United States v. DAYUnited States v. DAY
(September 1, 2026)
Pending before the Court are Defendant Donte Day‘s [36] pro se Motion to Revive his Motion to Vacate his Conviction under 28 U.S.C. Section 2255, [38] pro se Motion for Appointment of Counsel, and [39] pro se Motion for a Sentence Reduction pursuant to Sentencing Guideline Amendments 819 and/or 821.1 Defendant Donte Day (hereinafter “Defendant“) requests reinstatement of his Section 2255 motion, which challenges the constitutionality of
The Court declines to hold a hearing on Defendant‘s Motion to Reinstate his Section 2255 Petition. “A judge need not conduct an evidentiary hearing before denying a petition for relief under §2255 when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.‘” United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting
The Court begins its analysis of Defendant‘s Motions by reviewing background
I. BACKGROUND
A. Relevant Procedural History
On April 6, 2002, Defendant entered a plea of guilty to one count of Felon in Possession of a Firearm, in violation of
On June 24, 2020, Defendant – through his then-counsel, the Office of the Federal Public Defender – filed his [27] motion to vacate his conviction pursuant to
B. Defendant‘s Pending Motions
Several years later, Defendant proffered his [36] pro se letter – which was accepted for
II. LEGAL STANDARDS
A. Standard for Habeas Claims
Under
1. Habeas Claims in Plea Cases
“[T]he concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784 (1979). “The plea process brings to the criminal justice system a stability and a certainty that must not be undermined by the prospect of collateral challenges in cases not only where witnesses and evidence have disappeared, but also in cases where witnesses and evidence were not presented in the first place.” Premo v. Moore, 562 U.S. 115, 132 (2011).
While a constitutional error in the plea colloquy entitles a defendant to relief “unless the error was harmless,” United States v. Dewalt, 92 F.3d 1209, 1213 (D.C. Cir. 1996), “in order to prevail under § 2255, a defendant must show that the plea proceeding was tainted either by ‘a fundamental defect which inherently results in a complete miscarriage of justice’ or by ‘an omission inconsistent with the rudimentary demands of fair procedure.‘” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). In a § 2255 motion that seeks to vacate a conviction that resulted from a guilty plea, a defendant fails to satisfy his “burden of demonstrating a manifest injustice” if he does not demonstrate that “he is innocent or that he would not have pleaded guilty
a. Requirements for Section 2255 Claims
i. One Year Limitation
A first requirement is that Section 2255 motions must be filed within one year of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
ii. Claims Generally Must be Raised on Direct Appeal
A second requirement is that a defendant raise all available claims on direct appeal. With the exception of claims for ineffective assistance of counsel, a defendant who fails to raise a claim on direct appeal – when he was or should have been aware of the claim – procedurally defaults on the claim and is prohibited from raising it in a collateral attack. Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 622 (1998) (same).
To overcome time and procedural limitations, a defendant must demonstrate “cause” for his failure to raise the claim earlier and “prejudice” because of his failure. Bousley, 523 U.S. at 622. To demonstrate “cause,” a defendant must prove that some “objective factor external to the
A limited exception to the time and procedural limitations exists also for a “narrow class of . . . extraordinary instances [in which] a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey, 499 U.S. at 494. When applying that exception, “‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. The evidence that a defendant is actually innocent must be “so strong that a court cannot have confidence in the outcome” of the case. Schlup v. Delo, 513 U.S. 298, 316 (1995). “Because such evidence is obviously unavailable in the vast majority of case, claims of actual innocence are rarely successful.” Id. at 324.
iii. No Second or Successive Section 2255 Motions
A third requirement is that a defendant raise all available claims in a single Section 2255 motion, as district courts lack jurisdiction to consider a second or successive Section 2255 motion. See
III. ANALYSIS OF DEFENDANT‘S CLAIMS
A. Revival of Section 2255 Motion based on Rehaif (“Defendant‘s Rehaif Claim“)
The Court begins by addressing whether there is any merit to Defendant‘s claim based on Rehaif, in the context of the ruling in that case, before turning to the time and procedural deficiencies of Defendant‘s Rehaif claim.2
1. Defendant‘s Rehaif Claim is Without Merit
In Rehaif, the Supreme Court held that to convict a defendant under
In Greer, the Supreme Court addressed a Rehaif error raised on direct appeal, rather than on collateral review, and concluded that “[i]n felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representations on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” 583 U.S. at 514. When the defendant does make that argument, “the court must determine whether the defendant has carried the burden of showing a ‘reasonable probability’ that the
Considering the record in this case and the applicable caselaw, the Court concludes that Defendant‘s Rehaif claim that the Government did not prove that he knew he was a “felon in possession” is without merit. Nor is there a reasonable probability that if Defendant had known of this knowledge-in-status requirement, the outcome of the district court proceeding would have differed. See generally United States v. Bates, 960 F. 3d 1278, 1296 (11th Cir. 2020) (“Had [defendant] known that the government needed to prove that he knew he was a felon, the probability is virtually zero that it would have changed his decision to plead guilty.“). Accordingly, there is no reason to permit the revival of Defendant‘s Section 2255 motion based on reinstatement of his Rehaif claim. Furthermore, the Rehaif claim was not timely filed and it is procedurally barred, as discussed below.
2. Defendant‘s Rehaif Claim is Time Barred
In this case, the latest for Defendant to file his Rehaif claim would be one year from “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.”4
In his Omnibus Motion, Defendant asserts that his current Rehaif claim should relate back to his prior Section 2255 motion. Def.‘s Omnibus Mot., ECF No. 39, at 2. But, as noted, Defendant voluntarily dismissed his previous motion in 2021, and the relation-back doctrine does not allow dismissed claims to be “reinstated” after expiration of the limitation period. The Government explains that an amendment of a pleading relates back to the date of the original filing under specified circumstances. Govt. Opp‘n, ECF No. 44, at 11 (citing
3. Defendant‘s Rehaif Claim is Procedurally Defaulted and He Does Not Show Cause and Prejudice or Claim Actual Innocence
Defendant did not raise on appeal the claim that his guilty plea was defective due to lack of notification of the knowledge-of-status requirement for
In this case, Defendant does not acknowledge that he procedurally defaulted on his claim nor does he try to establish cause and prejudice to excuse such default or claim actual innocence.6 Furthermore, the Government contends that Defendant “cannot establish ‘cause’ on grounds that his Rehaif challenge was either foreclosed by existing precedent or so novel that he had no reasonable basis to raise it on appeal.” Govt. Opp‘n, ECF No. 44, at 15. This is because “[n]umerous district courts . . . have concluded that a § 2255 claim asserting a Rehaif challenge to a guilty plea does not satisfy the ‘novelty’ exception.” Id. (string citing cases).
Similarly, Defendant cannot show the requisite prejudice, i.e., that the error alleged “worked to his actual and substantial disadvantage” resulting in “error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); see also Watkins v. United States, 18CR379, 2023 WL 2753240, at *6 (M.D.N.C. Jan. 20, 2023) (”Greer articulated the threshold to show prejudice for [a] Rehaif error in a direct appeal under the plain-error standard. . . . [T]he actual prejudice standard for collateral attacks is a significantly higher hurdle than would exist on direct appeal.“) (emphasis in original) (quotation marks and citation omitted). In this case, Defendant would have to show that “but for the Rehaif error, he would not
In the instant case, Defendant has not shown that he would not have entered a guilty plea if he had been instructed about Rehaif‘s knowledge-of-status element during his plea colloquy. And, the record in this case demonstrates that Defendant knew he had been previously convicted of a felony and that the Government could have proved such knowledge. Here, “Defendant was sentenced to between 5 and 15 years’ imprisonment for the prior conviction underlying the felon-on-possession conviction he now seeks to vacate, and he had served over eight years in prison for that crime prior to committing the instant offense.” Govt. Opp‘n, ECF No. 44, at 18 (emphasis in original); Gov. Ex. 2 Docket Report (1992 FEL 009975) at 1; Gov. Ex. 1, Sentence Computation Data at 6-7. Accordingly, a claim by Defendant that he did not know that he had a prior felony conviction would be unbelievable. Furthermore, less than two years after Defendant‘s release on that predicate conviction, and while on parole, he committed the instant offense. Govt. Ex. 1:
B. Revival of Section 2255 Motion based on Bruen (“Defendant‘s Bruen Claims“)
Defendant seeks also to revive his Section 2255 motion to vacate his conviction on grounds that the Supreme Court‘s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) renders the felon-in-possession statute set out at
1. The Supreme Court‘s Decisions in Bruen and Rahimi
In Bruen, the Supreme Court considered a challenge made by two “law-abiding, adult citizens” to New York‘s requirement that to obtain a license for concealed carry of a firearm outside one‘s home or business, for self-defense, one had to prove “proper cause exists” before issuance of such license. 597 U.S. at 12, 15-17. “Proper cause” was not statutorily defined, but it was applied as a “demanding” standard, id. at 12, and the Supreme Court found that the “proper cause” requirement violated the Second Amendment. The Supreme Court explained that “the test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment‘s text and historical understanding.” 597 U.S. at 26 (discussing the first step of a two-step test set out in District of Columbia v. Heller, 554 U.S. 570 (2008)).7 In applying the text-and-history test, in Bruen, the Supreme Court concluded first that the Second Amendment‘s text protected conduct governed by New York‘s “proper cause” requirement and reiterated Heller‘s holding that the text of the Second Amendment protected “the right of law-abiding, responsible citizens to use arms for self-defense.” Bruen, 597 U.S. at 26 (cleaned up). Furthermore, the Supreme Court held that this right applies even outside the home
Because the Second Amendment‘s “text” protected conduct governed by the “proper cause” requirement, the Supreme Court considered next whether New York could show that this requirement was “consistent with this Nation‘s historical tradition of firearm regulation.” Bruen, 597 U.S. at 33-34. The Supreme Court agreed that there was a historical basis for well-defined restrictions but concluded that there was not “a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense,” or of “limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at 38. Accordingly, the Supreme Court held that “[u]nder Heller‘s text-and-history standard, the proper-cause requirement [was] therefore unconstitutional.” Id. at 39.
In United States v. Rahimi, 602 U.S. 680 (2024), the Supreme Court further clarified its analysis in Second Amendment cases. That case involved a Second Amendment challenge to
2. The Effect of Bruen and Rahimi on the D.C. Circuit‘s Earlier Ruling in Medina
In Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir. 2019), the D.C. Circuit unequivocally held that, pursuant to the Supreme Court‘s guidance in Heller, “a felony conviction removes one from the scope of the Second Amendment.” In that case, defendant Medina – who had been convicted of making a false statement to a lending institution, in violation of
In Medina, the D.C. Circuit opined that:
On balance, the historical evidence and the Supreme Court‘s discussion of felon disarmament laws leads us to reject the argument that non-dangerous felons have a right to bear arms. As a practical matter, this makes good sense. Using an amorphous “dangerousness” standard to delineate the scope of the Second Amendment would require the government to make case-by-case predictive judgments before barring the possession of weapons by convicted criminals, illegal aliens, or perhaps even children. We do not think the public, in ratifying the Second Amendment, would have understood the right to be so expansive and limitless. At its core, the Amendment protects the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Whether a certain crime removes one from the category of “law-abiding and responsible,” in some cases, may be a
close question. For example, the crime leading to the firearm prohibition in Schrader–a misdemeanor arising from a fistfight—may be open to debate. Those who commit felonies, however, cannot profit from our recognition of such borderline cases. For these reasons, we hold that those convicted of felonies are not among those entitled to possess arms.
Medina, 913 F.3d at 159-160 (cleaned up).
Furthermore, the D.C. Circuit explained that “[b]ecause [Medina‘s] claim fails at the first step of the [then-prevailing two-step] analysis, we need not reach the second step.” Id. at 161. As such, Medina is not predicated upon the second-step interest balancing that Bruen rejected, and it remains binding on this Court and controls the outcome of Defendant‘s claims that § 922(g)(1) is invalid. A more recent D.C. Circuit case addressed an appellant‘s proffer that Section 922(g)(1) was facially invalid and as applied to him “because his prior convictions d[id] not establish that he is currently a danger to others and his instant offense [felon in possession] did not involve violence with a firearm.” United States v. Johnson, 158 F.4th 200, 202-203 (D.C. Cir. 2025). In Johnson, the D.C. Circuit opined that:
In Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019), we upheld the facial validity of § 922(g)(1). We do not find it “obvious” that Bruen disturbed Medina. So on plain error review, we reject [Appellant‘s] facial challenge, and we also apply Medina‘s guidance for as-applied challenges, which requires Appellant to show that his predicate felonies were minor or regulatory. “To the extent that it may be possible for a felon to show that his crime was so minor or regulatory that he did not forfeit his right to bear arms by committing it, [Appellant] has not done so.” Medina, 913 F.3d at 160. The violent nature of Appellant‘s previous convictions makes this impossible.
Johnson, 158 F.4th at 203; see also United States v. Darkwah, Crim. Action No. 25-194 (LLA), 2026 WL 179662 (D.D.C. Jan. 21, 2026) (discussing a Bruen challenge to section 922(g)(1), made by a defendant convicted of being a felon in possession, in the context of a motion to dismiss a count of the Indictment).
In Darkwah, the Honorable Loren Alikhan noted that the ”Medina Court solely examined
3. Defendant‘s Bruen Claims are Untimely
The applicable limitations period for Defendant‘s Bruen claims ended one year after the Supreme Court decided Bruen on June 23, 2022, which would be in June of 2023.8 The earliest date on which Defendant raised his claims would be May 15, 2024, which is the date he listed on his Omnibus Motion and well after the one-year limitations period. In his Omnibus Motion, Defendant attempts to link his Bruen claims to his Rehaif claim (where he argued the relation-back doctrine, unsuccessfully), but the two claims are distinct, see ECF No 39, at 2, 9. “An amended habeas petition . . . does not relate back (and thereby escape AEDPA‘s one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005); see also United States
4. Defendant‘s Bruen Claims are Procedurally Defaulted and Defendant Fails to Show Cause and Prejudice
Furthermore, the Government asserts, and this Court agrees, that Defendant is prohibited from raising his Bruen claims in a Section 2255 motion because he did not raise them on direct appeal. As noted herein previously, this procedural bar applies to claims that attempt to challenge the validity of a guilty plea on collateral review. Bousley v. United States, 523 U.S. 614, 621 (1998) (“[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.“) The Government asserts that, following the Bruen decision, multiple district courts have applied this rule to find a defendant prohibited from raising a Bruen claim on collateral review if defendant failed to raise it on direct appeal. Govt. Opp‘n, ECF No. 44, at 27, n.16 (string citing cases). The Court finds that Defendant‘s Bruen claims are procedurally barred because they were not raised on appeal and Defendant makes no showing of cause to excuse his failure to raise it or a showing of any prejudice. Accordingly, Defendant‘s Bruen claims are procedurally defaulted, which is a second ground for denial of his motion to reinstate his Section 2255 motion based on those claims.
5. Defendant‘s Bruen Claims are Without Merit
Defendant “relies” on Bruen (and Rahimi) to challenge the constitutionality of Section
Furthermore, as to Defendant‘s as-applied challenge, the D.C. Circuit explained in Johnson [which post-dates Bruen]:
In Medina, we held open the possibility that a “felon [could] show that his crime was so minor or regulatory that he did not forfeit his right to bear arms by committing it.” 913 F.3d at 160. But we also said that Medina‘s convictions for felony and misdemeanor fraud indicated a “disregard for the basic laws and norms of our society” that is “precisely what differentiates a criminal from someone who is ‘law-abiding.‘” Id. If nonviolent fraud convictions are not sufficiently “minor or regulatory” to succeed as an as-applied challenge under Medina, Appellant‘s convictions for violent crimes do not come close.
Johnson, 158 F.4th at 209-210; see also Darkwah, 2026 WL 179662, at *4-5 (finding that
In the instant case, Defendant‘s prior conviction for Possession of a Firearm during a Violent Dangerous Offense (noted in the PSR) puts him outside of the realm of a conviction “so minor or regulatory,” that his as-applied challenge fails. Accordingly, the Court finds that Defendant‘s Bruen challenges to Section 922(g)(1) are contradicted by applicable case law, including law from this Circuit, and this is a third ground for denial of Defendant‘s motion to reinstate his Section 2255 motion based on his Bruen claims.
Having determined that Defendant‘s challenges pursuant to Rehaif and Bruen cannot succeed, the Court turns now to Defendant‘s claims pursuant to Amendments 819 and 821.
C. Defendant‘s Claims for a Sentencing Reduction Fail
Defendant proffers challenges to his sentence based on Amendments 819 and 821 of the Sentencing Guidelines and he requests a sentence reduction pursuant to these provisions.
1. Amendment 819
Amendment 819 of the Sentencing Guidelines – which addresses new firearm-related offenses – is inapplicable to Defendant as it is not retroactive; see U.S.S.G. § 1B1.10(d) (listing the guideline amendments that apply retroactively and omitting Amendment 819 from this list). Furthermore, even if it Amendment 819 was retroactive, Amendment 819 is not relevant to Defendant‘s Guidelines calculations, as “[a]ll but one of the changes effected by Amendment 819
2. Amendment 821
Defendant asks this Court also to reduce his sentence pursuant to the criminal history “status points” provisions of Part A of Amendment 821 of the Sentencing Guidelines. Def.‘s Omnibus Mot. , ECF No. 39, at 4-5. Part A of Amendment 821 limits the impact of “status points,” which are the additional criminal history points given to defendants for committing the offense while under another criminal justice sentence such as probation or imprisonment. The Sentencing Commission gave retroactive effect to Part A. As relevant to Defendant, the amended provision states: “Add 1 point if the defendant (1) receives 7 or more points under subsections (a) through (d) and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(e). Previously, a defendant who committed an offense while under a criminal justice sentence received 2 “status points” regardless of his criminal history points, while that defendant now receives 1 “status point” when assigned 7 or more criminal history points (or no “status
In this case, the status-points provision of Amendment 821 does not lower Defendant‘s Guideline range. Removing the 2 status points he received at sentencing leaves him with 7 criminal history points. See Sent. Tr., ECF No. 28, at 2-3 (discussing points). Defendant‘s seven criminal history points produce the same criminal history category of IV and the same Guideline range of 51-63 months of imprisonment. Accordingly, because Defendant‘s Guideline range is not lowered, he is entitled to no relief. See Dillon v. United States, 560 U.S. 817, 821 (2010) (addressing the process for application of a retroactive guideline amendment and emphasizing that “[a]ny reduction must be consistent with applicable policy statements issued by the Sentencing Commission“). In Dillon, the Supreme Court discussed the two-step approach that district courts are required to follow when confronted with a motion for reduction of sentence pursuant to
At step one,
§ 3582(c)(2) requires the court to follow the Commission‘s instructions in § 1B1.10 to determine the prisoner‘s eligibility for a sentence modification and the extent of the reduction authorized. Specifically, § 1B1.10(b)(1) requires the court to begin by “determin[ing] the amended guideline range that would have been applicable to the defendant” had the relevant amendment been in effect at the time of the initial sentencing. “In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Ibid.Consistent with the limited nature of
§ 3582(c)(2) proceedings, § 1B1.10(b)(2) also confines the extent of the reduction authorized. Courts generally may “not reduce the defendant‘s term of imprisonment under18 U.S.C. § 3582(c)(2) . . . to a term that is less than the minimum of the amended guideline range” produced by the substitution. §1B1.10(b)(2)(A) . . .
Dillon. 560 U.S. at 827 (discussing step two). In this case, Defendant‘s motion fails at the first step because Amendment 821 has not lowered his Guideline range. Section 1B1.10(a)(2) of the
D. Appointing Counsel for Defendant Is Not in the Interests of Justice
In addition to requesting that the Court vacate or reduce his sentence, Defendant requests the appointment of counsel to assist in litigating his claims in his [proffered revived] § 2255 Motion, see Def.‘s Section 2255 Mot., ECF No. 36, at 2, and in seeking a sentence reduction under Amendment 819, see Def.‘s Mot. for Appt. of Counsel, ECF No. 38, at 1.
The right to counsel does not attach generally to post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further.“) The Criminal Justice Act provides however for federal courts to appoint counsel for indigent defendants in certain post-conviction proceedings when it is in the “interests of justice” to do so.
In determining whether appointing counsel is in the interests of justice, a court must consider “(1) the petitioner‘s likelihood of success on the merits, (2) the ability of the petitioner
In this case, the Court has determined that Amendment 819 is inapplicable to Defendant; Amendment 821 does not affect Defendant‘s Guidelines range. Furthermore, the Court has determined that Defendant‘s proffered claims forming the basis of his proposed revived Section 2255 motion are without merit and contrary to Circuit precedent. Moreover, the Court notes that Defendant was represented by counsel, post-Rehaif, when Defendant‘s original Section 2255 motion was filed and subsequently voluntarily dismissed. Accordingly, it is not in the interests of justice to appoint counsel to assist Defendant in pursuing a revived Section 2255 motion or his request for a sentence reduction based on Amendments 819 and 821.
IV. CONCLUSION
For the reasons explained in detail herein, this Court finds that Defendant‘s motions to revive/reinstate his § 2255 motion are denied because the Rehaif and Bruen claims underlying his
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
Notes
Bruen did however reject the interest-balancing second step in Heller. More specifically, Bruen held that:
[T]his two-step approach[ ] is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment‘s text, as informed by history. But Heller and McDonald [v. City of Chicago, 561 U.S. 742 (2010),] do not support applying means-end scrutiny [i.e., step two] in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.