Opinion
Civil No. 00-1571 (JRT), Criminal No. 97-225 (JRT/AJB)
September 10, 2002
Jordan S. Kushner, Law Office of Jordan S. Kushner, Minneapolis, MN, for petitioner.
David P. Steinkamp, Assistant United States Attorney, Office of The United States Attorney, Minneapolis, MN, for respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING PETITIONER'S § 2255 MOTION
Petitioner George Olbert Hood has moved to vacate, set aside, or otherwise correct his sentence pursuant to 28 U.S.C. § 2255. The Court has held an evidentiary hearing on petitioner's allegation of ineffective assistance of counsel. Specifically, petitioner argues that his trial counsel was ineffective in failing to investigate and raise the issue that petitioner's civil rights had been restored without any restriction on his possession of firearms, thereby precluding that conviction from satisfying the predicate offense for his conviction under 18 U.S.C. § 922(g). Based on the following Findings of Fact and Conclusions of Law, the motion is granted.
FINDINGS OF FACT
1. All of the Findings of Fact set forth herein are undisputed or have been proven by a preponderance of the evidence.
2. To the extent the Court's Conclusions of Law include what may be considered Findings of Fact, they are incorporated herein by reference.
I. Procedural History
3. On October 8, 1997, petitioner was charged by superseding indictment with one count of being a felon in possession of ammunition and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
4. A jury trial commenced on January 5, 1998. At trial, the parties stipulated that petitioner was convicted of a crime punishable by a term exceeding one year. Trial Trans. at 368:13-15. The predicate felony is a conviction for Criminal Sexual Conduct in the state district court in Minnesota in 1986.
5. On January 7, 1998, the jury found petitioner guilty on both counts of the indictment. On July 15, 1998, petitioner was sentenced to a 77-month term of imprisonment on each count, to run concurrently, followed by three years of supervised release. Petitioner appealed his conviction, which was affirmed by the Eighth Circuit on July 1, 1999. United States v. Hood, 183 F.3d 744 (8th Cir. 1999)
6. On June 8, 2000, petitioner filed a petition for extraordinary writ and judicial notice pursuant to Federal Rules of Evidence 201 with the Eighth Circuit Court of Appeals. On June 15, 2000, the Eighth Circuit issued a judgment, dismissing the petition and stating that the "petition should be treated as a motion for relief under 28 U.S.C. § 2255 and presented to the district court in the first instance."
7. On June 9, 2000, the Eighth Circuit received notice that petitioner had filed a petition for a writ of certiorari with the United States Supreme Court on September 29, 1999. The Supreme Court denied the petition for a writ of certiorari on October 16, 2001.
8. On February 7, 2001, the Court ordered that petitioner be appointed counsel and directed counsel to submit a reply to the government's response to petitioner's motion, which counsel did on April 13, 2001.
9. On August 21, 2001, the Court issued an order scheduling an evidentiary hearing on petitioner's ineffective assistance of counsel claim. The Court held a hearing on September 21, 2001, but it was continued after petitioner discharged his attorney.
10. The Court subsequently appointed another attorney to represent petitioner and an evidentiary hearing was held on May 15, 2002.
II. Evidentiary Hearing
11. At the hearing, petitioner called two witnesses — petitioner's trial counsel and Daniel M. Scott. Petitioner also admitted into evidence the Certificate of Discharge and Restoration to Civil Rights he received in December 1989 upon discharge of the 1986 conviction in question. The document does not contain any restrictions on petitioner's right to possess firearms. It reads in full:
This is to certify that George O. Hood who was on the 7th day of [July], 1986 sentenced to the Commissioner of Corrections by the District Court of Hennepin County, has completed such sentence and is hereby discharged this 3rd day of December 1989; and that pursuant to Minnesota Statutes, Section 609.165 the said George O. Hood is hereby restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.
12. Petitioner's trial counsel admitted that he did not seek to obtain or review the public document restoring petitioner's civil rights.
13. After conferring with his client, trial counsel proceeded to trial on the claim that petitioner did not knowingly possess the firearm or ammunition in question. Trial counsel also testified that petitioner was a difficult client to communicate with.
14. Daniel Scott, the Federal Public Defender for the District of Minnesota, testified as an expert witness. Mr. Scott has been the chief Federal Public Defender since August 1978. From 1973-78, he worked as an Assistant United States Attorney. He has handled hundreds of federal firearms cases and has tried in excess of 30 cases involving firearm offenses to a jury. Mr. Scott's responsibilities as the Federal Public Defender include supervising seven attorneys in his office, appointing hundreds of attorneys on the CJA panel, and carrying his own caseload. He has also taught seminars to panel lawyers and to lawyers in private practice concerning the federal firearm statute and has taught and consulted attorneys on issues of competent representation.
15. Mr. Scott testified that making reasonable attempts to investigate the evidence relating to all elements of a criminal charge and reviewing the statutes and conducting legal research on how to define the elements are fundamental obligations of a criminal defense attorney.
16. Specifically, he stated that a competent criminal defense attorney will do legal and factual research to consider whether or not the government can prove the first element of the offense, which is whether the person is a prohibited person. This involves researching the applicable law pertaining to the restoration of civil rights, reviewing what the applicable restoration of civil rights statutes provide, what type of notification is required, and what kind of notification the client received.
17. Mr. Scott also testified that it is a competent defense attorney's responsibility to obtain the restoration of civil rights document. Since the provisions of the restoration of civil rights are part of an element of the charged offense, the lack of any firearms restrictions in a restoration order is an important issue to raise in defense. Mr. Scott opined that the lack of an express restriction in petitioner's discharge order was a defense that was essential to raise because Minnesota state law, which plays an important role in the federal law for this offense, has statutory provisions requiring that notice of firearm restrictions be included in the restoration of civil rights. Mr. Scott also noted that there is a split in the circuit courts over whether the notification of firearm restrictions must be provided in the discharge order itself, thus making it necessary to raise this issue.
18. Finally, Mr. Scott testified that the issue of whether someone is a prohibited person under the first element of § 922(g)(1) is independent of any legal defense concerning possession or other arguments that may be presented to a jury.
CONCLUSIONS OF LAW
In a proceeding under 28 U.S.C. § 2255, petitioner bears the burden of proof upon each ground presented for relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970).
I. Ineffective Assistance of Counsel
The Sixth Amendment guarantees that an accused shall have "the Assistance of Counsel for his defense." U.S. Const. amend. VI. This constitutional guarantee requires that counsel be sufficiently effective in playing the role necessary to ensure a fair trial. Strickland v. Washington, 466 U.S. 668, 685-86 (1984).
To prevail on a claim of ineffective assistance of counsel, petitioner must show both that his counsel's performance was deficient, and that the deficient performance prejudiced his defense. Id. at 687. The performance standard is whether counsel's assistance was reasonable considering all of the circumstances, and petitioner must overcome a presumption that the challenged action was reasonable. Id. at 688-89. To meet the prejudice prong of the test, petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 695.
In this case, petitioner argues that his trial counsel was ineffective in failing to investigate and raise a claim that, because his civil rights had been restored by a certificate of discharge that did not expressly restrict his right to possess firearms, his 1986 conviction cannot count for purposes of convicting him under § 922(g). Petitioner further claims that he was prejudiced by counsel's failure to raise this claim because, without use of the conviction, the government could not have established an essential element of its claim against him, thus requiring dismissal of the indictment. For the reasons that follow, the Court agrees with petitioner.
A. Deficient Performance
Petitioner has carried his burden that his trial counsel's failure to address the issue of petitioner's restoration of civil rights falls below an objective standard of reasonableness. The testimony presented at the evidentiary hearing establishes that trial counsel failed to make a reasonable investigation into the first element of the offense. Petitioner's trial counsel admitted that he did not make any attempt to locate the certificate of discharge restoring his civil rights, a document which was readily available as a public record. The failure to investigate this issue was unreasonable. The issue in question is part of the plain language of the statutory definition of one of the elements of the charged offense: the defendant must have been convicted of a crime punishable by a term exceeding one year. The statutory definition of this element in § 921(a)(20) expressly excludes persons whose rights have been restored, "unless . . . such restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." By failing to investigate whether petitioner's civil rights were restored, and, more importantly, whether the restoration contained any prohibition, his trial counsel failed to investigate one of the statutory elements of the charged offense.
The Court also credits the expert testimony of Daniel Scott, whose testimony further establishes that counsel's failure to investigate the conditions of petitioner's restoration of civil rights fell below an objective standard of reasonableness. He testified that a competent criminal defense attorney is obligated to perform legal and factual research into whether or not the government can prove the first element of the offense. This involves looking at whether the defendant's civil rights have been restored under § 921(a)(20), looking at state law to determine what civil rights the state restores and what type of notification is required in connection with such restoration. Moreover, he testified this research is independent of any defense of possession or other elements of the crime. In this case, although petitioner's trial counsel was familiar with the law in this area, a reasonable investigation into recent caselaw would have revealed that the issue concerning notification of firearm restrictions was in flux and created a strong legal issue to raise with the court.
The Court notes the obvious difficulty that successive trial and appellate counsel have had communicating effectively with the defendant. Although this fact does not change the result of this action, the Court is sympathetic.
The government's attempt to characterize trial counsel's error, if any, as one of trial strategy, is unpersuasive. Strickland, 466 U.S. at 689 (explaining that defendant must overcome presumption on ineffectiveness claim that counsel's challenged action "might be considered sound trial strategy"). The government contends that it would have been inconsistent for petitioner's trial counsel to assert on the one hand that he did not knowingly possess the firearm, but on the other, to claim that his client had the right to possess a firearm pursuant to the restoration certificate. The Court finds this line of inquiry irrelevant for purposes of the claim raised in this petition. As Mr. Scott testified, the issue of whether or not petitioner is a prohibited person under the first element of § 922(g)(1) is a legal matter for the Court to decide either in a pretrial motion to dismiss the indictment or at the close of the government's case. The issue is not one of trial strategy.
B. Prejudice
Having concluded that counsel's performance was deficient, the Court must next determine whether there is a reasonable probability that, but for counsel's defective performance, the result of the proceedings would have been different. Under the facts of this case, this requires petitioner to show there is a reasonable probability that he would have prevailed in demonstrating he was not a prohibited person for purposes of conviction under § 922(g).
18 U.S.C. § 922(g) makes it unlawful for "any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; . . . to possess in or affecting commerce, any firearm or ammunition." Section 921(a)(20) defines what constitutes a "crime punishable by imprisonment for a term exceeding one year" as follows:
What constitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.18 U.S.C. § 921(a)(20). The government contends that petitioner would not have prevailed on his defense even if it had been raised by trial counsel. Specifically, the government argues that because petitioner had been convicted of a violent crime and was charged with possessing a pistol, Minnesota law prohibited him from possessing firearms for ten years. Minn. Stat. § 624.713 subd. 1(b) (1975). Several Eighth Circuit decisions had concluded that a prior conviction still counts for purposes of § 921(a)(20) if state law prohibits the defendant from possessing firearms. United States v. Traxel, 914 F.2d 119, 124 (8th Cir. 1990); United States v. Ellis, 949 F.2d 952 (8th Cir. 1991).
The statute provides in relevant part:
The following persons shall not be entitled to possess a pistol: . . . (b) a person who has been convicted in this state or elsewhere of a crime of violence unless ten years have elapsed since the person has been restored to civil rights or the sentence has expired, whichever occurs first, and during that time the person has not been convicted of any other crime of violence.
Despite the prohibition under § 624.713, the question remains whether the fact that state law generally proscribes firearm possession is sufficient when a defendant receives a certificate of discharge from the state telling him unconditionally that his civil rights are restored. Traxel did not address this specific issue. United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994) ("Traxel, the eighth circuit's first encounter with the interaction between § 921(a)(20) and Minnesota law, did not discuss the effect of the certificate Minnesota hands to discharged prisoners."). This notification requirement is at the heart of the issue raised in this petition and, as the discussion below demonstrates, has created a deep division among the courts.
At the time of Hood's prosecution in 1997, the issue of what type of notification is required for purposes of § 921(a)(20) was far from settled. The Eighth Circuit had addressed the notification issue in Davis v. United States, 972 F.2d 227 (8th Cir. 1992). In Davis, the defendant argued that his discharge order nullified his Nebraska conviction under § 921(a)(20) because the certificate did not "expressly provide that he could not ship, transport, possess, or receive firearms." Id. at 230. With only the briefest of analysis, the Eighth Circuit rejected this argument, stating that "every other circuit that has squarely faced this contention has rejected it." Id. at 231. The Court cited decisions from the Fourth, Sixth and Tenth Circuits to support its conclusion that a court must look to the "whole law of the State that has restored some rights, and not simply the ambiguous piece of paper evidencing that restoration." Id. (citing United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); United States v. McLean, 904 F.2d 216 (4th Cir. 1990); United States v. Burns, 934 F.2d 1157 (10th Cir. 1991)).
The issue was also addressed in another Eighth Circuit decision, United States v. Wind, 986 F.2d 1248 (8th Cir. 1993). In that case, Judge McMillian concluded that the defendant's 1987 conviction could not count for purposes of sentence enhancement because "the order of discharge did not expressly exclude from the restoration of civil rights the right to possess firearms." Id. at 1252. In a special concurring opinion, Judge Magill held that the 1987 conviction did not count on different grounds, namely that § 624.713, subd. 1(b) does not prohibit felons possessing rifles. Id. (Magill, J. joined by Hansen. J). The holding in the special concurrence has been subject to some criticism, however. At the time of defendant's discharge in 1990, the 1987 amendment to Minn. Stat. § 609.165 prohibited felons convicted of violent crimes from possessing any firearm. Glaser, 14 F.3d 1213, 1217 n. 2.
Since Davis, however, the Seventh, Fifth, Ninth, and D.C. Circuit courts have all rejected the "whole of state law approach" as contrary to basic due process considerations and the plain language of the statutes in question. United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994); United States v. Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Herron, 45 F.3d 340 (9th Cir. 1995); United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996). In Glaser, the Seventh Circuit reviewed a felon in possession of a firearm conviction, based on a felony conviction in Minnesota. 14 F.3d at 1214. In that case, as here, the defendant received a document restoring his civil rights which did not contain any specific clause restricting firearms in accordance with 18 U.S.C. § 921(a)(20) and Minn. Stat. § 609.165, subd. 1a. Id. at 1215-16. The court held that when a state dispenses a document purporting to restore all civil rights and fails to include a specific restriction on possession of weapons, the conviction does not count as a felony for purposes of § 921(a)(20). Id. at 1217-19. Indeed, the plain language of the statute requires such express notification. 18 U.S.C. § 921(a)(20) (providing that a conviction for which civil rights have been restored does not count for purposes of § 922(g) unless such restoration expressly provides that the person may not possess firearms) (emphasis added). As the court explained:
The second sentence of § 921(a)(20) is an anti-mouse-trapping rule. If the state sends the felon a piece of paper implying that he is no longer "convicted" and that all civil rights have been restored, a reservation in a corner of the state's penal code can not be the basis of a federal prosecution. A state must tell the felon point blank that weapons are not kosher. The final sentence of § 921(a)(20) cannot logically mean that the state may dole out an apparently — unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self-destruct. It must mean, therefore, that the state sometimes must tell the felon that under state law he is not entitled to carry guns, else § 922(g) does not apply.
Id. at 1215 (quoting United States v. Erwin, 902 F.2d 510, 512 (7th Cir. 1990)).
Likewise, in United States v. Herron, the defendant was convicted of second degree burglary in Washington state court. 45 F.3d at 340. Upon completion of his sentence, he received a "Certificate and Order of Discharge" which fully restored his civil rights. Id. Like the certificate of discharge in this case, the document said nothing about firearms. Id. at 341 n. 1. The district court granted defendant's motion to dismiss on the basis that his prior conviction could not count for purposes of § 921(a)(20) and the Ninth Circuit affirmed. Id. at 341. The court began its analysis with a review of the statutory language in question. The Court stated:
Herron's civil rights were restored by the certificate. That means he could not be guilty of the crime unless the exception to the exception, "unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms," applied. It does not. The document restoring Herron's civil rights is quoted in full above, and does not expressly provide for firearms restrictions. That should be the end of the case.
Id. at 341. Nonetheless, the court proceeded to address the government's argument that the court should "look to the whole of state law" in determining whether the exception to the exception provided in § 921(a)(20) applied. Id. at 341-42. Like this case, Washington law prohibited persons previously convicted of a crime of violence from possessing a "short firearm or pistol." Id. at 342. The court rejected the government's "whole of state law" approach, concluding that such a reading would trigger due process concerns: "It would imply that even if the state told the felon that his civil rights were fully restored, the federal government could convict on the basis that the state misinformed him." Id. Although the court noted that the Fourth and Sixth Circuits agreed with the government's approach, the court expressly rejected these decisions in favor of decisions from the Fifth and Seventh Circuits:
We follow the Fifth and Seventh Circuits. We cannot reconcile the Sixth Circuit's position with the language of the statute, particularly the word "such." By that word, Congress tells us what to read in order to determine whether a felon's civil rights restoration made an exception for firearms. The words "expressly provides" tell us what to look for. This plain, literal interpretation comports better with fairness than the alternative [whole of state law] approach, by requiring the state to give the felon fair notice if his restoration of civil rights makes an exception for firearms.
Id. at 343. In United States v. Bost, the D.C. Circuit noted the division of authority in the circuit courts but sided with the holdings in Glazer, Herron and Thomas as being most consistent with the statutory language of § 921(a)(20). 87 F.3d at 1135-38.
The result arrived at by the Seventh, Ninth, Fifth and D.C. Circuit courts is entirely consistent with the plain language of the governing statutes. In no uncertain terms, § 921(a)(20) provides that "any conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." (Emphasis added.) In 1987, the Minnesota legislature responded to Congress's amendment of § 921(a)(20) by enacting Minn. Stat. § 609.165, subd. 1a, which provides that:
The order of discharge must provide that a person who has been convicted of a crime of violence. . . . is not entitled to ship, transport, possess, or receive a firearm until ten years have elapsed since the person was restored to civil rights and during that time the person was not convicted of any other crime of violence. . . .
(Emphasis added.) See also State v. Moon, 463 N.W.2d 517, 519 (Minn. 1990). The Eighth Circuit previously addressed the notification issue in Davis. However, as outlined above, the legal landscape has changed considerably since the Eighth Circuit first visited the issue. While at the time the courts were in uniform agreement, such was not the case by the time Hood was prosecuted in 1997. Consequently, the central underpinning of the court's decision in Davis — the uniformity of circuit law — no longer holds true. Thus, it is not entirely clear to the Court how the Eighth Circuit would rule if squarely confronted today with this issue and with all the relevant caselaw.
In the Court's view, the decisions of the Seventh, Fifth, Ninth and D.C. Circuits are most consistent with the plain language of the statutes and represent the clear trend in authority on this issue. As the Ninth Circuit has explained, in states which restore a felon's civil rights by certificate, the "whole of state law" approach "cannot be reconciled with the language of the statute, particularly the word `such' [in the last sentence of section 921(a)(20)]. By that word, Congress tells us what to read in order to determine whether a felon's civil rights restoration made an exception for firearms." Herron, 45 F.3d at 342-43. The Fifth Circuit has likewise observed the difficulty in squaring the whole of state law approach with the unambiguous language of § 921(a)(20), "which declares that a conviction for which a person had civil rights restored cannot serve as the predicate for a conviction under § 922(g) `unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.'" Thomas, 991 F.2d at 213 (quoting § 921(a)(20) (emphasis in original)). Finally, the Seventh Circuit perhaps said it most succinctly when it described § 921(a)(20) as an "anti-mouse trapping" rule: "The final sentence of § 921(a)(20) cannot logically mean that the state may dole out an apparently — unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns." Glaser, 14 F.3d at 1215. It is the Congress that has clearly required an express provision of a firearms restriction in the written restoration of civil rights. The "whole of state law" approach simply does not comport with the Congressional mandate. The decisions of these courts and the plain language of § 921(a)(20) is most consistent with due process and the fundamental principle that a defendant be given fair notice if his restoration of civil rights excludes the right to possess firearms.
In this case, there is no dispute that petitioner did not receive any express notification restricting his right to possess firearms in the certificate of discharge he received from the state of Minnesota in December 1989. The failure to provide such express notice runs afoul of the plain language of § 921(a)(20) and Minn. Stat. § 609.165, subd. 1(a). Thus, for all the foregoing reasons, the Court concludes there is a reasonable probability that the Court would have concluded that petitioner's predicate felony could not count for purposes of prosecution under § 922(g) had it been raised at trial. Accordingly, petitioner's motion under § 2255 is granted.
At the evidentiary hearing, the government submitted as an exhibit the conditions of petitioner's supervised release. The government notes that one of the conditions informs petitioner that he is not permitted to possess any type of firearm or dangerous weapon. To the extent the government claims this constituted notice to petitioner, the Court does not agree. This document sets forth the rules that apply while petitioner is on supervised release. There is no reason for petitioner to believe that these conditions would continue to apply after he was fully discharged and restored to all civil rights in December 1989.
ORDER
Based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that petitioner's § 2255 motion to vacate, set aside, or correct his sentence [Docket No. 71] is GRANTED and petitioner's sentence is hereby VACATED and SET ASIDE.