8th Circuit upholds denial of relief for felon convicted of gun charge, ruling his lawyer…
Linder Divos v. United States
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8th Circuit upholds denial of relief for felon convicted of gun charge, ruling his lawyer was not required to raise a Second Amendment challenge that had little chance of success.
Why it matters
The Eighth Circuit affirmed the denial of Linder Divos's motion to overturn his conviction, which was based on his claim that his plea attorney gave him ineffective legal help by not challenging his felon-in-possession charge under a 2022 Supreme Court gun rights decision called Bruen. The court found that any such challenge had little chance of succeeding given the legal landscape at the time of the plea, and that defense attorneys are not required to raise arguments that conflict with settled law. Because Divos could not show he was harmed by his attorney's decision, his ineffective assistance claim failed.
Who it affects
This ruling primarily affects people convicted of federal felon-in-possession charges who seek to challenge their convictions on Second Amendment grounds using the Bruen decision. It also reinforces the boundaries of what defense attorneys are legally required to argue on behalf of clients entering guilty pleas.
What happens next
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Decision issued Jul 20, 2026
Unpublished opinion
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- Decision issued Jul 20, 2026Unpublished opinion
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Jul 20, 2026 · Unpublished opinion
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DEEPER READ
Linder Divos pleaded guilty in federal court to possessing fentanyl with intent to distribute and to being a felon in possession of a firearm. After his conviction, he filed a motion under 28 U.S.C. Section 2255, which is a federal procedure that allows a person to challenge their conviction or sentence on constitutional grounds. His argument was that his plea attorney was constitutionally ineffective by failing to challenge the felon-in-possession charge based on New York State Rifle and Pistol Association v. Bruen, a 2022 Supreme Court decision that expanded Second Amendment protections. The district court denied his motion but granted him a certificate of appealability, meaning it allowed the Second Amendment issue to be reviewed on appeal. The Eighth Circuit carefully reviewed the record and agreed with the district court that Divos was not entitled to relief. The court applied a two-part test for ineffective assistance of counsel claims in the plea context: first, whether the attorney performed deficiently, and second, whether that deficiency actually harmed the defendant. The court reasoned that a defense attorney is not required to raise arguments that go against settled law, and that a Bruen-based challenge to the felon-in-possession statute had little chance of success at the time of the plea. The court also noted that the Eighth Circuit itself had already held in United States v. Jackson that Bruen did not disturb prior Supreme Court statements about longstanding prohibitions on firearm possession by felons. Because the challenge was unlikely to succeed, Divos could not show he was harmed by his attorney not raising it. There was no dissent noted in the opinion. The court also granted appellate counsel's motion to withdraw and denied the government's motion for summary affirmance as moot after issuing its ruling.
CITATION AND RECORD
Record source: CourtListener
United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-1616 ___________________________ Linder Kai Divos lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee ____________ Appeal from United States District Court for the Southern District of Iowa - Central ____________ Submitted: July 15, 2026 Filed: July 20, 2026 [Unpublished] ____________ Before SHEPHERD, BENTON, and KELLY, Circuit Judges. ____________ PER CURIAM. Linder Divos appeals the district court’s1 denial of his 28 U.S.C. § 2255 motion following his guilty plea to possessing with the intent to distribute fentanyl and being 1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa. a felon in possession of a firearm. The district court granted a certificate of appealability as to Divos’s claim that his plea counsel should have challenged his felon-in-possession charge based on New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 70-71 (2022) (requirement that applicant for license to carry firearm show special need for self-defense violated Second Amendment), and reserved in his plea agreement his right to press such a challenge. Appellate counsel has moved to withdraw, and the government seeks summary affirmance. Upon careful review, we conclude that the district court did not err in denying section 2255 relief. See Deltoro-Aguilera v. United States, 625 F.3d 434, 436 (8th Cir. 2010) (standard of review). The record squarely shows that any Bruen defense stood little chance of success given the legal landscape at the time of Divos’s plea, and plea counsel was not constitutionally obliged to raise arguments in tension with settled authority. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (in context of plea- related ineffective-assistance claim based on failure to advise of defense, prejudice inquiry largely depends on whether defense would have succeeded); Anderson v. United States, 762 F.3d 787, 794 (8th Cir. 2014) (counsel does not perform deficiently by failing to object to correct application of settled law within circuit or failing to anticipate change in law); see also United States v. Jackson, 110 F.4th 1120, 1125-29 (8th Cir. 2024) (Bruen did not disturb prior Supreme Court statements concerning longstanding prohibitions on possession of firearms by felons). Accordingly, we grant appellate counsel’s motion to withdraw, affirm the judgment, and deny as moot the government’s motion for summary affirmance. ______________________________ -2-
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