by Sam Rutherford

The U.S. Court of Appeals for the Third Circuit held that a federal prisoner’s second-in-time habeas corpus petition under 28 U.S.C. § 2255 was not a successive petition because the prisoner was resentenced as a result of his first § 2255 petition. The Court also held that the decision in Rehaif v. United States, 588 U.S. 225 (2019), announced a new substantive rule and therefore applies retroactively to cases on collateral review.

Background

In 2012, Carlos Hill was charged with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), which makes it unlawful for any person to knowingly possess a firearm who, among other things, has been previously convicted of a crime in any court, state or federal, punishable by more than one year of incarceration. Hill had such a conviction on his record.

Hill’s case proceeded to jury trial in 2013, at which the U.S. District Court for the Middle District of Pennsylvania instructed the jury that it must find each of the following elements beyond a reasonable doubt in order to convict him: (1) that Hill had been convicted of a crime punishable by more than one year, (2) that Hill knowingly possessed a firearm after this conviction, and (3) that Hill’s possession was in or affecting interstate or foreign commerce.

Hill stipulated that he was previously convicted of a felony but did not stipulate that he knew the conviction was punishable by more than one year imprisonment. The Government did not present any evidence concerning whether Hill knew his prior conviction carried a maximum punishment of more than one year, and the jury was not instructed to consider this question.

At the time of Hill’s trial, nearly all the U.S. Courts of Appeals, including the Third Circuit, had held that § 922(g) does not require proof that the defendant knew he or she had previously been convicted of a crime punishable by more than one year. (See opinion for citations.)

Hill was convicted and, in 2014, received an enhanced sentenced under the Armed Career Criminal Act (“ACCA”) of 235 months in prison followed by five years of supervised release. Hill timely appealed his conviction and sentence but lost in 2016.

In 2018, Hill filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 challenging his enhanced sentenced under the ACCA. The District Court granted partial relief, concluding that one of Hill’s prior convictions no longer qualified him for an enhanced sentence under the ACCA. The District Court therefore resentenced Hill without the enhancement and issued an amended judgment.

Then, in 2019, the U.S. Supreme Court decided Rehaif, holding that under 18 U.S.C. §§ 922(g) and 924(a)(2) 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 Rehaif Court imposed this knowledge requirement, or “scienter” as it is often called, to the statute because it advances basic principles of criminal law by “helping to separate those who understand the wrongful nature of their act from those who do not.” Rehaif. The scienter requirement promotes this goal by preventing a person from being convicted of felony firearm possession when he or she “was convicted of a prior crime but sentenced only to probation, who does not know that the crime is punishable by imprisonment for a term exceeding one year.”

A few months after the Supreme Court’s decision in Rehaif, Hill filed a motion for appointment of counsel in the District Court requesting assistance to submit another § 2255 petition on the ground that his conviction must be set aside because the Government did not prove—and the jury was not instructed to determine whether—Hill knew he had been convicted of a crime punishable by more than one year when he possessed the firearm. The District Court determined that because this was Hill’s second § 2255 motion, it must be based on “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). Relying on an Eleventh Circuit case, the District Court denied Hill’s request because the decision in Rehaif failed to satisfy this standard. See In re Palacios, 931 F.3d 1314 (11th Cir. 2019). Hill timely appealed.

Analysis

The Court began its analysis by determining whether Hill needed a certificate of appealability (“COA”) in order to pursue his appeal. An appeal from the final order in a § 2255 proceeding may be taken only if a circuit judge or judge issues a COA. See 28 U.S.C. § 2253(c)(1)(B). An order is considered final if it disposes of the habeas proceeding on the merits, rather than simply resolving a collateral issue. “It makes no difference if the final disposition is based on the substantive merits or the procedural merits, so long as it concludes the habeas proceedings,” the Court stated. Citing Bracey v. Superintendent Rockview SCI, 986 F.3d 274 (3d Cir. 2021).

Hill argued that he did not need a COA because he was appealing the denial of his motion for appointment of counsel, which is not a final order. The Government, on the other hand, argued that the District Court’s denial of Hill’s motion for appointment of counsel was essentially a final order because it brought the case to conclusion. The Court ruled that because the District Court “skipped over Hill’s request for counsel” and definitively determined that his habeas petition was successive and therefore procedurally barred, its order was final, and a COA was required.

The Court next considered whether Hill was entitled to a COA. When a District Court denies a § 2255 petition on procedural grounds such as in Hill’s case, a COA will issue if jurists of reason would find it debatable whether: (1) the petition states a valid claim for the denial of a constitutional right, and (2) the District Court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473 (2000); United States v. Doe, 810 F.3d 132 (3d Cir. 2015). Hill’s appeal met both of these requirements.

First, a § 2255 petition states a valid constitutional claim warranting a COA even if it “is only arguably (to be clear, plausibly or subject to good faith debate) a decision of constitutional dimension.” Doe. Hill’s Rehaif claim easily satisfied this standard because it violates due process to not instruct a jury on all elements the Government must prove beyond a reasonable doubt, including scienter, the Court determined. See, e.g., Sandstrom v. Montana, 442 U.S. 510 (1979); Bennett v. Superintendent Graterford SCI, 886 F.3d 268 (3d Cir. 2018). The Court stated that there was no question that Hill’s jury was not instructed that it must find that he knew he was previously convicted of an offense that carried a maximum punishment of more than one year when he possessed the firearm leading to his conviction under § 922(g). “Jurists of reason would therefore find it at least debatable that Hill has a valid claim for the denial of a constitutional right, so Hill satisfies the first prong of the Slack test.”

Second, the Court determined that the District Court incorrectly determined that Hill’s § 2255 petition was successive. In both Magwood v. Patterson, 561 U.S. 320 (2010), and Lesko v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211 (3d Cir. 2022), the courts held that second-in-time habeas petitions under 28 U.S.C. § 2254 attacking state court judgments entered after resentencing hearings predating the second habeas petition were not successive because they challenged new judgments. The Court determined that these cases also apply to habeas petitions filed pursuant to § 2255. Because Hill’s first § 2255 petition resulted in the District Court resentencing him and issuing a new judgment, his second § 2255 petition filed after the new judgment was not impermissibly successive. Thus, the Court determined that the “District Court’s ruling that Hill’s motion was a second or successive motion was therefore incorrect, and the second prong of the Slack test is satisfied.”

Finally, the Court ruled that the Rehaif decision applies retroactively to cases on collateral review such as Hill’s. When the Supreme Court announces a new rule, “that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348 (2004). But new rules will not apply retroactively to cases on collateral review unless the rule is considered “substantive.” Id. A rule is substantive “if it alters the range of conduct or the class of persons that the law punishes” or “narrow[s] the scope of a criminal statute by interpreting its terms.” Id. The Supreme Court’s decision in Rehaif is clearly substantive and therefore retroactive to cases such as Hill’s, because it “narrowed the scope of § 922(g) and altered the range of conduct that the statute punishes by making previously unlawful conduct—knowingly possessing a firearm while being a felon without knowing you are a felon—lawful,” the Court explained.

Conclusion

Accordingly, the Court reversed the District Court’s order denying Hill’s motion for appointment of counsel to pursue a § 2255 petition based on Rehaif and remanded the case for further proceedings. See: United States v. Hill, 98 F.4th 473 (3d Cir. 2024).

Writer’s note: The Supreme Court’s decision in Rehaif applies to various types of convictions under § 922(g), not just felon-in-possession offenses. § 922(g) makes it illegal for various types of individuals to possess firearms—“It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.” Rehaif v. United States, 588 U.S. 255 (Alito, J., dissenting). The majority decision in Rehaif clearly holds that the government must prove and a jury must find 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.” Rehaif. Thus, the Third Circuit’s decision in Hill may benefit a great number of prisoners convicted under § 922(g) of illegal possession of firearms beyond those convicted of being felons in possession.   

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