The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 19-3508
_________________
UNITED STATES OF AMERICA
v.
CARLOS C. HILL,
Appellant
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-12-cr-00243-001)
District Judge: Honorable Sylvia H. Rambo
________________
Argued: June 27, 2023
Before: JORDAN, KRAUSE, and
MONTGOMERY-REEVES, Circuit Judges.
(Filed: April 12, 2024)
Lisa B. Freeland
Samuel G. Saylor [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
Gerard M. Karam
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Kenneth A. Polite
Lisa H. Miller
Joshua K. Handell
John-Alex Romano [ARGUED]
United States Department of Justice
Criminal Division
Room 7101
1400 New York Avenue NW
Washington, DC 20005
Counsel for Appellee
___________
OPINION OF THE COURT
___________
MONTGOMERY-REEVES, Circuit Judge.
2
Under 18 U.S.C. § 922(g)(1), it is unlawful for a person
who has been convicted of a crime punishable by
imprisonment of a term exceeding one year to possess a
firearm. Before 2019, in every circuit, a conviction under
§ 922(g)(1) required the government to prove that a person had
been convicted of a crime punishable by imprisonment of more
than one year and that the person knew that he or she possessed
a firearm. Relevant to this appeal, the government did not have
to prove that the person knew that he or she had been convicted
of such a crime. In 2019, in Rehaif v. United States, 139 S. Ct.
2191 (2019), the Supreme Court overturned this uniform
precedent and held that to be convicted under § 922(g), the
government must prove that the person knew that he or she is
a member of the prohibited group.
In 2013, Carlos Hill was convicted of possession of a
firearm in violation of § 922(g)(1), and, in 2019, like many
similarly situated people, he sought to collaterally attack his
conviction in the wake of Rehaif. Hill filed a request with the
District Court for appointment of counsel to pursue his Rehaif
claim in a motion under 28 U.S.C. § 2255 (a “§ 2255 motion”).
The District Court denied his request for counsel and held that
Hill did not qualify for relief under Rehaif because his 2019
§ 2255 motion was second or successive.
Hill appealed the District Court’s order, arguing that he
does qualify for relief under Rehaif because his 2019 § 2255
motion was not second or successive, and Rehaif announced a
new substantive rule that is retroactive for non-successive
§ 2255 motions. We agree and will vacate the District Court’s
order and remand for further proceedings.
3
I. BACKGROUND
In September 2012, Hill was charged with possession of
a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). The indictment charged that Hill, “having been
convicted of a crime punishable by imprisonment for a term
exceeding one year, did knowingly possess in and affecting
interstate commerce a firearm and ammunition.” App. 18.
Trial was held in March 2013. The District Court instructed
the jury that it must find the following beyond a reasonable
doubt to find Hill guilty:
First, that Carlos Hill has been
convicted of a felony; that is a
crime punishable by imprisonment
for a term exceeding one year.
Two, that after this conviction,
Carlos Hill knowingly possessed
the firearm described in the
indictment. And third, that Carlos
Hill’s possession was in or
affecting interstate or foreign
commerce.
App. 393. The District Court also reminded the jury that the
parties had stipulated that before Hill allegedly possessed the
firearm, Hill had been convicted of a crime punishable by
imprisonment for a term exceeding one year. The jury
convicted Hill.
In April 2014, the District Court sentenced Hill. At
sentencing, Hill objected to the application of the Armed
Career Criminal Act (the “ACCA”), but the District Court
overruled the objection and sentenced Hill to 235 months’
4
incarceration and a five-year term of supervised release. Hill
appealed, and this Court affirmed his conviction and sentence
in August 2016.
In February 2018, Hill filed a § 2255 motion asking that
his sentence be vacated due to ineffective assistance of counsel
and because his prior convictions no longer qualified him for a
sentencing enhancement under the ACCA. In June 2018, the
District Court partially granted Hill’s § 2255 motion because
one of Hill’s predicate convictions no longer qualified under
the ACCA. The District Court resentenced Hill without the
ACCA enhancement and entered an amended judgment.
In June 2019, in Rehaif v. United States, 139 S. Ct. 2191
(2019), the Supreme Court overturned extensive precedent,
including from this Court, and held 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.” Id. at 2200. Previously, the scienter
requirement of § 922(g) applied only to the possession of the
firearm and not to the membership in the relevant category of
banned persons. See, e.g., United States v. Boyd, 999 F.3d 171,
178 (3d Cir. 2022) (“[T]he District Court was following
established precedent when it interpreted this knowledge
requirement to apply only to gun possession.” (citing United
States v. Huet, 665 F.3d 588, 596 (3d Cir. 2012))).
In September 2019, Hill filed a motion for appointment
of counsel to file a § 2255 motion in light of the Supreme
Court’s ruling in Rehaif. The District Court denied the request
for counsel and held that Hill did not qualify for relief under
Rehaif because the Eleventh Circuit, in In re Palacios, 931
F.3d 1314 (11th Cir. 2019), “held that Rehaif did not announce
5
a new rule of constitutional law, nor was it made retroactive to
cases on collateral review.” App. 1. In so holding, the District
Court implied that Hill’s § 2255 motion was second or
successive and thus subject to the “new rule of constitutional
law” requirement under § 2255(h). See 28 U.S.C. §
2255(h)(2). Hill appealed.
II. DISCUSSION1
We resolve the following issues: (1) whether Hill needs
a certificate of appealability (“COA”) to pursue this appeal; (2)
if so, whether we should issue one because (a) Hill’s Rehaif
claim is one with at least an arguably constitutional dimension,
and (b) we should extend the reasoning of Magwood v.
Patterson, 561 U.S. 320 (2010), and Lesko v. Secretary
Pennsylvania Department of Corrections, 34 F.4th 211 (3d Cir.
2022), to the § 2255 context, making Hill’s § 2255 motion not
second or successive; and (3) whether Rehaif v. United States,
139 S. Ct. 2191 (2019), recognized a new right that applies
retroactively in cases on collateral review such that Hill can
pursue a Rehaif claim in his § 2255 action. Because we answer
each of the above questions in the affirmative, we will vacate
the District Court’s order and remand this case for further
proceedings consistent with this opinion.
1
The District Court had jurisdiction under 28 U.S.C.
§§ 2241(a) and 2255(a)–(b). This Court has jurisdiction under
28 U.S.C. §§ 1291 and 2253(a). “In a [§ 2255] proceeding, we
exercise plenary review of the district court’s legal conclusions
and apply a clearly erroneous standard to the court’s factual
findings.” United States v. Travillion, 759 F.3d 281, 289 (3d
Cir. 2014) (alteration in original) (quoting Lambert v.
Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)).
6
A. COA Requirement
The parties dispute whether Hill needs a COA to pursue
this appeal. Hill argues that he does not need a COA because
he is appealing the denial of a motion for counsel. The
Government argues that Hill needs a COA to proceed with this
appeal because the District Court’s order was a final order. We
agree with the Government.
Section 2253 of Title 28 of the United States Code
provides that an appeal from the final order in a § 2255
proceeding can be taken only if a circuit justice or judge issues
a COA. 28 U.S.C. § 2253(c)(1)(B). An order is “final” if it
disposes of the habeas proceeding on the merits, rather than
resolves 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. See
Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 282 (3d
Cir. 2021) (“Harbison used ‘the merits’ to distinguish ‘final
orders’ that conclude the habeas proceeding itself from those
orders that merely resolve a collateral issue. And while
Harbison excluded from § 2253(c)’s COA requirement orders
that do not conclude habeas proceedings, it made no further
distinction among those orders that do conclude proceedings
based on whether the disposition was substantive or procedural
in nature.” (citation omitted) (citing Harbison v. Bell, 556 U.S.
180, 183 (2009))).
In the order at issue here, the District Court skipped over
Hill’s request for counsel and definitively resolved Hill’s
Rehaif claim by concluding that it was barred because Hill
raised it in a second or successive § 2255 motion. While this
ruling does not address the substantive merits of the claim (i.e.,
deciding whether the state proved beyond a reasonable doubt
7
that Hill knew he had been convicted of a crime punishable by
imprisonment of more than one year when he possessed the
firearm), the ruling nonetheless disposed of the § 2255 motion
on the procedural merits and concluded the proceedings,
making the order a final order for COA purposes. Id. Thus,
Hill needs a COA to proceed with this appeal.
B. Issuance of a COA
The parties also dispute whether a COA should issue.
Hill argues that a COA should issue because the District Court
denied Hill’s § 2255 motion on a procedural ground and jurists
of reason would find it debatable whether Hill has stated a valid
constitutional claim and whether the District Court was correct
in its procedural ruling. The Government argues that a COA
should not issue because Hill has procedurally defaulted on his
Rehaif claim. We agree with Hill.2
The Supreme Court has established the two-prong Slack
test to determine whether a COA should issue “[w]hen the
district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional
claim.” See United States v. Doe, 810 F.3d 132, 144 (3d Cir.
2015) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Here, Hill filed a motion with the District Court requesting
appointment of counsel to pursue his Rehaif claim. The
2
As the Government points out in its brief, the District Court
never reached the question of whether Hill has procedurally
defaulted on his Rehaif claim. Neither did the District Court
reach the question of whether any default was excused. We
will remand the case for the District Court to consider Hill’s
non-successive § 2255 motion in the first instance.
8
District Court denied the request for counsel and held that Hill
did not qualify for relief under Rehaif because the Eleventh
Circuit, in In re Palacios, 931 F.3d 1314 (11th Cir. 2019),
“held that Rehaif did not announce a new rule of constitutional
law, nor was it made retroactive to cases on collateral review.”
App. 1–2. Implicit in the District Court’s ruling was a finding
that Hill’s motion was second or successive, a procedural
ground for denial. See 28 U.S.C. § 2255(h)(2) (“A second or
successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain .
. . a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.”). The District Court’s order therefore denied
Hill’s § 2255 motion on procedural grounds without reaching
the substantive merits of his claim, and we must apply the Slack
test to determine whether a COA should issue.3
To satisfy the Slack test, Hill must show, “at least, that
[(1)] jurists of reason would find it debatable whether [his
motion] states a valid claim of the denial of a constitutional
right[;]” and (2) “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”
Doe, 810 F.3d at 144 (quoting Slack, 529 U.S. at 484).
The first prong of the Slack test “is satisfied even if the
claim is only debatably constitutional.” Id. at 145. Stated
differently, the COA should issue even if the underlying
3
As discussed below, Hill’s motion is not second or successive
and thus does not need to meet the requirements of § 2255(h).
Regardless, the constitutional-right analysis relevant to the
Slack test is distinct from the new-rule-of-constitutional-law
test referred to in § 2255(h)(2).
9
decision “is only arguably (to be clear, plausibly or subject to
good faith debate) a decision of constitutional dimension.” Id.
Hill’s Rehaif claim is one with at least an arguably
constitutional dimension because the essence of Hill’s Rehaif
claim is that his § 922(g) conviction violated his constitutional
right to due process. “[T]he Constitution requires proof
beyond a reasonable doubt of every element necessary to
constitute the crime. Due process is violated when a jury
instruction relieves the government of its burden of proving
every element beyond a reasonable doubt.” Bennett v.
Superintendent Graterford SCI, 886 F.3d 268, 284–85 (3d Cir.
2018) (citations omitted) (first citing In re Winship, 397 U.S.
358, 364 (1970); then Waddington v. Sarausad, 555 U.S. 179,
190–91 (2009); and then Sandstrom v. Montana, 442 U.S. 510,
521 (1979)). This includes when a jury instruction relieves the
government of its burden to prove the necessary scienter. See
id. at 288 (“Thus, we conclude that the trial court’s jury
instructions relieved the Commonwealth of its burden of
proving that Bennett had the specific intent to kill, in violation
of his right to due process under the United States
Constitution.”).
In Rehaif, the Supreme Court held that the scienter
requirement applied not just to the possession element of
§ 922(g) but also to the status element. 139 S. Ct. at 2194,
2196. This holding means that to secure a conviction under
§ 922(g), the government must prove beyond a reasonable
doubt that the defendant knowingly possessed the firearm and
that when he possessed it, he knew that he had the relevant
status—i.e., he knew that he was a fugitive from justice, had
been dishonorably discharged from the Armed Forces, had
renounced his United States citizenship, etc. See id. at 2194
(“To convict a defendant, the Government therefore must show
10
that the defendant knew he possessed a firearm and also that
he knew he had the relevant status when he possessed it.”); 18
U.S.C. § 922(g)(2), (6)–(7) (prohibiting possession of a
firearm by “any person . . . who is a fugitive from justice; . . .
who has been discharged from the Armed Forces under
dishonorable conditions; [or] who, having been a citizen of the
United States, has renounced his citizenship”). There is no
question that the District Court did not instruct the jury at Hill’s
trial that to convict Hill they needed to find that Hill knew he
had the relevant status, relieving the government of its burden
to prove the necessary scienter for the status element. 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.
Turning to the second prong, the parties both
acknowledge that Hill’s second-in-time § 2255 motion is not
second or successive, making the District Court’s procedural
ruling incorrect, and we agree. This Circuit recently
considered whether a petition under 28 U.S.C. § 2254 is second
or successive if it attacks an undisturbed conviction after a new
sentence was imposed. See Lesko v. Sec’y Pa. Dep’t of Corr.,
34 F.4th 211 (3d Cir. 2022). This Circuit held that it is not. Id.
at 225. The question we face in this appeal is whether the
reasoning of Lesko extends to petitions brought under § 2255.4
We hold that it does.
4
Although 28 U.S.C. §§ 2244 and 2255 refer to habeas
“application[s],” we follow the Supreme Court’s convention
and use the word “petition” interchangeably with the word
“application.” See, e.g., Magwood v. Patterson, 561 U.S. 320,
324 n.1 (2010).
11
In Lesko, this Court considered the Supreme Court’s
decision in Magwood v. Patterson, 561 U.S. 320 (2010),
interpreting the meaning of the term “second or successive” for
application under §§ 2244 and 2254. 34 F.4th at 223–25. In
Magwood, the Supreme Court “granted certiorari to determine
whether Magwood’s application challenging his 1986 death
sentence, imposed as part of resentencing in response to a
conditional writ [of habeas corpus] from the District Court, is
subject to the constraints that § 2244(b) imposes on the review
of ‘second or successive’ habeas applications.” 561 U.S. at
330. The Supreme Court reasoned that “second or successive”
is a term of art and that the text and the context of the statute
show that the term “must be interpreted with respect to the
judgment challenged.” Id. at 332–33. The Supreme Court
ultimately held that the petition challenging the new sentence
is not “second or successive.” Id. at 342.
The Lesko panel held that “Magwood compels the
conclusion that a prisoner who obtains relief as to his sentence
may nonetheless take another bite at the apple in contesting his
original conviction.” Lesko, 34 F.4th at 223 (emphasis added)
(citing Johnson v. United States, 623 F.3d 41, 46 (2d Cir.
2010)). The Lesko panel acknowledged that a circuit split
exists after Magwood but sided with the majority of circuits
that have considered the issue:
12
[A]fter careful consideration, we
hold that the majority
interpretation of § 2244(b) is
correct: a prisoner who receives
relief as to his sentence is not
barred from raising, in a second-
in-time habeas petition, a
challenge to an undisturbed
conviction. Notwithstanding the
troubling implications for comity
and finality, we are persuaded the
reasoning of Magwood compels
this conclusion.
Id. at 224.
Section 2244(a) governs writs of habeas corpus for
prisoners detained by federal court order, while § 2244(b)
applies to prisoners detained by order of a state court. Both of
these provisions restrict a prisoner’s ability to file more than
one collateral attack on their conviction and sentence—a so-
called “second or successive” application. See 28 U.S.C.
§ 2244(a) (“No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus to inquire
into the detention of a person pursuant to a judgment of a court
of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United
States on a prior application for a writ of habeas corpus, except
as provided in section 2255.”); 28 U.S.C. § 2255(h) (“A second
or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals . . ..”); 28
U.S.C. § 2244(b)(1) (“A claim presented in a second or
successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.”). And
13
we see no indication that Congress intended the term of art,
“second or successive,” to operate differently with regard to
state and federal prisoners. Based on the overlap in language
and a lack of any indication of contrary congressional intent,
we hold that Magwood and Lesko also apply in the § 2255
context.5
Hill filed his first-in-time § 2255 motion in 2018
challenging his sentence. The District Court granted that
motion in part, resentenced Hill, and entered an amended
judgment on June 12, 2018. The motion for appointment of
counsel that Hill filed in 2019, which the District Court treated
as a second-in-time § 2255 motion challenging Hill’s
conviction, was the first § 2255 motion challenging the June
2018 judgment. Thus, it is not considered a “second or
successive” § 2255 motion, see Lesko, 34 F.4th at 224, and
need not meet the requirements of § 2255(h). 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.
Because both prongs of the Slack test have been met, we
will issue Hill a COA for this appeal.
5
Our sister courts agree. Both the Second and Fifth Circuits
have held that Magwood applies with equal force in the § 2255
context based on the overlapping “second or successive”
language in § 2244(b) and § 2255(h). Johnson v. United
States, 623 F.3d 41, 45 (2d Cir. 2010); In re Lampton, 667 F.3d
585, 587–88 (5th Cir. 2012).
14
C. Rehaif and Retroactivity for Collateral Attack
Purposes
We have established that Hill’s § 2255 motion at issue
here is not second or successive and thus need not meet the
requirements of § 2255(h). But that is not the end of the
inquiry.6 When a decision of the Supreme Court “results in a
‘new rule,’ that rule applies to all criminal cases still pending
on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351
(2004). But for convictions that are already final, “the rule
applies only in limited circumstances.” Id. at 351. In general,
new procedural rules do not apply retroactively, while new
substantive rules do. Id. at 351, 352. A rule is procedural if it
regulates “only the manner of determining the defendant’s
culpability.” Id. at 353. 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. at 351, 353 (citing Bousley v. United States, 523
U.S. 614, 620–21 (1998)). 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
6
The Government argues that Hill has procedurally defaulted
on his Rehaif claim and cannot overcome that default. And
Hill recognizes that to succeed on his 2255 motion, he must
clear a number of hurdles, including any possible procedural
default and proving the merits of his claim. This opinion does
not address any of these issues or arguments. Instead, we
remand for the District Court to consider Hill’s Rehaif claim in
the first instance.
15
impose upon him.” Id. at 352 (quoting Bousley, 523 U.S. at
620).
We agree with Hill and the Government that the
Supreme Court announced a new substantive rule in Rehaif. In
Rehaif, the Supreme Court overturned extensive circuit court
precedent and held that under §§ 922(g) and 924(a)(2), the
government must prove that the defendant knew he or she was
a member of a class of people that the statute prohibits from
possessing firearms. Rehaif, 139 S. Ct. at 2200. Previously,
circuit courts, including this Court, had held that the scienter
element of § 922(g) applied only to the possession of the gun
and not to the membership in the prohibited class. United
States v. Boyd, 999 F.3d 171, 178 (3d Cir. 2021) (“[T]he
District Court was following established precedent when it
interpreted this knowledge requirement to apply only to gun
possession.” (citing United States v. Huet, 665 F.3d 588, 596
(3d Cir. 2012))). In other words, before Rehaif and at the time
of Hill’s § 922(g) conviction, the government only had to
prove that Hill knowingly possessed the firearm and that before
possessing the firearm, he had been convicted of a crime
punishable by imprisonment of a term exceeding one year. But
the government did not have to prove that Hill knew he had
been convicted of a crime punishable by imprisonment of a
term exceeding one year. See id. (“The Supreme Court
subsequently held that, ‘in a prosecution 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.’” (quoting Rehaif, 139 S. Ct. at 2200)).
By holding that the scienter requirement also applied to the
prohibited status, the Supreme Court narrowed the scope of §
922(g) and altered the range of conduct that the statute
16
punishes by making previously unlawful conduct—knowingly
possessing a firearm while being a felon without knowing you
are a felon—lawful. This makes the new rule announced in
Rehaif substantive and thus retroactive for collateral review
purposes.7
III. CONCLUSION
For the reasons discussed above, we will issue a COA,
vacate the District Court’s order, and remand for further
proceedings consistent with this opinion.
7
The other circuits to address this question to date have
reached the same conclusion. E.g., United States v. Waters, 64
F.4th 199, 203–04 (4th Cir. 2023); United States v. Kelley, 40
F.4th 250, 251–53 (5th Cir. 2022); Baker v. United States, 848
F. App’x 188, 189–90 (6th Cir. 2021); Seabrooks v. United
States, 32 F.4th 1375, 1382–83 (11th Cir. 2022).
This Circuit’s decision in In re Sampson, 954 F.3d 159, 161
(3d Cir. 2020), does not compel a different conclusion.
Sampson did not address non-successive motions like the one
here, and therefore Sampson is not on point for the current
analysis.
17