# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted July 26 , 2021 *

Decided July 27, 2021

Before

MICHAEL S. KANNE , Circuit Judge

MICHAEL Y. SCUDDER , Circuit Judge

AMY J. ST. EVE , Circuit Judge

No . 20-1144

MICHAEL A NTHONY CLARK , Petitioner -Appell ant ,

v

.
M. SEGAL, Warden, Respondent -Appell ee

. Appeal from the United States District Court for the Central District of Illinois

.

No. 19- cv -1305- JES

James E. Shadid , Judge

.

O R D E R

Rehaif v. United States , 139 S. Ct. 2191, 2194 (2019), held that to convict a person of illegally possessing a firearm under 18 U.S.C. § 922(g), the government “ must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it ”— that he belonged to a category of person s barred under

* W e have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34 (a)(2)(C). We have also substituted the

curren t respondent, M. Segal (first name unavailable), warden at F ederal C orrectional I nstitution Pekin. F ED

. R. A PP

. P. 43(c )( 2 ). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No . 20-1144 Page 2

§ 922(g) from possessing firearms. Michael Clark invoke s 28 U.S.C. § 2241 and Rehaif to attack his convictions for illegally possessing firearm s as a felon. Clark argu es that he is innocent because he thought that his civil right to possess guns had been restored , and the government did not prove other wise. But “restoration” is an affirmative defense under 18 U.S.C. § 92 1(a)(20) that Clark must prove , and he did not do so

. Further, Clark conceded that he knew he possessed firearms and that he was a felon , a category of persons that § 922(g) bars from posses sing guns . Because r elief under § 2241 requires a miscarriage of justice , which did not occur, we affirm.

Clark ’s attack on his felon

- in

- possession charges has a long history. He was indicted in 2005 in the Eastern District of Michigan for drug crimes and two counts of possessing a f irearm as a f elon

. In mo ving to dismiss those latter counts, Clark argued that , by completi ng his prison sentence on the underlying felony conviction in 1990 , the State of Michigan fully restored his civil rights

. He conceded that since 1992 Michigan law has prohibit ed felons from possessing a firearm unless t he y successfully applied to restor e their right to have a gun

. S ee M ICH

. C OMP

. L AWS §§ 750.224f, 28.424 (1992). B ut he contended that the change to the law in 1992 did not constitutionally apply to him, an argument that the district court rejected. See Opinion and Order at 3 –5, United States v. Clark , No. 05-80810 (E.D. Mich. July 18, 2006). After his conviction , the district court sentence d him to 600 months ’ imprisonment ( including two consecutive 120- month
terms on the § 922(g)(1) counts ). Clark appealed his felon

- in

- possession co nvictions , without success

. United States v. Jackson , 454 F. App’x 435, 445 (6 th Cir. 2011). The Sixth Circuit emphasized that the change in law in 1992 was immaterial: W hen Clark was convicted in 1984 of his felony , Michigan law already barred felons from possessing guns unless they successfully applied to restore their gun

- possession rights , M ICH . C OMP

. L AWS § 28.422 (1972), and Clark had not proven that he had done so

. Jackson , 454 F. App’x at 445.

Clark continued un successfully to attack his felon

- in

- possession convictions. In a motion under 28 U.S.C. § 2255 , he asserted that his counsel was ineffective for failing to prove Clark’s i nnocence of the felon

- in

- possession charges

. For what he regarded a s evidence of his lawyer’s incompetence, Clark submitted orders from other firearm prosecutions against him that had resulted in dismissal or acquittal; an application to restore his firearm rights from 2001 ; and a certificate that he completed a firearm

- safety

course. The district court denied the petition, explaining that none of the submissions showed that his right to possess a firearm had been restored. United States v. Clark , No. 05-80810, 2017 WL 3412166, at *3 (E.D. Mich. Aug. 9, 2017). The Sixth Circuit deniedNo . 20-1144 Page 3

a certificate of appealability. See Order at 4 , Clark v. United States , No. 17-2048 (6 th Cir. Mar. 9, 2018).

C lark ’s latest attack began in 2019. H e petitioned the Central District of Illinois, where he is now incarcerated , for relief under § 2241. Relying on Rehaif , his belief that under § 921(a)(20) the discharge of his prison sentence in 1990 had fully restored his civil rights , and the government ’s failure to contradict his belief , Clark contend ed that he is actually innocent of his convictions under § 922(g)(1). T he district court denied Clark’s petition

. It reasoned that Rehaif required that the government prove only that Clark knew that he was a previously convicted felon at the time he possessed the firearm, a fact that Clark “unequivocally concede[d]. ” Nothing in Rehaif , the court added, mandated that the government also negate a possible affi rmative defense of the restoration of civil rights under § 921(a)(20).
On appeal, Clark repeats his argument that , because the government did not show that he knew that his gun rights had not been restored, under Rehaif he is innocent and entitled to relief under § 2241

. We review the district court’s ruling den ying relief under § 2241 de novo

. Pope v. Perdue , 889 F.3d 410, 413 (7th Cir. 2018). G eneral ly , a federal prisone r attack ing a conviction collaterally must move under § 2255 in the district of conviction

. Chazen v. Marske , 938 F.3d 851, 856 (7 th Cir. 2019). But a prisoner may file a § 2241 petition in his district of incarceration if § 2255 is “inadequate or ineffective” to test the legality of his detention. See § 2255(e). That occurs if the p etitioner show s that he: (1) seeks relief based on a decision of statutory interpretation ; (2) th at decision applies retroactively and could not have been invoked in his first § 2255 petition ; and (3) a miscarriage of justice will occur if the petition is disallowed

. Chazen, 938 F.3d at 856; In re Davenport, 147 F.3d 605, 609 (7 th Cir. 1998 ).
As the government correctly argues, C lark ’s petition falters at the third step

. Section 922(g) (1) ba rs felons

— those convict ed of crimes “punishable by imprisonment for a term exceeding one year”

— from possessing firearms. A conviction under § 922(g) (1) is v alid whe n the government prove d that the defendant knew that “he possessed a firearm” and knew “he was a felon.” Rehaif , 139 S. Ct. at 2194;

see also United States v. Maez , 960 F.3d 949, 954–55 (7 th Cir. 2020)

. Clark concedes that the government proved these elements. Thus, he cannot show a “miscarriage of justice,” and R ehaif provides him no relief

. Clark responds by arguing, incorrectly , th at Rehaif shift ed to the government the burden to disprove that Clark’s civil rights had been restored. Section 921(a)(20) states that a predicate felony does not include a conviction for which the convict has had civilNo . 20-1144 Page 4

right to possess firearms “restored .” W e have repeatedly held that § 921(a)(20) is an affirmative def en se : “The defendant bears the burden of proving that his rights were restored....” United States v. Shields , 789 F.3d 733, 749 (7 th Cir. 2015); see also United States v. Zuniga , 767 F.3d 712, 719 (7 th Cir. 2014). Rehai f did not disturb this precedent because the Supreme Court focus ed on the elements of the government’s case under § 922(g), 139 S. Ct. at 2194–97, not on the affirmative defense of § 921(a)(20) on which the defendant bears the burden of proof. Clark has previously attempted

— and failed

— before trial, on direct appeal, and under § 2255 , to meet his burden to prove that his civil rights had been fully restored . H is attempt to use Rehaif to argue that he never bore that burden in the first place and that his c onviction is a miscarriage of justice therefore fails

. We briefly address a final matter. Clark contends that the district court should have held an evidentiary hearing. But the court did not abuse its discretion in refusing to hold a hearing because it correctly concluded , a s a matter of law, that Clark did not meet the requirements under § 2241.
We have considered Clark’s remaining arguments, and none has merit.

AFFIRMED