US v. Waters: In 2015, Waters was convicted of being a felon in possession of a firearm and sentenced to 120 months in prison. In 2019, he filed a pro se 2255 motion seeking to vacate his conviction shortly before the Supreme Court decided Rehaif. Once that was decided, he moved for the appointment of counsel to assist with a Rehaif-based claim. The district court denied that motion, as well as the 2255 motion as a whole, holding that Rehaif did not apply to Waters’ offense and that there was “no indication” the Supreme Court intended to make Rehaif retroactive.
On appeal, the Fourth Circuit reversed the denial of Waters’ 2255 motion. First, the court made clear that Rehaif applied not just to the immigration-status offense in that case, but any status-based offense under 18 USC 922(g), including being a felon in possession of a firearm. Second, the court concluded that Rehaif was retroactive, as it “narrowed the scope of a criminal statute by interpreting its terms” and “altered the range of conduct or the class of persons that the law punishes.” At that point, the majority states that on “remand, the district court should consider any issues related to procedural default and prejudice in addition to the merits of Waters’ claim” and suggests prejudice may be a hurdle Waters cannot clear.
Judge Wynn concurred in the judgment, but took the majority to task for bringing up procedural default, noting that not only had the Government not done so in the district court, but had not raised the issue before the Fourth Circuit. Cataloging the number of times the court has held defendants strictly responsible for not raising issues in similar situations, he concluded “that’s not fair.”
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