R. Brooke Jackson, United States District Judge

Kurt J. Bohn, Justin Bishop Grewell, U.S. Attorney's Office, Denver, CO, for Plaintiff.

ORDER GRANTING DEFENDANT'S 28 U.S.C. § 2255 MOTION

R. Brooke Jackson, United States District Judge

This matter is before the Court on movant Daniel Ray Dace's motion to vacate his conviction and sentence under 28 U.S.C. § 2255. ECF No. 52. For the reasons stated herein, the § 2255 motion is GRANTED.

I. BACKGROUND

On April 13, 2017 Daniel Ray Dace pled guilty to two counts of possession of a firearm by a previously convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) ("Count One" and "Count Four"), one count of possession of a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(a) ("Count Two"), and one count of possession of a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Three"). ECF No. 26 at 1.

On June 29, 2017 I sentenced Mr. Dace to concurrent terms of 108 months’ imprisonment on Counts One, Two, and Four, to run consecutively to a term of 60 months’ imprisonment on Count Three. ECF No. 47. Mr. Dace appealed the substantive reasonableness of his combined sentence of 14 years’ imprisonment. ECF No. 40. The Court of Appeals for the Tenth Circuit affirmed the sentence on January 12, 2018. See United States v. Dace , 720 F. App'x 961, 962 (10th Cir. 2018). Mr. Dace did not file a petition for a writ of certiorari, and his conviction and sentence became final on May 6, 2018.

On June 21, 2019 the Supreme Court issued its holding in Rehaif v. United States , which narrowed the scope of § 922(g) and 924(a)(2). See ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). On October 24, 2019 Mr. Dace filed this motion to vacate his conviction and sentence under 28 U.S.C. § 2255. ECF No. 52 at 1. He argues that his plea of guilty to two counts of possessing a firearm as a convicted felon under § 922(g)(1) is constitutionally invalid in light of Rehaif . Id. The government did not respond.

II. ANALYSIS

A. Merits

The provisions of § 2255 allow a prisoner in federal custody to collaterally attack a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. § 2255(a). A § 2255 motion is not a substitute for a direct appeal. See United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994).

Mr. Dace's § 2255 motion argues that his guilty plea is constitutionally invalid in light of the Supreme Court's recent decision in Rehaif v. United States . ECF No. 52 at 1. "A plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’ " Bousley v. United States , 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ). An intelligent plea requires "real notice [to the defendant] of the true nature of the charge against him." Id. (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941) ).

Here, Mr. Dace argues that Rehaif narrowed the scope of § 922(g) and 924(a)(2), two of the four counts to which he pled guilty. ECF No. 52 at 1. Section 922(g)(1) prohibits felons—persons convicted of "a crime punishable by imprisonment for a term exceeding one year"—from possessing a gun. § 922(g)(1). Section 924(a)(2) provides for imprisonment of up to ten years for anyone who "knowingly violates" § 922(g). § 924(a)(2). Under Tenth Circuit law prior to Rehaif , a defendant's knowledge of his status as a felon was not a required element of § 922(g). See United States v. Capps , 77 F.3d 350, 352–54 (10th Cir. 1996). The government needed only prove that the defendant "knew" that he possessed a firearm. See id. In Rehaif , however, the Supreme Court held that the government "must show that the defendant knew he possessed the firearm and also that he knew he had the relevant status when he possessed it." ––– U.S. at ––––, 139 S. Ct. at 2194, 2198 (requiring the government the prove that the defendant knew of his status as an alien "illegally or unlawfully in the United States").

When Mr. Dace pled guilty to violating § 922(g), he was not told that the crime required proof that he knew he had been convicted of a crime punishable by more than one year at the time he possessed the weapon. The record, including his plea agreement and the change of plea hearing, contains no indication that Mr. Dace knew of this element of the crime. ECF Nos. 26, 46. Mr. Dace had received a deferred sentence for his only felony conviction and never served any time in prison. ECF No. 52 at 4. Likewise, in Rehaif the defendant had been sentenced to probation and the Supreme Court found that he therefore may not have known that his offense was punishable by more than one year in prison. See ––– U.S. at ––––, 139 S. Ct. at 2198. This is in contrast to cases in which the court found that the record did support defendants’ knowledge of his status based on the defendants’ stipulation to being a felon or the defendants’ served prison time. See United States v. Daniels , 804 F. App'x 944, 946 (10th Cir. 2020) (finding that the record supported a conclusion that the defendant knew he had been convicted of crimes with a prison term of more than one year because he had stipulated as such and because he had served nearly ten years of a twelve-year prison sentence and over one year on an eight-year prison sentence); United States v. Fisher , 796 F. App'x 504, 510 (10th Cir. 2019) (unpublished) (discussing how difficult it would be for a defendant to show plain error as to knowledge-of-status under § 922(g)(1) when the defendant had spent "over 30 years of his life in prison," and some of his past charges were felonies); United States v. Young , No. CR 17-0694 JB, 2020 WL 33086, at *11 (D.N.M. Jan. 2, 2020) (collecting cases indicating that "Courts of Appeal are willing to uphold pre- Rehaif v. United States convictions under plain and harmless error review when the § 922(g)(1) defendant has a history of lengthy sentences").

Nor is there any basis to presume that Mr. Dace's lawyer informed him of this element. See Hicks v. Franklin , 546 F.3d 1279, 1284 (10th Cir. 2008) (holding that such a presumption is unwarranted unless there is "some factual basis in the record to support it").

Mr. Dace's guilty plea was not intelligent under Rehaif because it did not provide notice to him of the true nature of the charge against him. See Bousley , 523 U.S. at 619, 118 S.Ct. 1604. Thus under Rehaif , Mr. Dace's guilty plea is constitutionally invalid. See id. at 618–19, 118 S.Ct. 1604.

B. Timeliness

I also consider whether Mr. Dace's § 2255 motion is timely. Mr. Dace does not discuss timeliness. The Supreme Court has held that federal district courts "are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). In an unpublished, nonbinding decision the Tenth Circuit extended this rule to federal prisoners’ § 2255 habeas petitions. See United States v. DeClerck , 252 F. App'x 220, 224 (10th Cir. 2007) (unpublished). Although I need not raise timeliness, I do so here because the issues raised in the timeliness analysis are important, and because I disagree with several other federal courts’ timeliness analyses of Rehaif .

"A motion by a federal prisoner for postconviction relief under § 2255 is subject to a one-year period of limitation." See Clay v. United States, 537 U.S. 522, 524, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (citing § 2255(f) ). That limitations period runs from the latest of four dates, though only the following two are relevant here: (1) the date on which the judgment of conviction became final or (2) "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2255(f)(1), (f)(3).

Briefly, Mr. Dace cannot rely on § 2255(f)(1) because he did not file within one year of the date on which his judgment of conviction became final. When, as here, a federal prisoner did not file a petition for a writ of certiorari, the judgment of conviction becomes final when the time for filing a petition expires. See Clay , 537 U.S. at 525, 123 S.Ct. 1072. The time for filing a petition for certiorari expires ninety days after the appellate court issues its mandate. See Sup. Ct. R. 13.3; United States v. Burch , 202 F.3d 1274, 1279 (10th Cir. 2000). Here, the Tenth Circuit issued its mandate affirming Mr. Dace's conviction on February 5, 2018. ECF No. 50. Thus Mr. Dace's conviction became final on May 6, 2018. Because Mr. Dace did not file his § 2255 motion until over one year later on October 25, 2019, his motion is not timely under § 2255(f)(1).

Under § 2255(f)(3) a motion is timely if filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2255(f)(3). Here, although Mr. Dace does not expressly discuss timeliness, his § 2255 motion is premised on the Supreme Court's opinion in Rehaif . Rehaif was decided on June 21, 2019 and Mr. Dace filed his § 2255 motion within one year on October 25, 2019. Thus Mr. Dace's § 2255 motion is timely if Rehaif recognizes a new right that applies retroactively to cases on collateral review. See § 2255(f)(3).

The Supreme Court has not expressly stated whether Rehaif recognizes a new right or whether that right is retroactive. See generally Rehaif , ––– U.S. at ––––, 139 S. Ct. 2191. When "the Supreme Court has not said whether a right is new or retroactive, we look for guidance to Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)." United States v. Hopkins , 920 F.3d 690, 698 (10th Cir. 2019) (citing United States v. Chang Hong , 671 F.3d 1147, 1150–51 (10th Cir. 2011) ). The Tenth Circuit has confirmed that Teague applies in evaluating timeliness under § 2255(f)(3). See Chang Hong , 671 F.3d at 1150–51 & n.4 (citing Daniels v. United States, 254 F.3d 1180, 1194 (10th Cir. 2001) (en banc)). Using Teague , I address both whether the Supreme Court in Rehaif recognized a new right, and whether that right is retroactive.

First, under Teague "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 , 489 U.S. at 301, 109 S.Ct. 1060. A result is not dictated by existing precedent unless it would have been "apparent to all reasonable jurists." Chaidez v. United States , 568 U.S. 342, 347, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) ). Additionally, the rule must be more than "merely an application" of an existing right or principle. Teague , 489 U.S. at 307, 109 S.Ct. 1060 (quoting Yates v. Aiken , 484 U.S. 211, 216–17, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988) ).

Rehaif does announce a "new" rule. Precedent at the time that Mr. Dace's conviction became final expressly dictated the opposite result: every Court of Appeals to address the issue had ruled to the contrary. See Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2201 (Alito, J., dissenting) ("The Court casually overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question."). Nor was Rehaif "merely an application" of an existing right. See Teague , 489 U.S. at 307, 109 S.Ct. 1060. The Supreme Court engaged in novel statutory interpretation to determine that under § 922(g) the government must prove that a defendant knew of his status at the time he possessed the gun. See Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2196.

Second, in order to find that Mr. Dace timely filed under § 2255(f)(3) the new right recognized in Rehaif must have been made retroactively applicable to cases on collateral review. See § 2255(f)(3). Teague holds that a new rule announced after a defendant's conviction becomes final generally may not provide the basis for federal habeas relief. See Graham v. Collins , 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (citing Teague , 489 U.S. 288, 109 S.Ct. 1060 ). However, there are two narrow exceptions to this rule.

The first exception is for new substantive rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Caspari v. Bohlen , 510 U.S. 383, 396, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (quoting Teague, 489 U.S. at 307, 109 S.Ct. 1060 ) (internal quotation marks omitted). "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Schriro v. Summerlin , 542 U.S. 348, 351–52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citing Bousley, 523 U.S. at 620–621, 118 S.Ct. 1604 ; Saffle v. Parks, 494 U.S. 484, 494–95, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ; Teague, 489 U.S. at 311, 109 S.Ct. 1060 ).

The second exception is for " ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060 ). "This class of rules is extremely narrow, and it is unlikely that any ... ha[s] yet to emerge." Schriro , 542 U.S. at 352, 124 S.Ct. 2519 (quoting Tyler v. Cain, 533 U.S. 656, 667 n.7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ) (internal quotations omitted).

Regarding the difference between substantive and procedural rules, the Supreme Court has held:

A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. See Bousley, [523 U.S.] at 620–21 (rule "hold[s] that a ... statute does not reach certain conduct" or "make[s] conduct criminal"); Saffle, [494 U.S.] at 495 (rule "decriminalize[s] a class of conduct [or] prohibit[s] the imposition of ... punishment on a particular class of persons"). In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural. See Bousley , [523 U.S.] at 620 .

Schriro , 542 U.S. at 353, 124 S.Ct. 2519. Further, "[a] decision that modifies the elements of an offense is normally substantive rather than procedural." Id. at 354, 124 S.Ct. 2519.

The Supreme Court explained in Bousley that separation of powers motivates the differential treatment of substantive and procedural new rules. See Bousley , 523 U.S. at 620–21, 118 S.Ct. 1604. Only Congress, not the courts, may criminalize conduct. See id. When the Supreme Court recognizes a new substantive rule, it is recognizing that the lower courts have, in violation of the separation of powers, construed a statute too broadly so as to criminalize conduct that Congress itself never criminalized. See id. ; see also In re Wright , 942 F.3d 1063, 1066–67 (11th Cir. 2019) (Rosenbaum, J., concurring).

I find that Rehaif created a new substantive rule because it altered the class of persons that § 922(g) may punish. Rehaif "narrow[ed] the scope of [ § 922(g) ] by interpreting its terms." Schriro , 542 U.S. at 351–52, 124 S.Ct. 2519. Specifically, Rehaif prohibited the state from using § 922(g) to punish a defendant who did not "know" that he was a felon. See Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2194. Indeed, Mr. Dace argues that because he never served any prison time, the government may not have been able to prove that he "knew" he had been convicted of a crime "punishable by imprisonment for a term exceeding one year." In punishing Mr. Dace without proving that he knew of his status as a felon, this Court unintentionally punished an individual whom Congress never intended to punish under § 922(g). See Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2191–97 (relying on an analysis of congressional intent); Bousley , 523 U.S. at 620–21, 118 S.Ct. 1604.

This is the same type of narrowing that the Supreme Court held to be substantive in Bousley , 523 U.S. at 616, 118 S.Ct. 1604. Bousley had pled guilty to "using" a firearm under § 924(c)(1). See id. While Bousley's appeal was pending, the Supreme Court held in Bailey v. United States , 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that § 924(c)(1) ’s "use" prong requires the government to show "active employment of the firearm." See Bousley , 523 U.S. at 616, 118 S.Ct. 1604. The Supreme Court subsequently agreed that Bousley's guilty plea would be constitutionally invalid if Bailey had altered the essential elements of the crime with which he was charged after his conviction. See id. at 618–19, 118 S.Ct. 1604.

In so deciding, I break with several other federal courts that have addressed whether Rehaif applies retroactively under § 2255. For example, one recent district court held: "[ Rehaif ] is not a substantive rule: it does not place certain conduct outside the power of the state to punish. Instead it is a procedural rule dictating that the Government must prove a defendant acted knowingly when he or she violated § 922(g)." United States v. Mock , No. 3:18-CR-136, 2019 WL 6324625, at *6 (S.D. Ohio Nov. 26, 2019), report and recommendation adopted, No. 3:18-CR-136, 2019 WL 6893772 (S.D. Ohio Dec. 18, 2019). At least one Court of Appeals has expressly held that the Supreme Court did not make Rehaif retroactive, but it did so summarily without explaining why. See In re Palacios , 931 F.3d 1314, 1315 (11th Cir. 2019) ("Moreover, even if Rehaif had announced a new rule of constitutional law [as required for second or successive habeas petitions under § 2255(h) ] ..., it was not made retroactive to cases on collateral review by the Supreme Court.") (citing Tyler v. Cain , 533 U.S. 656, 661–66, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ).

I disagree. Rehaif is not a procedural rule regulating the "manner of determining the defendant's culpability." Schriro , 542 U.S. at 353, 124 S.Ct. 2519 (emphasis omitted). Rather, Rehaif narrowed the substantive scope of the conduct criminalized under the statute by applying the "knowing" mens rea element to the defendant's felon status. See Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2194. Rehaif therefore "modifie[d] the elements" of § 922(g). Schriro , 542 U.S. at 354, 124 S.Ct. 2519 ("A decision that modifies the elements of an offense is normally substantive rather than procedural."); see also Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2194. The fact that the government must prove this additional element does not change the process by which an individual's culpability is determined under the statute, but rather what class of persons is culpable at all under the statute. Indeed, the Supreme Court noted in Rehaif that "the defendant's status is the ‘crucial element’ separating innocent from wrongful conduct." Rehaif , ––– U.S. at ––––, 139 S. Ct. at 2197 (quoting United States v. X-Citement Video, Inc. , 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) ) (considering congressional intent and the "basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called ‘a vicious will’ " (quoting 4 W. Blackstone, Commentaries on the Laws of England 21 (1769))).

I find that the Supreme Court in Rehaif announced a new rule, and that new rule applies retroactively to cases on collateral review because it is a substantive rather than procedural rule. Accordingly, Mr. Dace's § 2255 petition is timely under § 2255(f)(3).

ORDER

Movant's § 2255 motion, ECF No. 52, is GRANTED. Movant's conviction for violating § 922(g)(1) is vacated. The case will be placed back on this Court's docket for resentencing.