Application for Leave to File a Second or Successive Motion
to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. §
Before: ED CARNES, Chief Judge, TJOFLAT and ROSENBAUM,
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;
(2)a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
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 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.
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.
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.
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
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. 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.
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. § 2255(e), not §
2255(h), should govern Wright'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 ...