Section 2255(f)(3) and the Second Amendment: Bruen and Rahimi’s Non-Retroactivity to Pre-Existing Felon-Gun Convictions

Introduction

This commentary examines the United States Court of Appeals for the Tenth Circuit’s decision in United States v. Barragan-Gutierrez, No. 23-8032 (10th Cir. May 12, 2025). The appellant, Jorge Enrique Barragan-Gutierrez, a Wyoming drug‐trafficking defendant, challenged his 2015 conviction under 18 U.S.C. § 924(c)(1)(A) for possessing a firearm in furtherance of drug trafficking. He argued, in light of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n v. Bruen (2022) and United States v. Rahimi (2024), that § 924(c)(1)(A) unconstitutionally criminalized his Second Amendment rights and that his 2015 sentence should be vacated via a § 2255 habeas petition.

The key issues presented were:

• Whether Bruen and Rahimi recognized a “new” Second Amendment right extending beyond law-abiding citizens and applicable to felons;
• Whether any such new right, if it existed, was retroactive on collateral review under 28 U.S.C. § 2255(f)(3);
• Whether § 924(c)(1)(A) violates the Second Amendment under the post-Bruen/Rahimi framework.

Summary of the Judgment

The Tenth Circuit affirmed the district court’s dismissal of Barragan-Gutierrez’s § 2255 petition. The panel held that:

1. No “new” constitutional right applicable to pre-2022 felon firearms convictions was formally recognized by the Supreme Court in Bruen or Rahimi;
2. Because no new right was recognized, § 2255(f)(3)’s one-year extension for collateral claims did not apply and the petition was time-barred;
3. Even under the Heller/Bruen/Rahimi historical-tradition test, longstanding prohibitions on felon firearm possession and on firearms used in furtherance of felonies remain constitutional.

Thus, Barragan-Gutierrez’s petition was dismissed for lack of timeliness, and the denial of his habeas relief was affirmed.

Analysis

Precedents Cited

• District of Columbia v. Heller (2008): Recognized an individual right to keep and bear arms for self-defense within the home, while reaffirming that longstanding prohibitions (e.g., felons, dangerous weapons) remain valid.
• New York State Rifle & Pistol Ass’n v. Bruen (2022): Established the originalist “text, history, and tradition” framework for Second Amendment challenges but expressly left felony-possession bans intact.
• United States v. Rahimi (2024): Applied Bruen’s originalist test to uphold a restraining-order–based firearms prohibition, clarifying that the government bears the burden to show a “well‐established and representative” historical analogue.
• Johnson v. United States (2015): Recognized a new Due Process right invalidating the ACCA residual clause, demonstrating the standard for what constitutes a “newly recognized right” under § 2255(f)(3).
• United States v. Greer (10th Cir. 2018) & United States v. Hopkins (10th Cir. 2019): Defined “new right” for § 2255(f)(3) as one “not dictated by precedent” and “formally acknowledged” by the Supreme Court.

Legal Reasoning

The court’s reasoning unfolds in three steps:

1. Statute of Limitations under § 2255: A § 2255 motion must be filed within one year of the judgment becoming final, or within one year of the Supreme Court’s recognition of a “new” right that is made retroactive. Barragan-Gutierrez’s conviction became final in 2016; he did not file his petition until 2023.
2. No “New Right” in Bruen or Rahimi: Bruen and Rahimi refined the analytical approach to Second Amendment claims but did not formally announce a new constitutional right protecting felons who possess firearms in furtherance of crime. Both decisions expressly preserved historical bans on felon‐firearm possession.
3. Continuation of Heller’s Core Holdings: Heller’s statement that “longstanding prohibitions on the possession of firearms by felons … .” remain valid was neither questioned nor overturned in Bruen/Rahimi. The Tenth Circuit emphasized that extending fairness to felons beyond that historical tradition would require a new, explicit Supreme Court holding, which has not occurred.

Impact on Future Cases

This decision cements the principle that:

• Felons and other historically restricted classes may not rely on Bruen or Rahimi to reopen time-barred collateral challenges unless the Supreme Court explicitly extends Second Amendment protections to them.
• Lower courts will continue to apply Heller’s carve-outs for felon-firearm prohibitions and § 924(c) firearm-in-furtherance statutes as per the “history and tradition” test.
• Future defendants convicted of firearm-in-furtherance offenses prior to Bruen and Rahimi cannot invoke these decisions to undo convictions or sentences unless and until the Supreme Court definitively recognizes a new, retroactive right for their specific class.

Complex Concepts Simplified

• 18 U.S.C. § 924(c)(1)(A): Federal statute criminalizing the possession or use of a firearm “in furtherance of” certain felonies (e.g., drug trafficking), carrying mandatory minimum sentences.
• 28 U.S.C. § 2255(f)(3): Permits a habeas petitioner to file up to one year after the Supreme Court “recognizes” and makes retroactive “a new right” relevant to the prisoner’s conviction.
• “Newly Recognized Right” Test: A right is “new” only if it was not already clearly dictated by existing precedent and if the Supreme Court has officially declared it in a definitive, retroactive manner (e.g., Johnson’s ACCA residual-clause ruling).
• Bruen/Rahimi Originalist Framework: Courts must ask whether a challenged firearms regulation is consistent with the text, history, and tradition of the Second Amendment, using historical analogues rather than modern policy judgments.

Conclusion

United States v. Barragan-Gutierrez reaffirms that the Supreme Court’s post-Heller decisions—Bruen and Rahimi—do not retroactively extend Second Amendment protections to felons challenging § 924(c) convictions predating those cases. The Tenth Circuit’s ruling highlights:

• The distinction between refining constitutional tests and announcing new rights;
• The continued validity of historical firearm restrictions for felons and firearms-in-furtherance statutes;
• The high bar for reopening time-barred collateral challenges under § 2255(f)(3).

This decision thus provides clarity to lower courts and practitioners that, absent an explicit Supreme Court holding to the contrary, longstanding prohibitions on felon firearm possession and § 924(c) convictions remain immune from collateral attack on Second Amendment grounds.