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                                                                                      [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                 ________________________

                                      No. 19-12571-G
                                 ________________________

IN RE: FELIX M. PALACIOS,

                                                                                        Petitioner.

                                __________________________

                      Application for Leave to File a Second or Successive
                                 Motion to Vacate, Set Aside,
                           or Correct Sentence, 28 U.S.C. § 2255(h)
                                _________________________

Before: WILSON, ROSENBAUM and NEWSOM, Circuit Judges.

B Y T H E P A N E L:

       Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Felix M. Palacios has filed an

application seeking an order authorizing the district court to consider a second or successive

motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization

may be granted only if this Court certifies that the second or successive motion contains a claim

involving:

              (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.
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28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v.

Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s

determination that an applicant has made a prima facie showing that the statutory criteria have

been met is simply a threshold determination).

       In his application, Palacios raises one claim. He relies on a “new rule of constitutional

law,” as announced in Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019), to challenge

his conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g).

He argues that his conviction and sentence under § 922(g) should be vacated because the

government did not prove—as he argues Rehaif requires—that he knew he possessed a firearm or

that he knew he was a felon when he possessed the firearm. Additionally, Palacios asks this Court

to hold his application in abeyance until the Supreme Court makes its holding in Rehaif

retroactively applicable to cases on collateral review.

        Here, Palacios’s claim fails to meet the statutory criteria, and this Court should deny it.

See 28 U.S.C. § 2255(h)(2). His claim relies solely on Rehaif, which did not announce a “new

rule of constitutional law,” but, instead, clarified that, in prosecuting an individual under 18 U.S.C.

§ 922(g) and 18 U.S.C. § 924(a)(2)—which provides that anyone who “knowingly violates”

§ 922(g) can be imprisoned for up to 10 years—the government must prove that the defendant

knew he violated each of the material elements of § 922(g). Rehaif, 139 S. Ct. at 2195-96

(emphasis added). Moreover, even if Rehaif had announced a new rule of constitutional law, as

Palacios concedes in his application, it was not made retroactive to cases on collateral review by


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the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 661-66 (2001).

       Accordingly, Felix M. Palacios has failed to make a prima facie showing of the existence

of either of the grounds set forth in 28 U.S.C. § 2255, and his application for leave to file a second

or successive motion is hereby DENIED.




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ROSENBAUM, Circuit Judge, concurring:

       Palacios wishes to raise a claim under Rehaif v. United States, 139 S. Ct. 2191

(2019), seeking to vacate his conviction under 18 U.S.C. §§ 922(g) and 924(a)(2),

based on the assertion that the government failed to allege and prove he had

knowledge he possessed a firearm and was a felon. I concur in the panel’s order

because I must: Palacios’s claim is not cognizable under 28 U.S.C. § 2255(h), since

it involves only a new rule of statutory law, not constitutional law. And in this

Circuit, Palacios’s claim is not cognizable under 28 U.S.C. § 2255(e), either, because

under McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076,

1093 (11th Cir. 2017) (en banc), by which we are bound, we held that a prisoner

may file a second or successive claim for habeas relief, challenging his conviction

through that subsection only when the sentencing court is unavailable.1



        1 I agree that a prisoner may perhaps be able to use § 2255(e) to challenge his conviction
when the sentencing court is unavailable. But I firmly disagree that this circumstance stands alone
as the only one where a prisoner can use § 2255(e) to challenge his conviction. Were that the
case, § 2255 would preclude the filing of certain habeas claims, such as the one at issue here, that
appear to be constitutionally required under the Suspension Clause. See McCarthan, 851 F.3d at
1121-58 (Rosenbaum, J., dissenting); see also infra. In McCarthan, we also said a prisoner may
file a second or successive claim under § 2255(e) to challenge the execution of his sentence.
McCarthan, 851 F.3d at 1092-93. I continue to believe this aspect of our ruling in McCarthan is
also demonstrably wrong. Among other reasons, 28 U.S.C. § 2241, by its terms, already permits
such claims to be brought without reference to § 2255, so reading § 2255(e) to allow execution-
of-sentence claims would render it surplusage. See McCarthan, 851 F.3d at 1128-19, 1148
(Rosenbaum, J., dissenting); see also Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352
(11th Cir. 2008) (“[C]hallenges to the execution of a sentence, rather than the validity of the
sentence itself, are properly brought under § 2241.”). Of course, that aspect of our decision in
McCarthan is not relevant to the pending application for an order seeing authorization to file a
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       I write separately, though, because I continue to believe that McCarthan is

incorrect as a matter of law, and new rules of statutory law that are retroactively

applicable must be cognizable under 28 U.S.C. § 2255(e), § 2255’s constitutional-

failsafe provision. As I have previously explained, see McCarthan, 851 F.3d at

1121-58 (Rosenbaum, J., dissenting), § 2255(e), known as the saving clause, serves

as a failsafe mechanism to protect § 2255 from unconstitutionality by providing a

substitute remedy for habeas corpus relief that § 2255 otherwise precludes but the

Suspension Clause may require. Retroactively applicable new rules of statutory

law, such as the one articulated in Rehaif, present claims that fall into that category.

       To understand why, we need look no further than Bailey v. United States, 516

U.S. 137 (1995), and Bousley v. United States, 523 U.S. 614 (1998). In Bailey, the

Supreme Court construed 18 U.S.C. § 924(c)(1), which, at the time, imposed a prison

term upon a person who “during and in relation to any . . . drug trafficking crime .

. . uses or carries a firearm,” to require evidence that the defendant actively employed

the firearm during and in relation to the predicate crime. Bailey, 516 U.S. at 142-

43. Previously, some courts had interpreted the provision to require evidence of

only accessibility and proximity of a firearm during a drug-trafficking crime, not of




second or successive motion to vacate, set aside, or correct factual sentence, so I do not discuss it
further.
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active employment.

      Based on Bailey’s reading of § 924(c)(1), the Supreme Court identified Bailey

as a “decision[] of this Court holding that a substantive federal criminal statute does

not reach certain conduct” and determined that pre-Bailey applications of § 924(c)(1)

“necessarily carr[ied] a significant risk that a defendant st[ood] convicted of an act

that the law does not make criminal.” Bousley, 523 U.S. at 620 (cleaned up). That,

the Supreme Court explained, presented a constitutional problem, “[f]or under our

federal system it is only Congress, and not the courts, which can make conduct

criminal.”   Id. at 620-21.     So, the Supreme Court summarized, “it would be

inconsistent with the doctrinal underpinnings of habeas review to preclude [a

prisoner] from relying on our decision in Bailey in support of his claim that his guilty

plea [to § 924(c)(1)] was constitutionally invalid. Id. at 621. As a result, the

Supreme Court determined that Bailey’s new rule of statutory law was necessarily

retroactively applicable under Teague v. Lane’s 2 conclusion establishing the

retroactivity of new substantive rules. See id. at 620-21.

      Precisely the same is true of a Rehaif claim. In Rehaif, the Supreme Court

considered what the government must prove in a prosecution under 18 U.S.C. §§

922(g) and 924(a)(2). As relevant here, § 924(a)(2) provides that “[w]hoever



      2 489 U.S. 288 (1989).
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knowingly violates” § 922(g) “shall be” subject to penalties of up to 10 years’

imprisonment. Section 922(g) then states it “shall be unlawful for any person . . . ,

being an alien . . . illegally or unlawfully in the United States,” to “possess in or

affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Before the

Supreme Court issued Rehaif, some courts, including ours, construed these

provisions to mean that the government did not have to prove that the defendant

knew he was in the country illegally in order to obtain a conviction. But in Rehaif,

the Supreme Court concluded that the statutory text requires the government to prove

that the defendant knew he was unlawfully in the country in order to convict the

defendant under these provisions. Rehaif, 139 S. Ct. at 2195-96.

      Rehaif announced the same type of new rule of statutory law that Bailey did.

In both cases, the Supreme Court issued a “decision[] . . . holding that a substantive

federal criminal statute does not reach certain conduct” that, before the applicable

Supreme Court decision, courts routinely applied to reach the non-covered conduct.

See Bousley, 523 U.S. at 620. As a result, as the Court determined in Bousley with

respect to pre-Bailey applications of § 924(c)(1), pre-Rehaif applications of §§

922(g) and 924(a)(2) “necessarily carr[y] a significant risk that a defendant stands

convicted of an act that the law does not make criminal.” Id. And “it would be

[just as] inconsistent with the doctrinal underpinnings of habeas review to preclude

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[a prisoner] from relying on [the Supreme Court’s] decision in [Rehaif] in support

of his claim that his [conviction under §§ 922(g) and 924(a)(2)] was constitutionally

invalid,” id. at 621, as the Supreme Court determined it would be to preclude a

prisoner from invoking Bailey to support his habeas claim that his conviction under

§ 924(c) was invalid.

      In short, Bailey and Bousley demand the conclusion that Rehaif announced a

new rule of substantive law that is necessarily retroactively applicable under Teague.

See also Montgomery v. Louisiana, 136 S. Ct. 718, 729-31 (2016) (“substantive rules

must have retroactive effect regardless of when the defendant’s conviction became

final”). That means a prisoner with a Rehaif claim must be able to seek habeas

relief. And because a prisoner has no way under § 2255(h) to bring a second or

successive claim based on Rehaif, he must be able to do so under § 2255(e), or §

2255 would be in serious jeopardy of violating the Suspension Clause.             See

McCarthan, 851 F.3d at 1121-58 (Rosenbaum, J., dissenting); see also Bruce v.

Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017) (explaining that new rules of

statutory law are necessarily retroactively applicable to habeas claims under 28

U.S.C. § 2255(e)).

      Yet when a prisoner raises a Rehaif claim to set aside his conviction and

asserts that the government failed to allege and prove that he had knowledge of the

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requisite elements of the crime charged, McCarthan prevents us from complying

with the constitutional requirement that such a claim be cognizable in habeas on a

second or successive petition where the petitioner has not previously had a

meaningful opportunity to bring such a claim. I therefore continue to believe

McCarthan is wrong. But since it unquestionably binds us here, I regretfully concur

in the order denying authorization to present a second or successive claim.




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