Dameron v. United States, 73-2778.

• Citation: 488 F.2d 724
• Decision Date: 23 January 1974
• Docket Number: No. 73-2778.,73-2778.
• Parties: James R. DAMERON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

488 F.2d 724 (1974)

James R. DAMERON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 73-2778.

United States Court of Appeals, Fifth Circuit.

January 23, 1974.

Cecil M. Burglass, Jr., New Orleans, La., for petitioner-appellant.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., Marshall Tamor Golding, Asst. U. S. Atty., U. S. Dept. of Justice, Washington, D. C., for respondent-appellee.

Before TUTTLE, GEWIN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

We hold that a person can successfully attack collaterally a conviction under 18 U.S.C.A. § 922(g) (1) for interstate transportation of a firearm by a convicted felon when his counselless state felony conviction has been subsequently voided under the constitutional principles of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Dameron was convicted of transporting a .38 caliber Derringer pistol in interstate commerce from Louisiana to Natchez, Mississippi in June, 1970, in violation of Section 922(g)(1) which provides:

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 ship or transport any firearm or ammunition in interstate or foreign commerce.

Dameron had been previously convicted on a guilty plea of burglary and grand larceny in Arkansas in 1951 and had fully served his time for those offenses.

After his arrest in June, 1970 but before his indictment in January, 1971 on the federal firearms charge, Dameron received a full pardon from the Governor of Arkansas for his prior state offenses. He was nevertheless tried and convicted by a jury of this federal charge on the basis of the state convictions, and was sentenced to five years imprisonment. This Court affirmed his conviction holding that the subsequent pardon did not alter his status as a convicted felon at the time that he transported the firearm. United States v. Dameron, 460 F.2d 294 (5th Cir.), cert. denied, 409 U.S. 882, 93 S.Ct. 168, 34 L. Ed.2d 137 (1972).

The statutory prohibition was triggered by his status as a convicted felon, a status which did not change until the pardon was received. The pardon simply came too late to save appellant from this charge. Compare United States v. Liles, 432 F.2d 18 (9th Cir. 1970).

460 F.2d at p. 295.

Subsequently, following Arkansas procedure, defendant obtained an order from the state court in which he was previously convicted setting aside his 1951 state convictions ab initio on the federal constitutional ground that his convictions were based upon uncounseled guilty pleas.

Thereafter petitioner filed this 28 U. S.C.A. § 2255 motion asking that his federal firearms conviction be set aside on the ground that it was predicated upon unconstitutional prior state convictions. The District Court, holding that the subsequent state order did not alter Dameron's status at the time he transported the firearm, any more than had the subsequent pardon from the Governor, denied the motion. We reverse.

Apparently conceding that if the state action voiding the convictions had preceded the transportation of the firearm, no crime could have been committed under Section 922(g)(1), the Government contends that a person, once having been convicted of a felony, cannot carry a firearm in interstate commerce without violating the federal firearms statute until he has obtained an official expungement of that past conviction. The Government argues, in effect, that after February 19, 1973 when the state court order was entered voiding the conviction, Dameron could carry a firearm in interstate commerce without offending Section 922(g)(1), but before that date he could not.

The Government recognizes that the only three circuits of the United States Court of Appeals presented with this precise question have, in effect, decided contrary to the Government's position.

In Pasterchik v. United States, 466 F.2d 1367 (9th Cir. 1972), the Ninth Circuit vacated a conviction under 15 U.S.C. § 902(e) (1964).¹ Promptly after the prior state conviction which supported the federal conviction for interstate transportation of a firearm by a felon had been vacated on constitutional grounds, the defendant raised the point in a 28 U.S.C.A. § 2255 motion.²

McHenry v. California, 447 F.2d 470 (9th Cir. 1971), involved a petition for writ of habeas corpus from a state prisoner who had been convicted under a California law prohibiting possession of a concealed weapon by a person who had been convicted of a felony. After an evidentiary hearing, the District Court concluded that certain rights guaranteed to McHenry under the federal Constitution had been infringed to such an extent that the prior felony conviction was void. The Ninth Circuit held that California therefore was required to release the defendant from the firearms conviction unless it retried and convicted him of the prior felony charge. Judge Wright dissented on the ground that the case was indistinguishable from United States v. Liles, 432 F.2d 18 (9th Cir. 1970).³

In United States v. Thoresen, 428 F. 2d 654 (9th Cir. 1970), the Ninth Circuit considered a direct appeal in which, after being indicted under 15 U.S.C. § 902(e) (1964), the defendant had attempted to establish the invalidity of a prior Maine felony conviction in both state and federal courts in Maine. Relief had been denied, however, because defendant was not "in custody." The Court held that Thoresen was entitled to an opportunity, at the trial on the federal firearms charge, to negate an essential element of the crime by establishing the constitutional invalidity of the underlying Maine conviction.

United States v. Lufman, 457 F.2d 165 (7th Cir. 1972), was a direct appeal from a conviction under 18 U.S.C.A. App. § 1202(a) for possession of a fire-arm by a convicted felon. The defendant argued as a defense that the conviction asserted by the Government as proof of his status as a convicted felon was constitutionally void under Gideon. The Seventh Circuit held that, since the prior conviction was constitutionally void at its inception, Lufman was not a convicted felon at the time of possession and the use of such a conviction in a proceeding under Section 1202(a) was reversible error. It distinguished United States v. Liles, supra, on the ground that Liles' conviction "was not void `at its incipiency,' but voidable, since it was pending determination on appeal, and its subsequent reversal was not based on a finding of constitutional defect." 457 F.2d at p. 168.

In United States v. DuShane, 435 F.2d 187 (2d Cir. 1970), the Second Circuit considered the constitutional defects in the Oklahoma conviction which was an "integral part of the crime" charged under 15 U.S.C. § 902(e) (1964). The Court held that the parties correctly assumed that a constitutionally invalid prior conviction could not be the basis of a conviction under Section 902(e).

The Government does not seek to distinguish these cases, but argues that their holdings are based upon a misunderstanding of the relevant considerations and hence should not be followed. The Government contends that the statute is not punitive, but merely classifies those persons who may not transport firearms in interstate commerce, as a matter of legislative gun control. It makes a two-pronged argument: that the legislative intent requires official expungement of past convictions as a precondition to lawful access to firearms and that there is no constitutional impediment to effectuate that intent.

The Government would have us read Section 922(g)(1) to make unlawful interstate transportation of firearms by any person who has an existing, unexpunged record of a felony conviction, whether constitutionally or unconstitutionally obtained. We need not reach the Government's argument that there is no constitutional impediment to such a provision. Nor need we look further than the statute to determine legislative intent. The statute should explicitly set forth application to unconstitutional convictions, if it is so intended. We read the statute to prohibit the interstate transportation of firearms by those who have been constitutionally convicted of a...