Burrell v. U.S.

• Decision Date: 14 September 2004
• Docket Number: Docket No. 02-2584.
• Citation: 384 F.3d 22
• Parties: Andrew BURRELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

384 F.3d 22

Andrew BURRELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Docket No. 02-2584.

United States Court of Appeals, Second Circuit.

Argued: February 10, 2004.

Decided: September 14, 2004.

Appeal from the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., J.

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Tina Schneider, Portland, Maine, for Petitioner-Appellant.

Paul T. Weinstein, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, New York, for Respondent-Appellee.

Before: JACOBS, SACK, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge:

Andrew Burrell, who was convicted in 1995 after a jury trial in the Eastern District of New York (Sterling Johnson, Jr., Judge) of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1); United States v. Burrell, No. 93-CR-319 (E.D.N.Y. Sept. 6, 1995), now appeals from that same court's judgment entered August 22, 2002, denying his motion to vacate his 1995 conviction pursuant to 28 U.S.C. § 2255, see Burrell v. United States, No. 97-CV-7358 (SJ), 2002 U.S. Dist. LEXIS 18195 (E.D.N.Y. Aug. 19, 2002). Although Burrell has completed serving a ten-year term of incarceration for his § 922(g)(1) crime, because he is a Jamaican national, he is presently detained awaiting deportation based in part on that 1995 conviction. On July 30, 2003, upon Burrell's motion and the government's consent, we granted a stay of deportation pending resolution of this appeal.

Burrell submits that his conviction should be vacated because he is actually innocent of the § 922(g)(1) conviction. Specifically, he submits that the Connecticut judgment relied on by the prosecution to establish the requisite predicate felony was based on a guilty plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970),¹ and that Connecticut does not recognize such judgments as convictions. We affirm the district court's conclusion that a Connecticut judgment pursuant to an Alford plea can qualify as a predicate felony conviction for purposes of § 922(g)(1).²

Background

I. The Connecticut Alford Plea

On August 8, 1990, Andrew Burrell pleaded guilty in Connecticut Superior Court for Fairfield County to charges of third-degree assault in violation of Conn. Gen.Stat. § 53a-61, and possession of a weapon in a motor vehicle in violation of Conn. Gen.Stat. § 29-38. See Trans. of Plea Proceeding, at 3, State v. Burrell, Nos. CR90-52481, CR90-52482 (Conn.Super.Ct. Aug. 8, 1990). Burrell's counsel specified on the record that the pleas were entered pursuant to the "Alford Doctrine." Id. During the colloquy, the court recited the facts alleged by the state:

THE COURT: The allegation is that you followed her, the victim, got out of the car, she thought [you] had a weapon on her, got her into the car, assaulted her. She called the police. The police went to the location, found the car. In the car they found the weapon. Is that basically it?

[COUNSEL]: That is correct, your Honor.

THE COURT: Mr. Burrell, as to those allegations, you may not be admitting all of those allegations, but are you entering your plea, freely, intelligently, and voluntarily because it is your opinion that if we were to try this case, you'd probably be convicted, and if convicted, you'd face a more severe punishment. Is that why you're pleading guilty, sir?

MR. BURRELL: Yes, sir.

Id. at 3-4. The court thereupon sentenced Burrell to two concurrent one-year terms of incarceration, which it suspended in favor of two one-year concurrent terms of probation. See id. at 4.

II. The Federal § 922(g)(1) Conviction

Some two and one-half years later, on March 10, 1993, Burrell and a confederate, Shane Stennett, who were then targets of an undercover narcotics investigation, were arrested in Brooklyn, New York, in possession of loaded firearms. Charged with various narcotics and firearms crimes, Stennett pleaded guilty soon after jury selection, while Burrell proceeded to trial. On December 29, 1993, the jury reported that it was deadlocked on all counts except the charge that Burrell was a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), on which it found him guilty.

After a number of adjournments, Burrell was sentenced on August 30, 1995, to the maximum ten-year term of incarceration applicable to § 922(g)(1) violations. See 18 U.S.C. § 924(a)(2).³ This court affirmed Burrell's conviction and sentence by summary order dated May 6, 1996. See United States v. Burrell, No. 95-1520, 1996 U.S.App. LEXIS 10447, at *1 (2d Cir. May 6, 1996).

III. Burrell's § 2255 Challenge to His Federal Conviction

On December 6, 1997, Burrell moved to vacate his federal conviction pursuant to 28 U.S.C. § 2255 on the ground that his trial counsel was constitutionally ineffective. See Burrell v. United States, 2002 U.S. Dist. LEXIS 18195, at *4-*5. While this motion was pending, Burrell pursued a successful challenge to his 1990 state conviction in the Connecticut Superior Court. See State v. Burrell, No. CR90-52481 (Conn.Super. Ct. June 22, 1999).⁴ With the state predicate felony conviction thus vacated, Burrell amended his § 2255 motion on July 21, 1999, to assert that he was therefore actually innocent of the § 922(g)(1) offense. Thereafter, Burrell supplemented his § 2255 motion twice more. In a submission styled an "Addendum" to his § 2255 motion and dated August 1, 2000, Burrell urged as another ground demonstrating actual innocence the fact that his judgment of conviction was based on an Alford plea. The following month, Burrell attempted to add an Apprendi challenge to judicial fact-finding at sentencing by filing a "Motion For Expansion of the Record Pursuant to Rule 7 of the Rules Governing § 2255 Proceedings." See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On February 8, 2001, the district court denied Burrell's ineffective assistance and first actual-innocence claim. See Burrell v. United States, No. 97-CV-7358 (SJ) (E.D.N.Y. Feb. 8, 2001). On appeal, this court, in an unpublished order, granted a certificate of appealability for the "limited purpose" of remanding the case back to the district court for its consideration of Burrell's motion to relieve counsel, his second actual-innocence claim, and his Apprendi challenge, provided the court found the latter claim properly raised. Burrell v. United States, No. 01-2118 (2d Cir. July 11, 2001).

By order dated March 19, 2002, the district court assigned Burrell new counsel and, after receiving further briefing, issued a detailed memorandum and order dated August 19, 2002, which (1) rejected Burrell's argument that an Alford plea did not result in a Connecticut conviction that could qualify as the necessary felony predicate for § 922(g)(1); and (2) concluded that Burrell's Apprendi challenge was barred by Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) and, in any event, was without merit. See Burrell v. United States, 2002 U.S. Dist. LEXIS 18195. The district court granted Burrell a certificate of appealability on the first issue.⁵ Discussion

I. Standard of Review

This court reviews the district court's denial of a § 2255 motion de novo. See Kaminski v. United States, 339 F.3d 84, 86 (2d Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 948, 157 L.Ed.2d 762 (2003). Specifically, it considers de novo the district court's conclusion that judgments based on Alford pleas qualify as convictions under Connecticut law and, therefore, as predicates for § 922(g)(1). See Chang v. United States, 250 F.3d 79, 82 (2d Cir.2001) (questions of law raised in § 2255 motion are reviewed de novo).

Preliminarily, we note that because Burrell's Alford-based challenge is raised in support of a claim of actual innocence, Burrell is excused from any procedural default of this argument on direct appeal. See Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (citing Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). This is significant because Burrell could have raised this challenge at any time in his federal prosecution, even before his 1990 Connecticut conviction was vacated. Thus, we conclude that he could not show good cause to excuse his default and that only the claim of actual innocence allows his challenge to be heard. See generally Dretke v. Haley, ___ U.S. ___, ___, 124 S.Ct. 1847, 1852, ___ L.Ed.2d ___, ___ (2004) (holding that "a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default").

II. The Federal Prohibition on Firearms Possession by Convicted Felons

Title 18 U.S.C. § 922(g) states, in pertinent part: "It shall be unlawful for any person — (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm or ammunition...." As the Supreme Court has explained, this proscription was one of several measures enacted by Congress to "prohibit [] categories of presumptively dangerous persons" from possessing firearms. Lewis v. United States, 445 U.S. 55, 64, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).⁶ In determining whether a defendant "has been convicted" of the predicate felony required by § 922(g)(1), the determinate factor is defendant's criminal record at the time of the charged possession. As this court has observed, it is the "mere fact of [a prior] conviction" at the time of the charged possession, not the "reliability" of the conviction, that establishes the § 922(g)(1) predicate. Bonfiglio v. Hodden, 770 F.2d 301, 306 (2d Cir.1985) (internal quotation marks omitted). Thus, a § 922(g)(1)...