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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA, CRIMINAL CASE NO. 1:17-cr-129

CIVIL CASE NO. 1:20-cv-630

Respondent/Plaintiff,

v. Judge Michael R. Barrett

DAVID DAWKINS,

Petitioner/Defendant.

ORDER 

This matter is before the Court on Petitioner’s Motion under 28 U.S.C. § 2255 to 

Vacate, Set Aside, or Correct Sentence (Doc. 31), the government’s response (Doc. 

33), and Petitioner’s reply (Doc. 34). For the reasons that follow, the Court will deny the 

motion.

I. BACKGROUND

On March 6, 2018, Defendant pled guilty to possession of a firearm and 

ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1). (Docs. 22, 23). 

He was sentenced on July 3, 2018 to a term of 46 months of imprisonment, with credit 

for time served, followed by three years of supervised release. (Doc. 27). Judgment 

was entered on July 5, 2019. (Docs. 29, 30). Defendant did not appeal.

On June 21, 2019, the United States Supreme Court decided Rehaif v. United

States, 139 S. Ct. 2191 (2019). Rehaif held that, in a prosecution under § 922(g), the 

government must prove “both that the defendant knew he possessed a firearm and that 

he knew he belonged to the relevant category of persons barred from possessing a 

firearm.” Id. at 2200 (emphasis added). Petitioner argues that, under Rehaif, his guilty 

plea is invalid. (Doc. 31 at PageID 80, 90–94).

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II. STANDARD OF REVIEW

Relief under 28 U.S.C. § 2255 is warranted upon a showing of either “(1) an error 

of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) 

an error of fact or law that was so fundamental as to render the entire proceeding 

invalid.” Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003) (citing 

Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). A petitioner using 

Section 2255 must demonstrate relief by a preponderance of the evidence. Pough v. 

United States, 442 F.3d 959, 964 (6th Cir. 2006).

Petitioner argues an error of constitutional magnitude. 

III. ANALYSIS

The government disputes the merits of Petitioner’s motion but argues primarily 

that it should be denied as time-barred. The Court agrees.

There is no question that Petitioner’s motion is untimely under Section 2255(f)(1). 

Judgment was entered on July 5, 2018 (Doc. 29) and an appeal was required to be 

taken within 14 days (see Fed. R. App. P. 4(b)(1)(A)(i)), or by July 19, 2018. Any 

Section 2255 motion, therefore, was due on or before July 19, 2019. Petitioner’s motion 

was not filed until August 10, 20201, more than a year later.

Unfortunately for Petitioner, Section 2255(f)(3) does not extend the July 19, 2019 

deadline. To take advantage of this savings clause, two elements must be satisfied. 

First, the Supreme Court must issue a new rule of law and, second, declare that rule to 

be retroactive. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (“We thus conclude that a 

1 Although docketed on August 14, 2020, Defendant’s motion is signed and postmarked August 10, 

2020. (Doc. 31 at PageID 96). 

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new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme 

Court holds it to be retroactive”). 

The Sixth Circuit has not addressed in a published opinion whether Rehaif

announced a “new rule of constitutional law” and, if so, whether it is to be applied 

retroactively. But in an unpublished opinion, the Sixth Circuit declined to allow a 

defendant to amend his Section 2255 motion to add a claim under Rehaif. Khamisi-El 

v. United States, 800 F. App’x 344, 345 (6th Cir. 2020). The court explained:

Khamisi-El proposes to argue that his felon-in-possession 

conviction should be vacated based on Rehaif. Before Rehaif, the 

government could obtain a felon-in-possession conviction without 

proving that the defendant knew he had previously been convicted 

of a felony. See, e.g., United States v. Daniel, 134 F.3d 1259, 1263 

(6th Cir. 1998). But in Rehaif, the Supreme Court clarified that the 

term “knowingly” in the felon-in-possession statute applied to both 

the defendant’s possession of a firearm and the defendant’s status 

as a felon. Rehaif, 139 S. Ct. at 2200.

The rule stated in Rehaif is a matter of statutory interpretation, not a 

“new rule of constitutional law.” In re Palacios, 931 F.3d 1314, 

1315 (11th Cir. 2019). Moreover, Rehaif’s change in statutory 

interpretation cannot be considered “newly discovered evidence.” 

Id. (emphasis in original). As noted in Khamisi-El, the Eleventh Circuit has determined 

that Rehaif did not announce a “new rule of constitutional law,” and, even if it had, 

Rehaif “was not made retroactive to cases on collateral review by the Supreme Court.” 

In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019). The Third Circuit likewise has 

determined that Rehaif did not announce a rule of constitutional law. In re Sampson, 

954 F.3d 159 (3rd Cir. 2020). Further, district courts within the Circuit have consistently 

concluded that Rehaif does not apply retroactively to cases on collateral review. See, 

e.g., Johnson v. United States, No. 1:18CR57, 2020 WL 7863871, at *1 (N.D. Ohio Dec. 

31, 2020); Lee v. United States, No. 3:19-cv-00850, 2020 WL 7425862, at *2–3 (M.D. 

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Tenn. Dec. 18, 2020); Summers v. United States, Nos. 2:19-CV-188, 2:16-CR-114, 

2020 WL 7133044, at *4–5 (E.D. Tenn. Dec. 4, 2020); Owens v. United States, Nos. 

3:20-CV-134, 3:06-CR-121, 2020 WL 6082729, at *4 (E.D. Tenn. Oct. 15, 2020); 

O’Kelley v. United States, Nos. 1:19-cv-322, 1:17-cr-16, 2020 WL 5735949, at *2–3 

(E.D. Tenn. Sept. 24, 2020); United States v. Saunders, No. 1:17 CR 00511, 2020 WL 

3447819, at *2 (N.D. Ohio June 23, 2020); Swindle v. United States, No. 1:20-CV-189, 

2020 WL 3167012, at *1 (W.D. Mich. June 15, 2020); United States v. Burley, No. 4:15 

CR 352, 2020 WL 2126682, at *1 (N.D. Ohio May 5, 2020); Wright v. United States, No. 

1:16-cv-01080-JDB-jay, 2020 WL 718237, at *2 (W.D. Tenn. Feb. 12, 2020); Maxie v. 

Warden, No. 6:19-cv-300-JHM, 2020 WL 86207, at *2 (E.D. Ky. Jan. 7, 2020); United 

States v. May, No 3:16-cr-127, 2019 WL 6310195, at *1–3 (S.D. Ohio Nov. 25, 2019), 

report and recommendations adopted, 2019 WL 6893546 (S.D. Ohio Dec. 18, 2019). 

Finally, even if this Court were to break stride and conclude that Rehaif

announced a new rule, Petitioner’s motion still would be untimely. Section 2255(f)(3) 

provides that the one-year limitations period begins to run 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[.]” As discussed, Rehaif was decided on June 21, 2019, requiring a 

Rehaif-based Section 2255 motion to be filed by June 21, 2020. Petitioner’s motion, 

however, was not signed and postmarked until August 10, 2020. In his reply, Petitioner 

asks that his motion “not be time-barred” because inmates have been on lockdown with 

limited access to phones and emails “on the account of the Covid-19 pandemic.” (Doc. 

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34 at PageID 105). To the extent this is intended as an application for equitable tolling,

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it would be denied. Rehaif was decided eight-plus months before any BOP facility3 was 

placed on lockdown to stop the spread of the coronavirus, and Petitioner offers no 

explanation for why his motion could not have been filed before March 2020. 

IV. CONCLUSION

Pursuant to 28 U.S.C. § 2255(b), the Court determines that the instant motion and 

the files and records of this case conclusively show that Petitioner is not entitled to relief. 

Therefore, a hearing is not necessary to determine the issues and make the findings of 

fact and conclusions of law with respect thereto. Accord Smith v. United States, 348 F.3d 

545, 550-51 (6th Cir. 2003). The claims raised are conclusively contradicted by the record 

and the law of the Sixth Circuit and the United States Supreme Court. Accordingly,

2 The Supreme Court has held that 28 U.S.C. § 2244(d) is subject to equitable tolling, but only if a 

petitioner demonstrates “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 

circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) 

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (emphasis deleted). See also Jones v. United 

States, 689 F.3d 621, 627 (6th Cir. 2012) (applying this standard in the § 2255 context); Johnson v. United 

States, No. 3:07cr00104, 2012 WL 2847510, * 2 (S.D. Ohio July 11, 2012) (“There is no reason why the 

analysis should be different under § 2255 since both limitations statutes are part of [AEDPA].”). Prior to 

Holland, the Sixth Circuit had used a non-exhaustive, five-factor inquiry to determine whether equitable 

tolling was appropriate in the habeas context, which included consideration of whether there was resulting 

prejudice to the respondent. See Dunlap v. United States, 250 F.3d 1001, 1008–09 (6th Cir. 2001). Holland 

changed the analysis substantially, as noted in Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745 

(6th Cir. 2011): “Whereas Dunlap sets forth a variety of factors for the courts to consider, not all of which 

are necessarily comprehensive or always relevant, . . . Holland dictates the two requirements that must be 

met before a habeas petitioner is entitled to equitable tolling relief.” Id. at 750 (internal quotation omitted) 

(emphasis added). Regardless of the framework for applicability, equitable tolling is to be employed 

sparingly and only upon a petitioner’s demonstration of entitlement. See Robertson v. Simpson, 624 F.3d 

781, 784 (6th Cir. 2010).

3 Petitioner is incarcerated at FCI McDowell. https://www.bop.gov/inmateloc/ (last visited 

01/13/2021). On March 5, 2020, McDowell was placed on modified operations (with inmates confined to 

their cells) because of a flu-outbreak unrelated to the coronavirus. https://wvva.com/2020/03/05/welchfederal-prison-is-under-lockdown-amidst-flu-outbreak/ (last visited 01/14/2021). Inmates at every BOP 

institution were placed on lockdown beginning April 1, 2020 “to further mitigate the exposure and spread 

of COVID-19.” https://www.bop.gov/resources/news/pdfs/20200331_press_release_action_plan_5.pdf

(last visited 01/14/2021). 

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Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 

(Doc. 31), because it was not timely filed, is hereby DENIED. 

Further, the Court will not issue a certificate of appealability. The Court concludes

that no jurist of reason would find it debatable whether this Court is correct in its 

procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“Where a plain 

procedural bar is present and the district court is correct to invoke it to dispose of the 

case, a reasonable jurist could not conclude either that the district court erred in 

dismissing the petition or that the petitioner should be allowed to proceed further. In such 

a circumstance, no appeal would be warranted.”). 

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court

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