Fourth Circuit Holds Rehaif is Retroactively Available for Habeas Cases

Tossing the government’s two major defenses against Rehaif claims in postconviction proceedings, the Fourth Circuit held that not only does Rehaif also apply to felon-in-possession of firearm cases under § 922(g)(1), but that it also applies retroactively on collateral review.  See United States v. Waters, 2023 U.S. App. LEXIS 7558, — F.4th — (Mar. 30, 2023)

The case was an initial motion under 28 U.S.C. § 2255 raising a claim that the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), invalidated a conviction under 18 U.S.C. § 922(g)(1), the commonly charged felon-in-possession-of-a-firearm statute we all know. Rehaif held that “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” The movant argued that the government never proved that he knew he was a felon.

The government opposed the § 2255 motion and somehow convinced Judge Bruce Hendricks of the Southern District of South Carolina that (1) Rehaif didn’t apply to § 922(g)(1) but only the statute banning illegal immigrants from possessing firearms under § 922(g)(5); and (2) that the Supreme Court didn’t make Rehaif retroactive, so it didn’t apply retroactively in a § 2255 (habeas) case.

The Fourth Circuit made short work of both those erroneous points. First, the Court held that Rehaif indeed applies to all firearms-possession cases. The Court quoted the Supreme Court, in Greer v. United States, 141 S. Ct. 2090 (2021), which held that Rehaif “clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense.” It emphasized the last part of that statement by the High Court to conclude that Rehaif surely applies to § 922(g)(1).

Second, the Court held that Rehaif applies retroactively to cases on collateral review, such as § 2255 motions (and presumably savings clause cases). It found that Rehaif interpreted a criminal statute and narrowed the reach of that statute. The Supreme Court has held for decades that when a Supreme Court decision narrows the scope of a criminal statute, the decision is “substantive” (as opposed to procedural) and must apply retroactively on collateral review. Rehaif fit that description perfectly, the Court said. (Note: The Eleventh, Fifth, and Sixth Circuits have all held the same.)

Finding that the movant in this case met the procedural hurdles to raise a retroactive Supreme Court decision on collateral review, the Court then explained that he must show in the district court a valid reason for not raising the claim earlier on direct appeal. Even though Rehaif didn’t exist at the time he could have raised it on appeal, the Supreme Court held in Greer that the burden is still on the movant to show that his default should be excused.

One way to do this, the Court said, would be for the movant to prove actual innocence of his offense in light of Rehaif. “If Waters procedurally defaulted his claim, he must establish either “cause and actual prejudice,” United States v. Frady, 456 U.S. 152, 167 (1982), or “actual innocence,” Bousley v. United States, 523 U.S. 614, 623 (1998), to excuse his procedural default.”

One point that’s important with Rehaif claims: Even though the Supreme Court’s decision applies retroactively in § 2255 cases, it does not open the door for a second or successive § 2255 motion. That’s because § 2255(h) only allows retroactive constitutional decisions by the Supreme Court, and Rehaif wasn’t a constitutional decision. If the one-year clock has expired to file a § 2255 motion (and Rehaif was decided in 2019, so it likely has for most people who were sentenced more than a year ago), then the only avenue available is the savings clause under § 2255(e). We are closely following the Jones v. Hendrix case pending in the Supreme Court, dealing with whether the savings clause should be available nationwide, instead of only a handful of circuits like it is right now.

As always, if you have any questions or need some help, give us a call.

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