Howard v. US, 95-511-CIV-ATKINS
| Citation | 915 F. Supp. 329 |
| Decision Date | 08 September 1995 |
| Docket Number | No. 95-511-CIV-ATKINS,91-246-CR-ATKINS.,95-511-CIV-ATKINS |
| Parties | Gregory Bernard HOWARD, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Gregory Bernard Howard, pro se.
Kendall Coffey, United States Attorney, Janice LeClainche, Assistant U.S. Attorney, of counsel, Miami, Florida, for U.S.
THIS MATTER is before the court on Movant Howard's (Howard) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (d.e. 76 in Case no. 91-246-CR-ATKINS). After careful consideration of the motion, the government's response, the Report and Recommendation (R & R), the objections thereto, and the entire file in the case, it is
ORDERED AND ADJUDGED that:
(1) The June 14, 1995 R & R is hereby ADOPTED in as far as it denies Howard's motion.
(2) Howard's Motion under 28 U.S.C. § 2255 is hereby DENIED.
Defendant Howard is currently serving a 180-month sentence in the United States Penitentiary in Lewisburg Pennsylvania for his conviction under 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon. The length of Howard's sentence is a result of the Government's successful attempt to bring the enhanced sentencing provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), to bear during the sentencing hearing. After sentencing, Howard brought a timely appeal challenging both the conviction and sentence, relying on a claim of ineffective assistance of counsel and allegations of perjurious testimony by prosecution witnesses. The Court of Appeals rejected the appeal, affirming the actions of the district court (d.e. 75 in Case no. 91-246-CR-ATKINS). After the failure of his appeal, Howard filed this § 2255 motion challenging the original indictment on the grounds that he was not a convicted felon for purposes of § 922(g)(1) because the State of Florida restored his civil rights following his release from prison (d.e. No. 76 in Case No. 91-246-CR-ATKINS).
Howard did not raise the specific bases for relief requested in the instant § 2255 motion at trial or on appeal. Consequently, the Government argues that Howard is procedurally barred from raising these new objections in the present motion. The Honorable Magistrate Judge Lurana S. Snow, in her R & R of June 14, 1995, did not decide this issue conclusively, but did feel that Howard had likely waived his right to raise new issues in this motion. See R & R, June 14, 1995 at 3.
In determining whether a movant in a § 2255 motion may raise issues not raised at trial or on appeal, the standard requirement is that the movant must show "cause" and "prejudice." United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Parks v. United States, 832 F.2d 1244 (11th Cir.1987). The Magistrate Judge concluded that the "movant has not offered any explanation for his failure to raise in prior proceedings the issue of the alleged restoration of his civil rights." See R & R, June 14, 1995, at 3. In his traverse (d.e. 82 in Case no. 91-246-CR-ATKINS) Howard did attempt to address those issues, putting forward an ineffective assistance of counsel argument. The Supreme Court, in Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), and later in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), has decided that a successful ineffective assistance of counsel argument may constitute cause for failure to raise issues at trial or on direct appeal. Further, Howard is not currently barred from raising this claim pursuant to the Court of Appeals unpublished opinion in his direct appeal.1
The Supreme Court has articulated a two-part test for determining whether a claim of ineffective assistance of counsel may be sustained. First, the defendant must show that counsel made errors so serious that "counsel's representation fell below an objective standard of reasonableness." Second, it is incumbent on the defendant to demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Stano v. Dugger, 921 F.2d 1125, 1149 (11th Cir.1991) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984)).
To meet this standard, Howard argues that counsel's failure to investigate prior convictions to determine whether they could be used as predicate offenses for purposes of both § 922(g)(1) and § 924(e)(1) constitutes ineffective assistance of counsel. From the facts alleged, and from the entire record before this Court, Howard has not persuaded that the lack of investigation was unreasonable. More important, Howard has not demonstrated that such a failure could have affected the outcome of his trial or appeal.
The magistrate judge correctly held that Howard was unable to show cause or prejudice necessary to meet the standard as envisioned by the Supreme Court in Frady. In the vast majority of cases this discussion would be enough, and Howard would be barred from raising new issues in the present § 2255 motion. However, "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496, 106 S.Ct. at 2649. Howard's § 2255 claim is clearly the type intended to fall within this so-called "fundamental miscarriage of justice" exception for procedural default.
In Gonzalez v. Abbott, 967 F.2d 1499 (11th Cir.1992), cert. den. ___ U.S. ____, 114 S.Ct. 257, 126 L.Ed.2d 210 (1993), the petitioner challenged his conviction for cocaine conspiracy on grounds which had not previously been raised at trial or on direct appeal. The basis for Gonzalez' motion was that the state legislature had repealed the statute creating the offense for which he was convicted. Id. at 1504. Since his conviction was based on a statute that was arguably no longer in force at the time of the alleged offense, it was possible that his conviction was void. Nonetheless, the district court held the claim procedurally barred and refused to consider the argument on the merits.
The Court of Appeals, in overturning that decision, held, "this claim, if legally founded, establishes that Gonzalez' conviction ... is void and cannot be a legal cause of imprisonment —notwithstanding any procedural default." Id. at 1504. In the end, the Court declared that where a petitioner "argues that he was convicted for conduct that was not a crime, and that he is therefore `actually innocent' .... habeas relief is not procedurally barred by the ... failure to assert the claim at an earlier stage." Id. at 1504 (citing Murray v. Carrier, supra; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also U.S. v. Mills, 817 F.Supp. 1546 (N.D.Fla.1993), aff'd 36 F.3d 1052 (11th Cir.1994), cert. den. ___ U.S. ____, 115 S.Ct. 1966, 131 L.Ed.2d 856 (1995).
Howard's claim in the present motion falls within that class of cases envisioned by the Court of Appeals in Gonzalez. Essentially, Howard argues that since Florida restored his civil rights after his release from prison, then he could not be a "convicted felon" for purposes of 18 U.S.C. § 922(g)(1). In order for an individual to be guilty of possession of a firearm by a convicted felon they must have been "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year...." 18 U.S.C. § 922(g)(1) (1995). However, under the express language of 18 U.S.C. § 921(a)(20), "any conviction which has been expunged or set aside or for which a person has been pardoned or had his civil rights restored shall not be considered a conviction" for purposes of § 922(g)(1).
If Howard is correct that Florida restored his civil rights, then he clearly could not be guilty of a § 922(g)(1) offense. In effect, Howard has produced an argument that, if valid, would make him innocent of the crime for which he is currently imprisoned. This argument is not new to the Eleventh Circuit. In 1991, in United States v. Swanson, 947 F.2d 914 (11th Cir.1991), the Court of Appeals upheld the dismissal of an indictment under § 922(g)(1) based on exactly the type of argument that Howard now puts forth. Such a case undoubtedly falls within the fundamental miscarriage of justice exception for procedural default. As a result, Howard's claim is not procedurally barred.
Turning now to the merits of Howard's argument, it quickly becomes apparent that he has failed to meet the burden of proof necessary to succeed in the current motion. It is true that § 921(a)(20) exempts prior convictions in which the felon's civil rights have been restored. Further, it is also uncontested that the State of Florida restored Howard's civil rights upon his release from prison.2 This is not, however, the end of the inquiry.
Section 921(a)(20), referred to above, does state that prior convictions may not be counted as predicate offenses for purposes of § 922(g)(1) if civil rights have been restored to the felon. However, that same section goes on to state that convictions for which civil rights have been restored may count as predicate offenses for purposes of § 922(g)(1) if the "restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." § 921(a)(20).3 The central questions for determining the merits of Howard's motion, therefore, revolve around the alleged restoration of Howard's civil rights by the State of Florida. If Florida granted Howard all of his civil rights, without explicit reservation, then this motion would have to be granted. See Swanson, supra. On the other hand, if...
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