USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 1 of 16
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-159
In re: RANDOLPH LEE MCNEILL,
Movant.
On Motion for Authorization to File Successive § 2255 Motion in the United States District Court for the Eastern District of North Carolina, at Raleigh.
Argued: March 9, 2023 Decided: May 22, 2023
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and FLOYD, Senior Circuit Judge.
Motion denied by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Senior Judge Floyd joined.
ARGUED: Nathaniel Wilson Reisinger, WILMERHALE LLP, Washington, D.C., for Movant. Rudy E. Renfer, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Respondent. ON BRIEF: Catherine M.A. Carroll, Alex Tucker Stewart, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Movant. Michael F. Easley, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Respondent. USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 2 of 16
WYNN, Circuit Judge:
In 2009, a jury convicted Randolph Lee McNeill of knowingly possessing a firearm
as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). McNeill was sentenced to
180 months’ imprisonment. His direct appeal and initial application for postconviction
relief under 28 U.S.C. § 2255 were unsuccessful. Now, McNeill moves this Court for
authorization to file a second or successive § 2255 application premised on the Supreme
Court’s decision in Rehaif v. United States. And he argues in the alternative that, if his
motion is denied, he will be authorized to file a traditional § 2241 habeas application
through § 2255(e)’s savings clause.
We deny McNeill’s motion for authorization to file a second or successive § 2255
application because Rehaif did not announce a constitutional rule. But as a consequence of
our determination that McNeill may not file a § 2255 application, we hold that he may file
a § 2241 application under the savings clause.
I.
McNeill was charged with “knowingly possess[ing], in and affecting commerce, a
firearm,” “having been convicted of a crime punishable by imprisonment for a term
exceeding one year,” in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 J.A. 11. 2
1 18 U.S.C. § 922(g)(1) (2008) (“It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition . . . .”); id. § 924(a)(2) (2008) (“Whoever knowingly violates” § 922(g) “shall be fined as provided in this title, imprisoned not more than 10 years, or both.”). 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
2 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 3 of 16
At trial, the parties stipulated that, “as of September 2, 2008, the Defendant had
previously been convicted of a felony; that is, a crime punishable by a term of
imprisonment exceeding one year and that the Defendant’s civil rights to possess a firearm
have not been restored.” J.A. 27. The government did not introduce evidence that McNeill
knew of his felon status at the time of the offense conduct. McNeill was convicted by a
jury and sentenced to 180 months’ imprisonment. He appealed, and this Court affirmed.
United States v. McNeill, 419 F. App’x 427 (4th Cir. 2011) (per curiam).
In 2012, McNeill filed a motion to vacate his conviction under 28 U.S.C. § 2255.
The government moved to dismiss the motion, and the district court granted the motion to
dismiss and denied a certificate of appealability. McNeill subsequently filed three motions
in this Court for authorization to file a second or successive § 2255 application, in February
2016, July 2016, and April 2019; all were denied.
In June 2019, the United States Supreme Court decided Rehaif v. United States, 139
S. Ct. 2191 (2019). In Rehaif, the Court held that, in order for a defendant to be convicted
of “knowingly” possessing a firearm as an individual prohibited from possessing a firearm
in violation of §§ 922(g) and 924(a)(2), the government must prove both “that the
defendant knew he possessed a firearm and also that he knew he had the relevant status
when he possessed it.” Id. at 2194.
On February 27, 2020, McNeill filed another motion for authorization to file a
second or successive § 2255 motion based on a Rehaif claim and others. This Court
appointed counsel, who filed a brief arguing that McNeill should be granted authorization
3 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 4 of 16
to file a successive § 2255 motion based on the Rehaif claim. The 2020 motion for
authorization is now before us.
II.
A.
The writ of habeas corpus is “a writ antecedent to statute,” Farkas v. Butner, 972
F.3d 548, 553 (4th Cir. 2020) (quoting Rasul v. Bush, 542 U.S. 466, 473 (2004)), which
“secured the ‘natural inherent right’ of personal liberty,” and “‘which could not be
surrendered or forfeited’ save for the commission of a crime,” id. (quoting 3 William
Blackstone, Commentaries on the Laws of England 133 (1st ed. 1768)). Although the writ
“existed before statute, its contours have been molded by the legislature over time.” Id. In
1867, Congress codified the right to pursue habeas relief, which is now found at 28 U.S.C.
§ 2241. United States v. Hayman, 342 U.S. 205, 211 (1952).
In the aftermath of the 1867 enactment, the federal courts saw a substantial increase
in the number of applications for habeas relief, including applications that were “repetitious
and patently frivolous.” Id. at 212 (footnote omitted). And because the statute required
applications to be filed in the district of confinement, the increased volume of applications
was concentrated in the districts containing major federal penal institutions, taxing those
district courts. Id. at 213–14.
To address these challenges, in 1948, Congress created a new statutory path for
federal prisoners to collaterally attack their convictions, codified at 28 U.S.C. § 2255,
which allowed individuals in federal custody to pursue relief in the sentencing court, rather
than the court for the district in which they were confined. Id. at 214–19; see Act of June
4 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 5 of 16
25, 1948, Pub. L. No. 80-773, § 2255, 62 Stat. 869, 967–968. The “sole purpose” of § 2255
“was to minimize the difficulties encountered in habeas corpus hearings by affording the
same rights in another and more convenient forum.” Hayman, 342 U.S. at 219.
Section 2255 permits individuals who have been convicted of federal crimes and
are consequently in federal custody, 3 and who have exhausted their direct appeals, to move
the sentencing court to vacate, set aside, or correct their sentence on the grounds that the
sentence “was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a).
Where an individual is eligible to pursue collateral review through § 2255, that
statute generally provides the only mechanism available to him, Farkas, 972 F.3d at 554,
with one exception: § 2255(e)—sometimes called the “savings clause”—“permits a
prisoner to sidestep” the § 2255 process “and instead file a traditional § 2241 habeas
application if it ‘appears that the [§ 2255] remedy by motion is inadequate or ineffective to
test the legality of his detention.’” Id. at 555 (quoting 28 U.S.C. § 2255(e)).
3 McNeill was released from prison on March 9, 2023, beginning a term of supervised release. Although § 2255 requires a prisoner to be “in custody” in order to employ its procedures, the custody requirement is assessed at the time of filing, and is in any event satisfied by serving a term of supervised release. United States v. Swaby, 855 F.3d 233, 238–39 (4th Cir. 2017). Thus, McNeill satisfies the custody requirement. And the controversy here is not mooted by McNeill’s release from prison: the “mere ‘possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify [the Court’s] dealing with the merits.’” Plymail v. Mirandy, 8 F.4th 308, 315 (4th Cir. 2021) (quoting Pollard v. United States, 352 U.S. 354, 358 (1957)). 5 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 6 of 16
More recent changes to the statutory scheme have narrowed the circumstances in
which a federal prisoner may collaterally attack his conviction. After the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, once a person in federal custody has filed an initial § 2255 motion, he must
clear additional hurdles to file a second or successive one. Specifically, before filing the
second or successive motion in the sentencing court, he must obtain a certification from
the court of appeals that the motion contains either of the following:
(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); accord id. § 2244(b)(3)(A) (“Before a second or successive
application permitted by this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the district court to consider the
application.”). In turn, the court of appeals may authorize the second or successive
application only upon finding that the applicant has made a prima facie showing that he
satisfies the statutory requirements. Id. § 2244(b)(3)(C).
Although AEDPA worked a major change to the availability of collateral review of
federal convictions, the traditional statutory habeas path—§ 2241—remains available
when the remedy provided by § 2255 is “inadequate or ineffective to test the legality” of
detention of an individual in federal custody. Id. § 2255(e). And AEDPA’s constraints on
6 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 7 of 16
second or successive applications do not apply to traditional § 2241 habeas applications
filed pursuant to the § 2255(e) savings clause. Farkas, 972 F.3d at 555.
B.
In this case, because McNeill filed an initial § 2255 motion in 2012, authorization
from this Court is required before McNeill may file a second or successive § 2255 motion.
McNeill argues that this Court should grant him authorization to file a successive § 2255
application based on Rehaif because, he asserts, that case announced “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)(2). We disagree.
To be sure, Rehaif announced a new rule. “[A] case announces a new rule if the
result was not dictated by precedent existing at the time the defendant’s conviction became
final.” Teague v. Lane, 489 U.S. 288, 301 (1989). Put differently, a rule is “new” when “it
breaks new ground or imposes a new obligation on the States or the Federal Government.”
Id. The rule announced in Rehaif was not dictated by prior precedent; indeed, Rehaif
“overturn[ed] the long-established interpretation” of the statute “that ha[d] been adopted
by every single Court of Appeals to address the question,” Rehaif, 139 S. Ct. at 2201 (Alito,
J., dissenting), including the Fourth Circuit, see United States v. Langley, 62 F.3d 602, 606
(4th Cir. 1995) (en banc) (holding that the government was not required to prove that the
defendant knew of his status as a felon in order to secure a conviction under §§ 922(g)(1)
and 924(a)). Rehaif therefore abrogated our precedent on that score. United States v.
Lockhart, 947 F.3d 187, 196 (4th Cir. 2020) (en banc) (recognizing that Rehaif abrogated
Langley). And after Rehaif, a felon cannot be convicted of knowingly possessing a firearm
7 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 8 of 16
under §§ 922(g)(1) and 924(a)(2) unless he knew he was a felon, elucidating an additional
element that the government must prove to secure a conviction. See Rehaif, 139 S. Ct. at
2194 (majority op.). Thus, Rehaif announced a new rule.
But Rehaif did not announce a new constitutional rule, as required by § 2255(h)(2).
In Rehaif, the Supreme Court analyzed the statutory language of 18 U.S.C. § 924(a)(2),
which provides penalties for anyone who “knowingly violates” § 922(g). Section 922(g)
makes it unlawful for any person who falls into any of nine categories of persons to, inter
alia, possess, in or affecting commerce, a firearm. One such category encompasses those
who “ha[ve] been convicted in any court of[] a crime punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 922(g)(1).
Rehaif concerned “the scope of the word ‘knowingly’” in § 924(a)(2). Rehaif, 139
S. Ct. at 2194. Specifically, “[d]oes it mean that the Government must prove that a
defendant knew both that he engaged in the relevant conduct (that he possessed a firearm)
and also that he fell within the relevant status (that he was a felon, an alien unlawfully in
this country, or the like)?” Id. The Court held that “the word ‘knowingly’ applies both to
the defendant’s conduct and to the defendant’s status.” Id. In reaching this conclusion, the
Court examined congressional intent, id. at 2195, and applied “a basic principle that
underlies the criminal law, namely, the importance of showing what Blackstone called ‘a
vicious will,’” id. at 2196 (quoting 4 William Blackstone, Commentaries on the Laws of
England 21 (1769)).
McNeill argues that Rehaif announced a constitutional rule by adding an element
that the government must prove under §§ 922(g) and 924(a)(2). His argument goes like
8 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 9 of 16
this: The Fifth and Sixth Amendments to the Constitution require that an indictment include
every element of a charged offense. And those Amendments also require that every element
of a crime be submitted to a jury and proven beyond a reasonable doubt. So, when a
defendant is convicted based on an indictment that fails to include all elements of the
offense, or following a jury trial in which the government fails to prove an element beyond
a reasonable doubt, his constitutional rights have been violated. Therefore, McNeill argues,
by enumerating a new element that must be proved in prosecutions under §§ 922(g) and
924(a)(2), Rehaif announced a rule that sounds in the Fifth and Sixth Amendments to the
Constitution—a constitutional rule.
The problem with McNeill’s reasoning is that we have already addressed—and
rejected—the argument that a new rule is a constitutional one simply because it has, as
McNeill puts it, “constitutional implications.” Opening Br. at 7. In In re Vial, this Court,
sitting en banc, addressed whether the Supreme Court’s decision in Bailey v. United States
created a new rule of constitutional law. 115 F.3d 1192 (4th Cir. 1997) (en banc).
In Bailey, the Supreme Court assessed the meaning of “use” in a statute imposing a
minimum prison term for any person who “during and in relation to any crime of violence
or drug trafficking crime . . . uses or carries a firearm.” Bailey v. United States, 516 U.S.
137, 138 (1995) (quoting 18 U.S.C. § 924(c)(1)). The Court examined “the language of the
statute,” id. at 144, the “bare meaning of the word [‘use’]” and “its placement and purpose
in the statutory scheme,” id. at 145, and the “amendment history of § 924(c),” which “casts
further light on Congress’ intended meaning,” id. at 147. Relying on these sources of
insight, the Court held that “‘use’ must connote more than mere possession of a firearm by
9 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 10 of 16
a person who commits a drug offense,” instead requiring “an active employment of the
firearm by the defendant.” Id. at 143.
The issue of whether Bailey announced a constitutional rule because its holding was
“derived from constitutional principles,” was presented to this Court in In re Vial. 115 F.3d
at 1195. Specifically, Vial argued that the Bailey holding was a constitutional one because
it relied on the rule of lenity, which itself relies on “at least four values of constitutional
gravity: fair notice, majoritarian policy-making, federalism, and . . . the separation of
powers.” Id. (quoting In re Vial Movant’s Br. at 7). But we rejected this argument because
“the Bailey Court neither referred to, nor relied upon, any provision of the Constitution as
support for its holding.” Id. Thus, even if the Court’s holding resonated with constitutional
themes, the fact that the Supreme Court did not so much as mention the Constitution or
constitutional principles defeated Vial’s argument.
So too here. McNeill argues that Rehaif announced a constitutional rule because it
implicates constitutional principles, but the Rehaif Court did not once mention the
Constitution. See Rehaif, 139 S. Ct. at 2194–2200. And, relying on our reasoning from In
re Vial, we will not find that a rule is a constitutional one merely because it is arguably
undergirded by constitutional themes. 4
4 At oral argument, counsel for McNeill argued that In re Vial could be distinguished from the present case because of differences between the underlying Supreme Court cases at issue—Bailey and Rehaif. Specifically, counsel asserted that Bailey involved only the interpretation of an existing statutory element, whereas Rehaif created a new statutory element, so the In re Vial rule should not apply. We find this distinction unpersuasive. Both Bailey and Rehaif interpreted the relevant statutes and clarified what the government must prove. We therefore see no reason that the In re Vial rule should not be dispositive here. 10 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 11 of 16
Thus, Rehaif did not announce a constitutional rule. This conclusion accords with
the conclusions of every other circuit to have reached the question of whether Rehaif
provides a basis for filing a second or successive § 2255 application. See Mata v. United
States, 969 F.3d 91, 94 (2d Cir. 2020) (per curiam) (explaining that because “Rehaif
involved only a question of statutory interpretation and thus did not announce a new rule
of constitutional law within the meaning of 28 U.S.C. § 2255(h)(2),” Rehaif could not
“serve as a basis for a second or successive motion brought under 28 U.S.C. § 2255”); In
re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (“First and foremost, Rehaif did not state a
rule of constitutional law at all.”); Khamisi-El v. United States, 800 F. App’x 344, 349 (6th
Cir. 2020) (“The rule stated in Rehaif is a matter of statutory interpretation, not a ‘new rule
of constitutional law.’” (quoting In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019)));
Tate v. United States, 982 F.3d 1226, 1227 (9th Cir. 2020) (per curiam) (“Tate has not
made a prima facie showing that Rehaif announced a new constitutional rule.”); In re
Palacios, 931 F.3d at 1315 (11th Cir.) (“Rehaif . . . did not announce a ‘new rule of
constitutional law’. . . .”).
Because the new rule McNeill seeks to rely on is not a constitutional rule, he cannot
satisfy § 2255(h)(2)’s gatekeeping requirements, and his motion for authorization must be
denied.
C.
But our inquiry does not end there because as we explained above, Congress left
open the possibility that an individual in federal custody could file a traditional § 2241
habeas application in limited circumstances. To that end, McNeill argues that, if we find
11 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 12 of 16
he cannot proceed to file a successive § 2255 application, it follows that he may proceed
instead under 28 U.S.C. § 2255(e)—the “savings clause.” We agree.
As discussed, § 2255(e) provides that a person in federal custody who is eligible to
apply for relief under § 2255 but has failed to do so or has been denied relief may not file
an application for a writ of habeas corpus, unless the remedy provided by a § 2255 motion
would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). If the § 2255 motion is inadequate, the individual may file a habeas petition
under § 2241 in the district in which he is confined. Id. § 2241; accord In re Jones, 226
F.3d 328, 332–33 (4th Cir. 2000).
But § 2255 “is not inadequate or ineffective merely because an individual is unable
to obtain relief under that provision.” In re Jones, 226 F.3d at 333. Rather, § 2255 is
inadequate or ineffective, and thus a person in federal custody is authorized to challenge
his conviction through a § 2241 application under the savings clause, when three conditions
are satisfied: first, “at the time of conviction, settled law of this circuit or the Supreme
Court established the legality of the conviction;” second, “subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be criminal;” and third, “the prisoner
cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of
constitutional law.” Id. at 333–34. McNeill can satisfy these three elements.
As for the first and third requirements of the In re Jones test, the above analysis of
the § 2255(h)(2) test—demonstrating that Rehaif announced a new, non-constitutional
rule—makes clear that they are easily met.
12 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 13 of 16
That leaves the second element, which requires that, “subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be criminal.” Id. at 334. Although Rehaif
plainly changed the law of this circuit, Lockhart, 947 F.3d at 196, and did so years after
McNeill’s direct appeal and first § 2255 motion, 5 the government contends that it did not
effect a substantive change in the law that rendered the conduct of which McNeill was
convicted non-criminal. We disagree.
The government argues that “possession of a firearm by a convicted felon[] remains
a criminal offense today just as it was in 2008 and 2009.” Government’s Br. at 19.
Therefore, it argues, the conduct of which McNeill was convicted is still criminal. The
government points out that a number of district courts in this circuit have taken this view.
See, e.g., Erby v. Breckon, No. 7:18-cv-00588, 2020 WL 1443154, at *7 (W.D. Va. Mar.
24, 2020) (citing district courts in the Fourth Circuit that have concluded that Rehaif “did
not change substantive law because the conduct for which the petitioner was convicted is
still illegal”).
It is true that, after Rehaif, possessing a firearm as a felon remains criminal under
§ 922(g). But the government did not charge McNeill with simply “possessing” a firearm
in violation of § 922(g). It charged him with “knowingly” doing so under §§ 922(g) and
5 We decided McNeill’s direct appeal in 2011, McNeill, 419 F. App’x at 427, and the Supreme Court denied certiorari that year, McNeill v. United States, 565 U.S. 877 (2011) (mem.). McNeill’s first § 2255 motion was dismissed in 2012. McNeill v. United States, 5:09–CR–080–1BO, 5:12–CV–312–BO, 2012 WL 4486224, at *1 (E.D.N.C. Sept. 28, 2012). The Supreme Court decided Rehaif in 2019. 13 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 14 of 16
924(a). That McNeill’s conviction might have survived Rehaif if the government had
charged him under § 922(g) alone is of no moment: the government chose not to do so.
Indeed, the reasoning of Rehaif itself provides that possession of the firearm cannot
be disentangled from the scienter requirement for individuals charged under §§ 922(g) and
924(a)(2). In Rehaif, the Supreme Court noted that “the text of § 922(g) . . . lists the
elements that make a defendant’s behavior criminal.” 139 S. Ct. at 2196. But, the Court
explained, the addition of § 924(a)(2) meant that the “knowing” requirement must be
applied to each of those elements, because “[s]cienter requirements” help to “separate those
who understand the wrongful nature of their act from those who do not,” id. (quoting
United States v. X-Citement Video, Inc., 513 U.S. 64, 73 n.3 (1994)), and “[w]ithout
knowledge of [the relevant] status, the defendant may well lack the intent needed to make
his behavior wrongful,” id. at 2197. Thus, although the conduct of possessing a firearm
remains a valid part of the criminal offense with which McNeill was charged, proving that
conduct is not enough to secure a conviction under §§ 922(g)(1) and 924(a)(2) after Rehaif
unless the government also proves that the defendant knew he was in the class of persons
barred from doing so.
This Court’s precedent further supports the conclusion that McNeill can satisfy the
second In re Jones prong. In Hahn v. Moseley, we applied the In re Jones test, considering
whether a decision by the Tenth Circuit rendered the conduct of which the petitioner had
14 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 15 of 16
been convicted no longer criminal. 6 931 F.3d 295, 301 (4th Cir. 2019). There, the petitioner
had been convicted of two § 924(c) charges related to possessing firearms in furtherance
of certain drug activity, both based on possession of a single gun collection. Id. at 298
(citing 18 U.S.C. § 924(c)(1)(A)). Years after Hahn’s conviction by a jury, the Tenth
Circuit held in United States v. Rentz that, “as a matter of statutory construction,” “each
§ 924(c) charge ‘requires an independent use, carry, or possession,’” id. at 299 (quoting
United States v. Rentz, 777 F.3d 1105, 1115 (10th Cir. 2015) (en banc)) (emphasis added),
and therefore that “multiple charges under § 924(c) based on the same conduct” were
improper, id. We held that Rentz constituted a substantial change in the law, rendering
“non-criminal the conduct on which [Hahn’s] second § 924(c) conviction was based”—
that is, possession of the same gun collection as the first § 924(c) charge—satisfying the
second prong of In re Jones, even though possessing firearms in furtherance of certain drug
activity generally remained illegal. Id. at 301–03. Thus, in Hahn, the change in the law
went to the “statutory framework” for charging § 924(c) offenses, id. at 299—in other
words, what the government had to charge and prove to secure a conviction. So too here.
6 We applied Tenth Circuit law because the crimes occurred in New Mexico and Hahn was therefore convicted and sentenced in the District of New Mexico. Hahn, 931 F.3d at 297–98. He filed the § 2241 petition at issue in the case in the District of South Carolina, where he was detained, and this Court therefore had jurisdiction over his appeal. Id. at 300.
15 USCA4 Appeal: 20-159 Doc: 47 Filed: 05/22/2023 Pg: 16 of 16
Therefore, McNeill can satisfy the In re Jones test and may file a § 2241 application
in the district of his confinement pursuant to § 2255(e). 7
III.
Because Rehaif did not announce a constitutional rule, we deny McNeill’s motion
for authorization to file a second or successive § 2255 application under § 2255(h)(2). And
because McNeill cannot proceed under § 2255(h)(2) because his motion does not rely on a
new constitutional rule, he may proceed to file a savings clause application under
§ 2255(e).
MOTION DENIED
7 The government asserts that because McNeill does not need authorization from this Court before filing a § 2241 application under the savings clause, we may not grant authorization to proceed under the savings clause. Instead, the government argues, McNeill must simply proceed to file his § 2241 petition with the district court. The government correctly notes that, whereas a prisoner must obtain authorization from this Court before filing a second or successive § 2255 application, see 28 U.S.C. § 2244(b)(3)(A), no such authorization is required to file a savings-clause application, see id. §§ 2241, 2255(e). But in rendering our decision today, we simply tread the same ground already trod by this Court in In re Jones. 226 F.3d at 334 (holding, in the context of a motion for authorization to file a second or successive § 2255 application, that “§ 2255 [was] inadequate or ineffective to test the legality of Jones’ conviction” and therefore that Jones was “entitled to file a habeas petition in the district of his confinement pursuant to § 2241”). 16