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In re Palacios

United States Court of Appeals, Eleventh Circuit

July 30, 2019

IN RE: FELIX M. PALACIOS, 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: WILSON, ROSENBAUM and NEWSOM, Circuit Judges.

         BY THE PANEL:

         Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Felix M. Palacios 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. Sec'y, 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 his application, Palacios raises one claim. He relies on a "new rule of constitutional law," as announced in Rehaif v. United States, 588 U.S. __, 139 S.Ct. 2191 (2019), to challenge his conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). He argues that his conviction and sentence under § 922(g) should be vacated because the government did not prove-as he argues Rehaif requires-that he knew he possessed a firearm or that he knew he was a felon when he possessed the firearm. Additionally, Palacios asks this Court to hold his application in abeyance until the Supreme Court makes its holding in Rehaif retroactively applicable to cases on collateral review.

         Here, Palacios's claim fails to meet the statutory criteria, and this Court should deny it. See 28 U.S.C. § 2255(h)(2). His claim relies solely on Rehaif, which did not announce a "new rule of constitutional law," but, instead, clarified that, in prosecuting an individual under 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2)-which provides that anyone who "knowingly violates" § 922(g) can be imprisoned for up to 10 years-the government must prove that the defendant knew he violated each of the material elements of § 922(g). Rehaif, 139 S.Ct. at 2195-96 (emphasis added). Moreover, even if Rehaif had announced a new rule of constitutional law, as Palacios concedes in his application, it was not made retroactive to cases on collateral review by the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 661-66 (2001).

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

          ROSENBAUM, Circuit Judge, concurring:

         Palacios 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 order because I must: Palacios'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, Palacios's claim is not cognizable under 28 U.S.C. § 2255(e), either, because under 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]

         I write separately, though, because I continue to believe that McCarthan is incorrect as a matter of law, and new rules of statutory law that are retroactively applicable must be cognizable under 28 U.S.C. § 2255(e), § 2255's constitutional-failsafe provision. As I have previously explained, see McCarthan, 851 F.3d at 1121-58 (Rosenbaum, J., dissenting), § 2255(e), known as the saving clause, serves as a failsafe mechanism to protect § 2255 from unconstitutionality by providing a substitute remedy for habeas corpus relief that § 2255 otherwise precludes but the Suspension Clause may require. Retroactively applicable new rules of statutory law, such as the one articulated in Rehaif, present claims that fall into that category.

         To understand why, we need look no further than Bailey v. United States, 516 U.S. 137 (1995), and Bousley v. United States, 523 U.S. 614 (1998). In Bailey, the Supreme Court construed 18 U.S.C. § 924(c)(1), which, at the time, imposed a prison term upon a person who "during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm," to require evidence that the defendant actively employed the firearm during and in relation to the predicate crime. Bailey, 516 U.S. at 142-43. Previously, some courts had ...


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