Hampton v. USA

• Decision Date: 12 August 1999
• Docket Number: No. 97-1782,97-1782
• Citation: 191 F.3d 695
• Parties: (6th Cir. 1999) Dushon Hampton, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 695

191 F.3d 695 (6th Cir. 1999)

Dushon Hampton, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 97-1782

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: August 12, 1999

Decided and Filed: October 12, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 96-74617--Horace W. Gilmore, District Judge.

Melvin Houston, Detroit, Michigan, for Appellant.

Dushon Hampton, Detroit, Michigan, Pro Se.

Jennifer J. Peregord, Diane L. Marion, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.

Before: NORRIS and SUHRHEINRICH, Circuit Judges; WEBER, District Judge^*.

SUHRHEINRICH, Circuit Judge.

Petitioner, Dushon Hampton, appeals judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. For the following reasons, we VACATE and REMAND for further proceedings.

I.

On October 17, 1994, a grand jury in the Eastern District of Michigan returned a three count indictment against Petitioner, charging him with various federal firearms violations. Count One charged unlicensed dealing in firearms, in violation of 18 U.S.C. § 922(a), specifically the unlawful sale of twenty handguns to an undercover federal agent. Count Two charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Count Three charged possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). On December 12, 1994, Petitioner entered a plea of guilty to Count Two of the indictment. Pursuant to the plea agreement, the other two counts were dismissed. On April 2, 1996, this court affirmed his conviction. See United States v. Hampton, No. 95-1354, 1996 WL 153916 (6th Cir. April 2, 1996).

The § 922(g) conviction was predicated on Petitioner's 1986 state conviction for attempted carrying of a concealed weapon in violation of Michigan Compiled Laws § 750.227. Petitioner does not contest that this was a felony conviction. See Mich. Comp. Laws §§ 750.227, 750.92. For the 1986 conviction, Petitioner was sentenced to one year of probation for the predicate offense and was discharged from such probation on May 8, 1987.

II.

Petitioner was sentenced to a term of 27 months on March 28, 1995. According to the Government, he was released from incarceration on April 2, 1997, and completed his supervised release term on April 2, 1999. Petitioner filed his petition on October4, 1996, while he was still incarcerated. Thus, although he is no longer imprisoned, Hampton has satisfied the "in custody" requirement. Where a prisoner's sentence is not fully expired at the time of filing, but expires during the litigation of the collateral attack, the proceeding does not become moot. See Maleng v. Cook, 490 U.S. 488, 491-92 (1989); Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir. 1993).

III.

The certificate of appealability order in this case certified this appeal based on "the issue of whether Petitioner's civil rights were restored for purposes of 18 U.S.C. §921(a)(20)(B) upon completion of his probation stemming from his conviction in state court under Mich. Comp. Laws § 750.227." Relying on United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), the district court found that Petitioner's civil rights were not so restored, but in raising the issue made a substantial showing of the denial of a constitutional right. By order, this court previously denied Petitioner's appeal for a certificate of appealability on any remaining issues. Hampton v. United States, No. 97-1782 (6th Cir. May 22, 1998).

Consistent with § 921(a)(20), Petitioner's earlier state conviction from 1986 was used as the basis for his subsequent charge that he violated § 922(g).¹ Section 922(g)(1) states that:

[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). Congress has, however, enacted an exception to this general rule turning on the definition of "conviction." Section 921(a)(20) provides that:

What constitutes a conviction of a 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). In other words, if Petitioner's rights were restored at the time he was charged with a violation of § 922(g), he could not be guilty of the charge, having failed to meet the definition of "conviction." Here, pursuant to §921(a)(20), this court looks to Michigan law to determine whether Petitioner was a convicted felon for purposes of section § 922(g)(1). The question turns on whether this court's 1992 decision in Driscoll, supra, is the controlling precedent in this circuit on the relevant Michigan law or whether the Michigan Court of Appeals 1994 decision in Froede v. Holland Ladder & Mfg. Co., 523 N.W.2d 849 (Mich. Ct. App. 1994), controls. Petitioner claims that Froede controls and that, as such, he cannot be guilty of a violation of § 922(g), thereby entitling him to relief under §2255.

IV.

Before reaching the merits of Petitioner's claim, we must consider whether his claim is defaulted. Petitioner plead guilty to the § 922(g) charge. He did not challenge his status as a felon for purposes of the charge on direct review. Petitioner raises that argument for the first time in these habeas corpus proceedings. As such, Petitioner's failure to challenge the validity of his plea on direct appeal causes his claim to be procedurally defaulted. In Bousley v. United States, 118 S. Ct. 1604, 1610 (1998), the Supreme Court explained that, in general, collateral attack on a guilty plea is precluded:

We have strictly limited the circumstances under which a guilty plea may be attacked on collateral review. "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546-2547, 81 L. Ed. 2d 437 (1984) (footnote omitted). And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and "'will not be allowed to do service for an appeal.'" Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300, 129 L. Ed. 2d 277 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 67 S. Ct. 1588, 1590-1591, 91 L.Ed. 1982 (1947)). Indeed, "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 2087, 60 L. Ed. 2d 634 (1979). In this case, petitioner contested his sentence on appeal, but did not challenge the validity of his plea. In failing to do so, petitioner procedurally defaulted the claim he now presses on us.

Id.

However, the Court continued, explaining that a petitioner could maintain his habeas claims but only if he could first demonstrate either: (1) that "cause" and "actual prejudice" existed to excuse his failure to raise the issue on direct appeal; or (2) "if he can establish that the constitutional error in his plea colloquy 'has probably resulted in the conviction of one who is actually innocent.'" Bousley, 118 S. Ct. at 1611 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). See also Luster v. United States, 168 F.3d 913, 914-15 (6th Cir. 1999) (explaining Bousley standard) . Although Petitioner is silent on the issue of procedural default, for purposes of the issue we construe his claim on the § 922(g) count as one that he is actually innocent of the charge.

Whether Petitioner can establish actual innocence on that count requires an analysis of the legal basis for Petitioner's collateral attack on the merits. If Froede controls, Petitioner is, indeed, actually innocent of the § 922(g) count. In other words, our determination of controlling Michigan law will determine whether the convicted felon element of § 922(g) is present and whether Petitioner is actually innocent of that portion of his original indictment.

V.

To begin the analysis, this Court must determine whether the state law of Michigan had restored all or essentially all of the defendant's civil rights. Our focus is particularly placed on the three civil rights considered key by the Sixth Circuit -- the right to vote, hold public office, and serve on a jury. See Driscoll, 970 F.2d at 1480 (determining that a "state restores the civil rights of felons if it allows them to vote, hold public office and serve on juries") .

Here, "Michigan law provides no statutory or constitutional definition of when restoration [of a convicted felon's rights] occurs." Lyons v. United States, 794 F.Supp. 238, 240 (E.D. Mich. 1992); United States v. Butler, 788 F.Supp. 944, 946 (E.D. Mich.1991). In fact, "Michigan does not have a general restoration statute." United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991). Although Michigan does not have a general restoration statute, Petitioner became entitled under Michigan law to exercise his civil right to vote and hold public office once he was released from custody. See Dahms, 938 F.2d at 133-34 (holding that once incarceration ends, a convicted felon's right to vote and to...