Background
Linder Kai Divos pleaded guilty to possessing fentanyl with intent to distribute and being a felon in possession of a firearm. He later sought relief under 28 U.S.C. § 2255, arguing that plea counsel should have challenged the felon-in-possession charge under New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
The district court denied relief but granted a certificate of appealability on the ineffective-assistance claim concerning the potential Bruen challenge. Divos had reserved in his plea agreement the right to pursue such a challenge. On appeal, his counsel moved to withdraw, while the government sought summary affirmance.
The Court’s Holding
The Eighth Circuit affirmed the denial of § 2255 relief. It held that the record showed a Bruen defense had little chance of succeeding under the legal landscape at the time of Divos’s plea. Counsel was not constitutionally required to advance an argument that conflicted with then-settled circuit authority or to anticipate a change in the law.
The court relied in part on Eighth Circuit precedent recognizing that Bruen did not displace the Supreme Court’s statements concerning longstanding prohibitions on firearm possession by felons. Because the proposed defense was unlikely to succeed, Divos did not establish ineffective assistance in connection with his guilty plea. The court also granted appellate counsel’s motion to withdraw and denied the government’s summary-affirmance motion as moot.
Key Takeaways
- Plea counsel does not perform deficiently by declining to make an argument that conflicts with settled circuit law.
- The viability of an omitted defense is central to prejudice in a plea-related ineffective-assistance claim.
- The Eighth Circuit continued to treat Bruen as consistent with longstanding prohibitions on firearm possession by felons.
Why It Matters
The unpublished decision reinforces the difficulty of using § 2255 to fault plea counsel for not pursuing a novel Second Amendment argument. In the Eighth Circuit, counsel generally need not anticipate legal developments or challenge a felon-in-possession charge on a theory that had little prospect of success under controlling authority at the time of the plea.