United States v. Malone, 1:14-cr-00438

Background

Malone pleaded guilty to one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced to 120 months.
The Sixth Circuit reversed after Johnson, Malone was resentenced (upward variance) to 120 months on remand, and that sentence was affirmed.
Malone filed a timely § 2255 motion alleging ineffective assistance and other constitutional claims; the district court denied relief.
The Sixth Circuit granted a certificate of appealability limited to Malone’s claim that appellate counsel was ineffective for not challenging the use of an Ohio drug offense as a sentencing-predicate under USSG § 2K2.1; that appeal remains pending.
After the Sixth Circuit granted the COA, the Supreme Court decided Rehaif (requiring the government to prove the defendant knew his prohibited status), and Malone moved to amend his § 2255 (via Rule 60(b)) to invoke Rehaif.
The district court held Malone’s filing to be a successive habeas application (filed after notice of appeal) and, alternatively, denied Rule 60(b)(6) relief because Rehaif did not justify extraordinary relief and is inapplicable to Malone’s guilty plea and facts.

Issues

Issue	Malone's Argument	Government/Court's Argument	Held
Whether Malone’s post-appeal filing is a successive habeas petition or a true Rule 60(b) motion	The filing is an amendment to his original § 2255, not a successive petition	The filing advances a new Rehaif-based ground and was filed after Malone appealed, so it is successive and requires Sixth Circuit authorization	The court held the motion is successive and denied for lack of jurisdiction
Whether Clark v. United States allows Malone’s amendment despite his appeal	Clark permits amendment when filed before final adjudication	Clark is limited to motions filed before a notice of appeal; Malone filed after appealing, so Clark does not apply (Moreland controls)	Clark inapplicable; motion treated as successive
Whether Rehaif constitutes an extraordinary change of law justifying Rule 60(b)(6) relief	Rehaif is a dispositive change affecting scienter for § 922 convictions and warrants relief while Malone’s appeal is pending	A change in decisional law alone is usually insufficient; Rule 60(b)(6) requires extraordinary circumstances and the change must apply to the movant	Denied: Rehaif does not justify Rule 60(b)(6) relief in Malone’s case
Whether Rehaif applies to guilty pleas or supports ineffective-assistance claims here	Malone argues the indictment lacked scienter as to his felon status, so Rehaif undermines his conviction	Rehaif concerns convictions at trial; guilty pleas generally waive non-jurisdictional defects (Broce) and Malone had prior felony convictions and an earlier federal felon-in-possession conviction; counsel cannot be faulted for not predicting Rehaif	Denied: Rehaif is inapplicable to Malone’s guilty plea and does not support an ineffective-assistance claim

Key Cases Cited

Rehaif v. United States, 139 S. Ct. 2191 (2019) (defendant must know both possession and the relevant prohibited status to be convicted under § 922)
Johnson v. United States, 135 S. Ct. 2551 (2015) (textual holding that impacted sentence enhancements and prompted earlier relief in Malone’s case)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (distinguishes true Rule 60(b) motions from successive habeas petitions)
Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016) (district court lacks jurisdiction over successive habeas petitions; reconciles Clark and Post)
Franklin v. Jenkins, 839 F.3d 465 (6th Cir. 2016) (a Rule 60(b) motion is successive when it seeks to advance or vindicate habeas claims)
Clark v. United States, 764 F.3d 653 (6th Cir. 2014) (motion-to-amend language limited to motions filed before filing of a notice of appeal)
Broce v. United States, 488 U.S. 563 (1989) (a guilty plea and resulting conviction encompass necessary factual and legal elements and generally preclude later challenges to nonjurisdictional defects)
Snider v. United States, 908 F.3d 183 (6th Cir. 2018) (counsel is not ineffective for failing to predict future changes in the law)