Eleventh Circuit Court of Appeals: Rehaif Announced New Rule of Substantive Law and Applies Retroactively to Initial § 2255 Motions
by David M. Reutter
The U.S. Court of Appeals for the Eleventh Circuit held that Rehaif v. United States, 139 S. Ct. 2191 (2019), “announced a new rule of substantive law that applies retroactively” to an initial 28. U.S.C. § 2255 motion.
The Court’s opinion was issued in an appeal brought by Isaac Seabrooks. He was found guilty by a federal jury on two counts: (1) being a felon in possession of a firearm and ammunition (“Count 1”) and (2) possessing a stolen firearm and ammunition (“Count 2”). In 2015, he was sentenced to 188 months’ imprisonment on Count 1 and a concurrent sentence of 120 months’ imprisonment on Count 2.
At trial, the Government proceeded on alternate theories as to Count 1. It alleged Seabrooks either had actual or constructive possession of a firearm, or alternatively, he aided and abetted his co-defendant, Nigel Butler, during a smash and grab of a truck to steal firearms. Over Seabrooks’ objection, the trial court issued an aiding and abetting jury instruction. The Eleventh Circuit affirmed his convictions on direct appeal and briefly addressed the aiding and abetting issue. See United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016).
Seabrooks timely filed a § 2255 motion to vacate, set aside, or correct conviction and sentence. Among other issues, Seabrooks argued the Government failed to demonstrate he knew Butler was a convicted felon. While the motion was pending, the Supreme Court issued the Rehaif decision, which held that the Government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm” in a prosecution under §§ 922(g) and 924(a)(2). After Rehaif was issued, Seabrooks filed a notice of case-dispositive, intervening decision before the U.S. District Court for the Southern District of Florida ruled on his motion.
The magistrate judge recommended Seabrooks’ motion be denied because his challenge to the aiding and abetting jury instruction was procedurally barred since it was decided on direct appeal, and Seabrooks had not shown either that Rehaif constitutes an intervening change in controlling law or a miscarriage of justice. Seabrooks objected, arguing that the magistrate judge erroneously applied the standard for a second or successive § 2255 motion, rather than an initial motion. Nevertheless, the District Court adopted the magistrate’s recommendation, and it dismissed Seabrooks’ motion.
Seabrooks appealed, and the Eleventh Circuit granted him a certificate of appealability on the issue of whether Rehaif applies retroactively and allows Seabrooks to overcome a procedural bar that would otherwise apply to his first § 2255 claim.
The Court noted that Seabrooks raises three issues: “(1) whether Rehaif applies retroactively to Seabrooks’s initial § 2255 motion; (2) whether Seabrooks’s Rehaif claim is procedurally barred or procedurally defaulted; and (3) whether the district court’s error in giving the aiding and abetting instruction was harmless.” It explained that it’s never analyzed a Rehaif claim brought in an initial motion to vacate — only second or successive motions. See, e.g., In re Palacios, 931 F.3d 1314 (11th Cir. 2019); In re Wright, 942 F.3d 1063 (11th Cir. 2019).
The Court began its analysis by stating the Government concedes that Rehaif applies retroactively to initial § 2255 motions, and the Court agreed. It noted that as “Seabrooks’s conviction is final, he may only rely on a ‘new rule’ announced by the Supreme Court that applies retroactively when challenging his conviction.” Generally, new substantive rules apply retroactively. Schirro v. Summerlin, 542 U.S. 348 (2004). A new substantive rule includes both “decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the [government’s] power to punish.” Id. New substantive 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.” Bousley v. United States, 523 U.S. 614(1998).
The Court explained that Rehaif narrowed the scope of §§ 922(g) and 924(a)(2) by interpreting the statutes’ terms and modifying the elements of the felon-in-possession offense. Thus, the Court ruled that Rehaif announced a new rule of law that applies retroactively to Seabrooks’ initial § 2255 motion.
Consequently, “any resulting procedural bar must be excused under Davis v. United States, 417 U.S. 333 (1974), because Rehaif caused an intervening change in law,” the Court wrote. It found that the Government waived the affirmative defense of procedural default based on Seabrooks’ failure to challenge his alleged principal liability and personal possession of the firearms on direct appeal because that defense was not raised in the District Court.
Turning to the merits of the claim, the Court found the aiding and abetting instruction was not harmless under Rehaif because the Government failed to present evidence that Seabrooks knew Butler was a convicted felon. The jury’s verdict failed to specify whether it considered only principal liability. In light of the events involving the jury instruction on aiding and abetting, the jury’s question about actual possession, and the District Court’s response, the Court concluded that “there is more than a reasonable possibility that the jury’s conviction relied on the invalid aiding and abetting instruction.” The Court further concluded that the “error actually prejudiced Seabrooks, and cannot be deemed harmless.”
Accordingly, the Court reversed the District Court’s denial of Seabrook’s § 2255 motion, vacated his felon-in-possession conviction, and remanded for further proceedings consistent with its opinion. See: Seabrooks v. United States, 32 F.4th 1375 (11th Cir. 2022).
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