United States v. 2020-12-14 | 20-70785 | GERALD TATE V. USA | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERALD LESLIE TATE,
Applicant,

v.

UNITED STATES OF AMERICA,
Respondent.
No. 20-70785

OPINION

Application to File Second or Successive Motion
Under 28 U.S.C. § 2255

Submitted November 19, 2020
*

San Francisco, California

Filed December 14, 2020

Before: Jacqueline H. Nguyen, Andrew D. Hurwitz, and
Daniel A. Bress, Circuit Judges.

Per Curiam Opinion

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

2 TATE V. UNITED STATES

SUMMARY
**

28 U.S.C. § 2255

The panel denied Gerald Leslie Tate’s request for
authorization to file a second or successive motion under
28 U.S.C. § 2255 to vacate his 2015 conviction and sentence
for being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Tate sought relief based on the Supreme Court’s decision
in Rehaif v. United States, 139 S. Ct. 2191 (2019), which
held that a conviction under 18 U.S.C. § 922(g), which
prohibits firearm possession for certain categories of
individuals, and § 924(a)(2), which imposes penalties on
those who “knowingly violate” § 922(g), requires proof that
the defendant “knew he belonged to the relevant category of
persons barred from possessing a firearm.”

The panel denied certification because Tate has not made
a prima facie showing that Rehaif announced a new
constitutional rule, as required by 28 U.S.C.
§ 2244(b)(2)(A), (b)(3)(C). The panel explained that in
announcing the scope of “knowingly” in § 924(a)(2), Rehaif
announced a statutory, rather than a constitutional, rule.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

TATE V. UNITED STATES 3

COUNSEL

Rene L. Valladares, Federal Public Defender; Amy B.
Cleary, Assistant Federal Public Defender; Benjamin F. J.
Nemec, Attorney; Las Vegas, Nevada; for Applicant.

Nicholas A. Trutanich, United States Attorney; Elizabeth O.
White, Appellate Chief; United States Attorney’s Office,
Reno, Nevada; for Respondent.

OPINION
PER CURIAM:
Gerald Leslie Tate requests authorization to file a second
or successive motion to vacate his conviction and sentence
under 28 U.S.C. § 2255 based on the Supreme Court’s
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).
We deny his application.
I.
On February 4, 2015, Tate pleaded guilty to being a felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). We affirmed the conviction,
United States v. Tate, 659 F. App’x 386 (9th Cir. 2016), and
the Supreme Court denied certiorari, United States v. Tate,
137 S. Ct. 1333 (2017). Tate then filed a § 2255 motion,
which the district court denied.
Several months after the district court denied Tate’s
motion, the Supreme Court held that a conviction under
18 U.S.C. § 922(g), which prohibits firearm possession for
certain categories of individuals, and § 924(a)(2), which
imposes penalties on those who “knowingly violate”

4 TATE V. UNITED STATES

§ 922(g), requires proof that the defendant “knew he
belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif, 139 S. Ct. at 2200. Tate then
filed a second § 2255 motion, arguing that his indictment,
plea, and conviction were constitutionally defective under
Rehaif. The district court stayed the motion, and Tate filed
the instant application for authorization to file a second
§ 2255 motion.
II.
Before the district court can entertain a second or
successive § 2255 motion, the appropriate court of appeals
must certify the motion as provided in 28 U.S.C. § 2244. See
28 U.S.C. § 2255(h). We may certify a second or successive
motion in two circumstances. See id. § 2244(b)(2). As
relevant here, certification is proper if the applicant makes a
prima facie showing “that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” Id. § 2244(b)(2)(A), (b)(3)(C).
III.
Tate has not made a prima facie showing that Rehaif
announced a new constitutional rule.
In Rehaif, the Supreme Court interpreted the scope of the
word “knowingly” in 18 U.S.C. § 924(a)(2). 139 S. Ct.
2191. Under 18 U.S.C. § 922(g), it is unlawful for certain
categories of individuals to possess firearms. Pursuant to
§ 924(a)(2), those who “knowingly” violate § 922(g) are
subject to fines or imprisonment for ten years. The question
the Court addressed in Rehaif was whether the term
“knowingly” required not only proof that a criminal
defendant knew he possessed a firearm, but also proof the

TATE V. UNITED STATES 5

defendant knew he fell into a category of individuals
prohibited from possessing firearms. 139 S. Ct. at 2194.
In interpreting statutes, we strive to “give effect to the
intent of Congress.” United States v. Am. Trucking Ass’ns,
310 U.S. 534, 542 (1940). In Rehaif, the Supreme Court did
just that when interpreting § 924(a)(2), framing its inquiry as
“a question of congressional intent,” 139 S. Ct. at 2195, and
looking to the presumption in favor of scienter, the statutory
text, and basic principles underlying criminal law to interpret
“knowingly.” Id. at 2195–97. Therefore, in announcing the
scope of “knowingly” in § 924(a)(2), Rehaif announced a
statutory, rather than a constitutional, rule.
1

Tate argues that Rehaif announced a new constitutional
rule because its holding derives from the Constitution’s
overarching principles of fundamental fairness and due
process. But Rehaif interpreted a statute and did not invoke
any constitutional provision or principle. Nor is Rehaif a
constitutional rule under Montgomery v. Louisiana,
136 S. Ct. 718 (2016), as Tate contends. Montgomery held
that Miller v. Alabama, 567 U.S. 460 (2012), which
prohibited mandatory life sentences without parole for
juveniles, was retroactive on collateral review because it
announced a substantive rule of constitutional law. 136 S.
Ct. at 736. Assuming without deciding that Rehaif also
announces a rule that is substantive in nature, Rehaif still
does not announce “a new rule of constitutional law” for
purposes of filing a second or successive § 2255 motion.

1
Our sister circuits have likewise held that Rehaif did not announce
a constitutional rule and have therefore disallowed second or successive
§ 2255 motions premised on Rehaif. See Mata v. United States, 969 F.3d
91, 93 (2d Cir. 2020); In re Sampson, 9 54 F.3d 159, 161 (3d Cir. 2020);
Khamisi-El v. United States, 800 F. App’x 344, 349 (6th Cir. 2020); In
re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019).

6 TATE V. UNITED STATES

28 U.S.C. § § 2244(b)(2)(A), (b)(3)(C). Miller’s rule was
constitutional not because it was substantive, but because it
was grounded in the Eighth Amendment’s prohibition on
cruel and unusual punishment. 136 S. Ct. at 732–33. Rehaif,
unlike Miller, was based on the Supreme Court’s
interpretation of a statute.
DENIED.