Miller v. U.S.

Full title: Miller v. United States

Court: United States District Court, N.D. Illinois

Date published: Jan 5, 2004

03 C 50471 (N.D. Ill. Jan. 5, 2004)

Opinion

03 C 50471.

January 5, 2004

MEMORANDUM OPINION AND ORDER

PHILIP REINHARD, District Judge

George Miller, a federal prisoner, filed a motion pursuant to 28 U.S.C. § 2255, raising the following issues: (1) that his trial counsel was ineffective for failing to argue that his 1992 felony conviction was not a prior conviction under 18 U.S.C. § 921(a)(20); (2) that 18 U.S.C. § 922(g) violates the Tenth Amendment; and (3) that section 922(g) violates the Ninth Amendment because he has a right to bear arms under the Illinois Constitution that cannot be infringed by federal law.

Claim 1 is meritless because Miller had two other prior convictions, either of which would have supported his conviction under section 922(g). See United States v. Dahler, 143 F.3d 1084 (7^th Cir. 1998). Additionally, defendant did not have all his civil rights restored as to his 1992 conviction and, thus, it could provide the proper basis for his conviction under section 922(g). See United States v. Rutledge, 22 F. Supp. 2d 871, 882 (C.D. Ill. 1998), aff'd on other grounds, 230 F. 3d 1041 (7^th Cir. 2000). Because there was no proper basis to challenge his conviction on this ground, trial counsel was not ineffective for failing to do so, and claim 1 is therefore denied.

Claim 2, the challenge to Miller's conviction under the Tenth Amendment, is waived as he failed to raise it in either the trial court or on direct appeal. See United States v. Roehl, 977 F. 2d 375, 379 (7^th Cir. 1992). Nor has Miller asserted ineffective assistance of counsel as an excuse for the waiver. Even if he had, there is no Tenth Amendment violation, seeGillespie v. City of Indianapolis, 185 F. 3d 693, 704-07 (7^th Cir. 1999), and, therefore, he suffered no prejudice sufficient to support an ineffectiveness of counsel claim, seeRoehl, 977 F. 2d at 379.

As for Miller's alleged violation of the Ninth Amendment in claim 3, that is also waived because it was not raised in the trial court or on appeal. As to the merits, the Seventh Circuit has rejected a similar argument. Quilici v. Village of Morton Grove, 695 F. 2d 261, 271 (7^th Cir. 1981) (holding that the Ninth Amendment is not violated by a gun control ordinance because the Supreme Court has never held that any specific right, including the right to bear arms, is protected by the Ninth Amendment). Applying the rationale of Quilici to this case, Miller has not demonstrated a violation of the Ninth Amendment.

For the foregoing reasons, the court denies all of Miller's claims in his section 2255 motion and dismisses this cause in its entirety.