1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, No. 3:16-cr-00041-HZ-1

Plaintiff,

ORDER

v.

DAVID PAUL LEE,

Defendant.

Amy E. Potter 

United States Attorney's Office 

405 E. 8th Avenue, Suite 2400 

Eugene, OR 97401

Attorney for Plaintiff

Thomas Freedman 

Pearl Law, LLC 

610 SW Alder Street 

Suite 800 

Portland, OR 97205

Attorney for Defendant
2 – OPINION & ORDER

HERNÁNDEZ, District Judge:

Defendant David Paul Lee moves to vacate or correct his sentence under 28 U.S.C. § 

2255. The Government opposes Defendant’s motion. For the reasons that follow, the motion is 

denied.

BACKGROUND

On August 22, 2016, Defendant pleaded guilty to being a fugitive in possession of a 

firearm. Pet. & Order Entering Guilty Plea, ECF 54. On March 9, 2017, this Court sentenced 

Defendant to twenty-seven months imprisonment and three years of supervised release. J. & 

Commitment, ECF 70.

On January 10, 2018, while represented by counsel, Defendant personally filed three

motions with the Court. See ECF 72, 73, 74. Defendant was advised by the Court that motions

filed by a defendant with appointed counsel would not be entertained. Minutes of Proceedings, 

ECF 69. On February 23, 2018, Defendant’s counsel filed a motion to reduce Defendant’s 

sentence. Mot. to Reduce Sentence, ECF 76. That motion was granted on June 7, 2018, and 

Defendant’s sentence was reduced by 282 days for time served. Op. & Order, ECF 79. 

Defendant’s counsel withdrew from the case on June 20, 2018. Mot. to Withdraw, ECF 83. 

On September 7, 2018, Defendant was arrested on a supervised release violation, and 

appointed new counsel. Minutes of Proceedings, ECF 87. On September 21, 2018, the Court 

granted Defendant’s request to represent himself, with his attorney to remain on the case as 

standby counsel. Minutes of Proceedings, ECF 96. At that time, the Court also received three 

new pro se motions that Defendant had filed. ECF 92-96. These pro se motions included 

arguments to dismiss the underlying case for lack of subject matter jurisdiction, lack of personal 

jurisdiction, and insufficient pleadings. The government argued that the Court did not have 
3 – OPINION & ORDER

jurisdiction to hear the motions, as Defendant’s time to file a direct appeal had expired. Gov’t 

Resp to Mots. at 2-3, ECF 98. At the government’s suggestion, and with the Defendant’s 

consent, the Court construed Defendant’s filings as petitions for relief cognizable under 28 

U.S.C. § 2255. On September 27, 2018 the Court also docketed Defendant’s Motion to Vacate or 

Correct Sentence under § 2255. See ECF 102-104. The Court found that Defendant had waived 

his right to collaterally attack his sentence in his plea agreement except for claims based on 

ineffective assistance of counsel and that he failed to raise a cognizable ineffective assistance of 

counsel claim. Op. & Order, ECF 110. 

On October 7, 2020, Defendant filed a second § 2255 motion, urging the Court to vacate 

his sentence based on Rehaif v. United States, 139 S. Ct. 2191 (2019). 

DISCUSSION

Defendant’s motion is a successive § 2255 motion.1 There are limited circumstances 

under which a defendant may file a second or successive § 2255 motion. § 2255(h) prevents a 

district court from considering a second or successive petition without a certificate from the 

appropriate court of appeals authorizing it to do so. Additionally, “a federal prisoner may not file 

a second or successive § 2255 petition unless he or she makes a prima facie showing to the 

appropriate court of appeals that the petition is based on: (1) “a new rule,” (2) “of constitutional 

law,” (3) “made retroactive to cases on collateral review by the Supreme Court,” (4) “that was 

1

In his reply, Defendant argues that his motion is not a second or successive motion because 

Rehaif was decided after he filed his prior § 2255 motion. Defendant relies on Panetti v. 

Quarterman, 551 U.S. 930, 127 (2007) to support his position that this is not a successive 

petition because his claim was not ripe. Panetti concerned an exception to AEDPA's “second or 

successive” requirement for competency-to-be-executed claims based on Ford v. Wainwright, 

477 U.S. 399 (1986). This is not a Ford-based competency claim. The Ninth Circuit has warned 

that Panetti should not be “read to support a construction of AEDPA that expands federal courts' 

pre-AEDPA ability to reach the merits of claims presented in second-in-time habeas petitions.”

United States v. Lopez, 577 F.3d 1053, 1056 (9th Cir. 2009) (emphasis in original).
4 – OPINION & ORDER

previously unavailable.” Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) (citing 28 

U.S.C. § 2255(h)(2)). 

First, Defendant has not obtained authorization to file a second or successive motion from 

the Ninth Circuit. Accordingly, this Court lacks jurisdiction to consider his motion. Second, even

if Defendant had obtained authorization to file a successive motion, his motion is doomed by the 

Ninth Circuit’s decision in Tate v. United States, 982 F.3d 1226 (9th Cir. 2020).

2

Defendant pleaded guilty to one count of Unlawful Possession of a Firearm – Fugitive in 

violation of 18 U.S.C. § 922(g)(2). 18 U.S.C. § 924(a)(2) provides that anyone who knowingly 

violates 18 U.S.C. § 922(g)’s prohibition on specified categories of persons from possession of 

firearms may be fined or imprisoned for up to ten years. In Rehaif, the Supreme Court held that 

“in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), 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.”139 S. Ct. 2191, 2200 (2019).

Relying on Rehaif, Defendant moves to vacate his sentence and withdraw his guilty plea 

under 28 U.S.C. § 2255. Defendant argues that in Rehaif the Supreme Court announced a new 

constitutional rule, which should be applied retroactively to his case. However, the Ninth Circuit 

recently determined that Rehaif did “not announce ‘a new rule of constitutional law’ for purposes 

of filing a second or successive § 2255 motion.” Tate, 982 F.3d Thus, Defendant may not file a 

2 Even if the Court were to accept this as a first petition, and consider the merits of his claim,

Defendant cannot show that he is actually innocent or has suffered prejudice. See Bousley v. 

United States, 523 U.S. 614, 622 (1988) (citations omitted). At his plea hearing, Defendant 

admitted that he was a fugitive from justice. Tr. 27, ECF 62. The Government stated that it had 

evidence that Defendant knew a warrant had been lawfully issued for his arrest in Mason 

County, Washington because he had called the Circuit Court to confirm it was active and that he 

then “absented himself from the state of Washington.” Tr. 25–26. Defendant did not dispute this 

contention at the plea hearing. Id.
5 – OPINION & ORDER

second or successive § 2255 motion premised on Rehaif . The Court, therefore, denies 

Defendant’s motion.

CONCLUSION

The Court DENIES Defendant’s Motion to Vacate or Correct Sentence under 28 U.S.C. § 

2255 [133]. The Court declines to issue a Certificate of Appealability on the basis that Defendant 

has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 

2253(c)(2).

IT IS SO ORDERED.

DATED:_______________________.

 

____________________________________

MARCO A. HERNÁNDEZ

United States District Judge

May 26, 2021