Stewart for movant; Rudy Renfer and Michael Easley for respondent. United States Court of Appeals for the Fourth Circuit