Case: 20-30436 Document: 00516387742 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 8, 2022
No. 20-30436
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Daryon D. Kelley,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:20-CV-627
Before King, Elrod, and Southwick, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Until 2019, federal courts consistently held that knowledge of felony
status was not an essential element of the crime of possessing a firearm as a
felon. The defendant was convicted when that interpretation of the
applicable statute was ubiquitous. But shortly after the conviction, the
Supreme Court said that interpretation is wrong. The issue before us is
whether that decision recognized a new right that applies retroactively to
initial collateral actions under 28 U.S.C. § 2255. It did. The district court
erred by concluding otherwise, so we VACATE and REMAND for further
proceedings consistent with this opinion.
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No. 20-30436
Defendant Daryon Kelley was tried and convicted for possessing a
firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The jury instructions
did not specify that the jury must find that Kelley knew he was a felon when
he possessed a firearm. After Kelley’s conviction and sentencing, the
Supreme Court decided in Rehaif v. United States, 139 S. Ct. 2191, 2194
(2019), that knowledge of felony status is an essential element of that offense.
The following year, Kelley filed a motion with the district court under 28
U.S.C. § 2255, arguing that because of Rehaif the court should vacate, set
aside, or correct his sentence. The district court denied the motion,
concluding that Rehaif did not establish a new right that applies retroactively
as required for such collateral actions. Kelley sought a certificate of
appealability from this court, which was granted.
The Government and Kelley both agree that Rehaif supplied a new
rule of law that applies retroactively to initial § 2255 petitions, and thus the
district court erred. This court has not yet addressed the issue, but we agree
as well.
Under § 2255, a prisoner who claims that his sentence violates federal
law “may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). If the prisoner claims that his
sentence violates a right that did not exist at the time of conviction, he has
one year to file an initial § 2255 petition from the date the new right was
recognized by the Supreme Court and made retroactive to cases on collateral
review. Id. § 2255(f)(3).
We therefore must consider whether in Rehaif the Supreme Court
newly recognized a right and whether that right has been made retroactive to
cases on collateral review. We first conclude that the Supreme Court did
indeed recognize a new right—the defendant’s right to have the Government
prove beyond a reasonable doubt that the defendant knew of his felony status
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when he possessed a firearm. Before Rehaif, every circuit court of appeals to
address the issue, including this court, had held that § 922(g)’s knowledge
requirement did not apply to the fact of the defendant’s status as a felon. 1
But the Supreme Court explicitly held otherwise in Rehaif. 139 S. Ct. at 2194.
Next, that rule applies retroactively. The Supreme Court has
explained that “[n]ew substantive rules generally apply retroactively” to
finalized convictions. Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
(emphasis omitted). “This includes decisions that narrow the scope of a
criminal statute by interpreting its terms . . . .” Id. “Such rules apply
retroactively because they ‘necessarily carry a significant risk that a
defendant stands convicted of an act that the law does not make criminal’ or
faces a punishment that the law cannot impose upon him.” Id. at 352
(quoting Bousley v. United States, 523 U.S. 614, 620 (1998)). We thus have
said in another context that “new [Supreme Court] decisions interpreting
federal statutes that substantively define criminal offenses automatically
apply retroactively.” Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010). The
Rehaif decision did just that. It recognized for the first time an essential mens
rea element of a crime in a federal statute.
The Second, Third, Sixth, and Eleventh Circuits have held that Rehaif
cannot serve as a basis for a second or successive motion brought under 28
U.S.C. § 2255. See Mata v. United States, 969 F.3d 91, 93 (2d Cir. 2020); In
1
See United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991); United States v. Boyd,
999 F.3d 171, 178 (3d Cir. 2021) (citing United States v. Huet, 665 F.3d 588, 596 (3d Cir.
2012)); United States v. Langley, 62 F.3d 602, 604–08 (4th Cir. 1995) (en banc); United
States v. Rose, 587 F.3d 695, 705–06 & n.9 (5th Cir. 2009); United States v. Dancy, 861 F.2d
77, 80–82 (5th Cir. 1988); United States v. Lane, 267 F.3d 715, 720 (7th Cir. 2001); United
States v. Thomas, 615 F.3d 895, 899 (8th Cir. 2010); United States v. Kind, 194 F.3d 900,
907 (8th Cir. 1999); United States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997); United States
v. Games-Perez, 667 F.3d 1136, 1140–41 (10th Cir. 2012); United States v. Capps, 77 F.3d
350, 352–54 (10th Cir. 1996); United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997).
3
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re Sampson, 954 F.3d 159, 161 (3d Cir. 2020); Khamisi-El v. United States, 800
F. App’x 344, 349 (6th Cir. 2020); In re Palacios, 931 F.3d 1314, 1315 (11th
Cir. 2019). But crucially, the provision governing successive petitions uses
different language than the provision governing initial petitions. The
provision governing successive petitions specifically requires “a new rule of
constitutional law” that has been made retroactive. 28 U.S.C. § 2255(h)(2)
(emphasis added). By contrast, the provision governing initial petitions
requires only a “right [that] has been newly recognized by the Supreme
Court” and made retroactive. 28 U.S.C. § 2255(f)(3) (emphasis added). As
those circuits noted, Rehaif concerned a statutory rule, not a constitutional
rule. Mata, 969 F.3d at 93 (“The Supreme Court’s Rehaif decision resolved
only a question of statutory interpretation and did not announce a rule of
constitutional law (much less a new one, or one that the Supreme Court has
made retroactive on collateral review or that was previously unavailable).”);
Palacios, 931 F.3d at 1315; Sampson, 954 F.3d at 161 (“First and
foremost, Rehaif did not state a rule of constitutional law at all. Rather, it
addressed what the statutes enacted by Congress require for a conviction
under 18 U.S.C. §§ 922(g) and 924(a)(2).”); Khamisi-El, 800 F. App’x at
349 (“The rule stated in Rehaif is a matter of statutory interpretation, not a
new rule of constitutional law.” (internal quotation omitted)). 2
Indeed, the Eleventh Circuit did eventually address Rehaif’s
retroactive application to initial § 2255 motions, and it reached the same
conclusion as we do today. Seabrooks v. United States, 32 F.4th 1375, 1383
(11th Cir. 2022). And in doing so, it explicitly distinguished its previous
decision in Palacios about successive petitions. Id. at 1382 (“Although we
have previously analyzed Rehaif in the context of an application for leave to
2
We note, then, that our holding today does not apply to successive § 2255
petitions, for which the analysis would differ.
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file a second or successive § 2255 motion pursuant to §§ 2255(h) and
2244(b)(3)(A), we have yet to analyze a Rehaif claim brought in an initial
motion to vacate.” (footnote omitted)).
Thus, the decisions of other circuits holding that the Rehaif rule does
not serve as a basis for a second or successive motion under 28 U.S.C. § 2255
are not relevant to the issue whether the rule applies to initial § 2255
petitions. For this issue, the Supreme Court in Rehaif recognized a new right
that applies retroactively to cases on collateral review. The district court
therefore erred by concluding otherwise and denying Kelley’s § 2255 petition
on that ground.
Even though both parties agree on that point, the Government asks us
to affirm the district court’s judgment on other grounds—namely, that
Kelley’s claim is procedurally defaulted and is without merit. We decline the
Government’s invitation. But we do not take a position on those issues. The
district court has not addressed procedural default or the merits of Kelley’s
claim. It should have an opportunity to do so before we weigh in. See Bousley
v. United States, 523 U.S. 614, 623–24 (1998); United States v. Jones, 172 F.3d
381, 384–85 (5th Cir. 1999) (vacating and remanding for the district court to
address a claim of actual innocence when the district court had previously
denied a § 2255 motion without doing so).
We therefore VACATE the judgment of the district court that
denied Kelley’s § 2255 motion, and we REMAND for further proceedings
consistent with this opinion.
5