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In re Wright

United States Court of Appeals, Eleventh Circuit

November 7, 2019

IN RE: JOSEPH DEMOND WRIGHT, Petitioner.

          Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

          Before: ED CARNES, Chief Judge, TJOFLAT and ROSENBAUM, Circuit Judges.

         BY THE PANEL:

         Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Joseph Demond Wright has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2)a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C); see also Jordan v. Secy, Dep't of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court's determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

         In In re Palacios, we determined that the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), did not announce a new rule of constitutional law but rather clarified the requirements for prosecuting an individual under 18 U.S.C. §§ 922(g) and 924(a)(2). 931 F.3d 1314, 1315 (11th Cir. 2019) (denying an application for leave to file a successive § 2255 motion that was premised on Rehaif). Further, we determined that, even if Rehaif had announced a new rule of constitutional law, the Supreme Court has not made that decision retroactive to cases on collateral review. Id.

         In his application, Wright indicates that he wishes to raise two claims in a subsequent §2255 motion. First, he asserts that he is actually innocent of his 18 U.S.C. § 922(g)(1) conviction under Rehaif v. United States because he did not know that he belonged to a category of individuals barred from possessing firearms. Second, he asserts that he received ineffective assistance of counsel because his counsel advised him to plead guilty even though his federal charges violated the Double Jeopardy Clause. Wright asserts that he was convicted in 2002 in a Georgia state court on charges related to possession of a firearm that involved the same elements as his federal charges, which he pled guilty to in 2004. He cites to Ohio v. Johnson, 467 U.S. 493 (1984); Williams v. Singletary, 78 F.3d 1510 (11th Cir. 1996); Blockburger v. United States, 284 U.S. 299 (1932); and Tarpley v. Dugger, 841 F.2d 359 (11th Cir. 1988). In addition, Wright asserts that he is eligible for the appointment of counsel to assist him in filing his Rehaif and Double Jeopardy claims.

         We deny Wright's application. First, Rehaif v. United States did not announce a new rule of constitutional law but rather clarified the requirements of 18 U.S.C. §§ 922(g) and 924(a)(2). In re Palacios, 931 F.3d at 1315. Further, the Supreme Court did not make ite/i<w/retroactive to cases on collateral review. Id. In addition, Wright does not identify any newly discovered evidence related to his Rehaif claim. See 28 U.S.C. § 2255(h)(1). Second, Wright does not identify any newly discovered evidence to support his Double Jeopardy claim. See id. In addition, the cases that he cites do not support his claim because they were either decided by the Supreme Court before he filed his original § 2255 motion, and so are not "new," or were decided by courts other than the Supreme Court. See id. § 2255(h)(2). As neither of the claims that Wright wishes to raise are viable, his request for appointed counsel is moot.

         Accordingly, because Wright has failed to make a. prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby DENIED.

          ROSENBAUM, Circuit Judge, Concurring

         Joseph Wright wishes to raise a claim under Rehaif v. United States, 139 S.Ct. 2191 (2019), seeking to vacate his conviction under 18 U.S.C. §§ 922(g) and 924(a)(2), based on the assertion that the government failed to allege and prove he had knowledge he possessed a firearm and was a felon. I concur in the panel's ultimate denial of authorization to bring a second or successive claim under § 2255(h), though I do not believe Wright is foreclosed altogether from seeking to bring his Rehaif claim. True, Wright's claim is not cognizable under 28 U.S.C. § 2255(h), since it involves only a new rule of statutory law, not constitutional law. And in this Circuit, Wright's claim is not cognizable under 28 U.S.C. § 2255(e), either, because in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1093 (11th Cir. 2017) (en banc), by which we are bound, we held that a prisoner may file a second or successive claim for habeas relief, challenging his conviction through that subsection only when the sentencing court is unavailable.[1] But Wright is not imprisoned in this Circuit, so McCarthan, which I continue to believe we wrongly decided, see McCarthan, 851 F.3d at 1121-58 (Rosenbaum, J., dissenting), does not bind the court where he is imprisoned.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;I therefore write separately for three reasons. First, contrary to what we held in In re Palacios,931 F.3d 1314 (11th Cir. 2019), and as I explained in my concurring opinion in that case, the rule announced in Rehaifv. United States,139 S.Ct. 2191 (2019), is retroactively applicable to cases on collateral review because Bousley v. United States,523 U.S. 614 (1988), in combination with Bailey v. United States,516 U.S. 137 (1995), necessarily "logically dictate[s] the retroactivity of the new rule." In re Henry,757 F.3d 1151, 1160 (11th Cir. 2014). Second, because Rehaifs rule is a retroactively applicable new rule of statutory law, not of constitutional law, 28 U.S.C. &sect; 2255(e), not &sect; 2255(h), should govern Wright&#39;s claim, but it cannot in this Circuit since we are bound by the incorrectly decided McCarthan case. And third, Wright is imprisoned in South Carolina, in the Fourth Circuit, so McCarthan does not bind that court in its ...


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