A § 922(g)(1) Claim Raised for the First Time

A Maryland district judge denied Tayvon Whitt's motion to vacate his federal felon-in-possession conviction. The amended memorandum opinion in United States v. Whitt, Criminal No. ELH-22-00139 and Civil No. ELH-25-00126 (Read the decision (PDF)), is dated November 10, 2026. It is one judge's decision in this case. It is not a published court of appeals opinion, and it does not bind other courts.

The motion was under 28 U.S.C. § 2255. Whitt asked the court to vacate his conviction for possession of a firearm by a person with a prior felony, 18 U.S.C. § 922(g)(1). He argued that the statute is unconstitutional, on its face and as applied to him, under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). He also claimed his lawyer was ineffective for not making that argument.

What the court decided

Judge Ellen L. Hollander denied the motion. She wrote that no hearing was necessary. Section 2255(b) says a hearing is not required when the record shows the person is not entitled to relief. The hearing page on this site describes that rule.

Whitt was indicted in April 2022. Bruen was decided on June 23, 2022. He pleaded guilty on January 5, 2024, to the § 922(g)(1) count. The plea was under Federal Rule of Criminal Procedure 11(c)(1)(C), and the parties agreed to 84 months in prison. The agreement waived his right to appeal the conviction "on any ground whatsoever." He did not appeal.

The judge held that the constitutional challenge was procedurally defaulted. Whitt had not raised it in the district court, and he had not taken an appeal. Bruen was about eighteen months old when he pleaded guilty, so the judge rejected the idea that the claim was too new to have been raised. She wrote that he had the legal tools to make the claim and had not shown cause for the default. She also wrote that he had not shown factual innocence. He offered no factual basis to challenge the evidence of the § 922(g)(1) offense.

On the merits, the judge relied on two Fourth Circuit decisions. In United States v. Canada, 123 F.4th 159 (4th Cir. 2024), the court rejected a claim that § 922(g)(1) is unconstitutional in every application. The Whitt opinion quotes Canada at 161: no federal appellate court had held § 922(g)(1) facially unconstitutional, "and we will not be the first." In United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), the court rejected an as-applied challenge. The Whitt opinion quotes Hunt at 702: the statute "would pass constitutional muster even if we were unconstrained by circuit precedent." Judge Hollander wrote that Whitt's constitutional challenge had no merit.

The ineffective-assistance claim used the same theory. Under Strickland v. Washington, the person must show deficient performance and prejudice. The judge wrote that a Bruen challenge would have been futile, so counsel's decision not to raise it was not deficient performance, and there was no reasonable probability of a different result.

She denied a certificate of appealability. 28 U.S.C. § 2253(c)(2) allows that certificate only when the applicant has made a substantial showing of the denial of a constitutional right. The opinion says Whitt had not made that showing. A footnote says the denial does not stop him from asking the Fourth Circuit for a certificate.

What it means for a § 2255 motion

A Bruen argument against § 922(g)(1) has to be raised on time. In this case, waiting until a § 2255 motion was too late: the claim was defaulted, and the judge treated the Fourth Circuit's Canada and Hunt decisions as closing the merits. An ineffective-assistance claim that depends on an argument the court of appeals has already rejected still has to meet both parts of Strickland.

This note describes one amended memorandum opinion. Another judge, or the court of appeals on a later case, can read the same statutes differently.