Roehl v. U.S., s. 91-2054

• Decision Date: 16 June 1992
• Docket Number: 91-3020,Nos. 91-2054,s. 91-2054
• Citation: 977 F.2d 375
• Parties: Thomas J. ROEHL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 375

977 F.2d 375

Thomas J. ROEHL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 91-2054, 91-3020.

United States Court of Appeals, Seventh Circuit.

Submitted June 16, 1992. ^*

Decided Oct. 13, 1992.

Michael F. Hupy, Jacobson & Hupy, Milwaukee, Wis., for petitioner-appellant.

Elsa Lamelas, and Matthew L. Jacobs, Asst. U.S. Attys., Milwaukee, Wis., for respondent-appellee.

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Thomas Roehl was convicted of possession of firearms after conviction of a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g). Because he had three previous convictions of violent felonies on different occasions, he was subject to the minimum sentence of 15 years prescribed by 18 U.S.C. § 924(e), and he received that sentence. We affirmed by unpublished order. United States v. Roehl, 921 F.2d 278 (7th Cir.1990).

Roehl filed a motion pursuant to 28 U.S.C. § 2255, making a new claim. He contended that his 1966, August, 1974, and September, 1974 convictions in Wisconsin courts could not be a predicate for conviction, nor be counted for sentencing because his civil rights had been restored when he completed each sentence. He sought to excuse his failure to raise the point earlier because he had received ineffective assistance of counsel.

The district court denied relief, and Roehl appealed.

18 U.S.C. § 921 provides definitions of terms used in ch. 44, of which § 924 is also a part. Section 921(a)(20) deals with "crime punishable by imprisonment for a term exceeding one year." It provides in part,

What constitutes a conviction of such 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.

Roehl does not rely on any individualized official action restoring his rights, but on the operation of a general statutory provision, Wis.Stat. § 57.078:

Every person who is convicted of crime obtains a restoration of his civil rights by serving out his term of imprisonment or otherwise satisfying his sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his sentence or otherwise satisfied the judgment against him is evidence of that fact and that he is restored to his civil rights....

Roehl served the sentences and received certificates of discharge before the present offense occurred.

This court has distinguished (in construing 18 U.S.C. § 921(a)(20)) between a general restoration of rights by operation of a state statute, upon completion of a state sentence, and issuance to the convicted person of a document "implying that he is no longer 'convicted' and that all civil rights have been restored." United States v. Erwin, 902 F.2d 510, 512 (7th Cir.1990) (Illinois conviction counted notwithstanding statute restoring civil rights on completion of sentence). Where the alleged restoration of civil rights results by operation of a state statute, the state's view whether the conviction survives is controlling. "When state law deems a person convicted, that is dispositive for federal purposes under the first sentence of § 921(a)(20)." Id.

We think it clear that Wisconsin does not consider a conviction to have been wiped from the record once the person convicted has satisfied his sentence. The legislative history suggests that in enacting § 57.078 the legislature was concerned with restoring the right to vote (and perhaps eligibility to public office). Brossard, Restoration of Civil Rights, 1946 Wis.L.Rev. 281. It has been held that this section does not restore the right to hold public office. State v. Village of Lyndon Station, 98 Wis.2d 229, 245, 295 N.W.2d 818, 827 (Ct.App.1980), aff'd, 101 Wis.2d 472, 305 N.W.2d 89 (1981). See Note, Restoration of the Civil Rights of Convicted Criminals, 1951 Wis.L.Rev. 378, 384; 1974 Wis.Op.Atty.Gen. 75. Wisconsin has no constitutional provision conferring a right to own or possess firearms. At the time of Roehl's convictions and his completion of service of his sentences, there was no Wisconsin statute making it unlawful for a convicted person to own or possess firearms. Thus his convictions deprived him of no right in that respect, and no such right could have been "restored." In 1981, however, Wisconsin enacted Wis.Stat. § 941.29, effective March 31, 1982, making it an offense for a convicted felon to possess a gun. Although this enactment occurred later than Roehl's conviction, the Act which created § 941.29 made it clear that it applied to all earlier convictions, excepting persons who received a pardon and express authority to possess a firearm under 18 U.S.C.App. 1203, ch. 141, Laws of 1981, § 2. The fact that a previously convicted person had satisfied his sentence before possessing the firearm was not considered relevant. In the state's view, Roehl's 1966 and 1974 convictions could each be a predicate for criminal liability under Wis.Stat. § 941.29. Accordingly, each is also a predicate for conviction under 18 U.S.C. § 922(g) and for enhancement under 18 U.S.C. § 924(e).

We reject the government's argument that § 921(a)(20) was intended to control only what is a conviction of a "crime punishable by imprisonment for a term not exceeding one year" as a predicate for the offense described in § 922(g) and not to control what is a conviction for a violent felony or serious drug offense so as to be counted for sentencing under § 924(e). See Erwin, 902 F.2d at 511; United States v. Traxel, 914 F.2d 119, 122 (8th Cir.1990); United States v. Ziegenhagen, 776 F.Supp. 441, 445-47 (W.D.Wis.1991).

We also reject Roehl's argument that because Wis.Stat. § 941.29 was enacted after he satisfied his sentences and he received the benefits of Wis.Stat. § 57.078, our reliance on § 941.29 gives it ex post facto effect. We have no doubt that if Roehl had been prosecuted for violation of § 941.29, his earlier felony convictions could have been predicates without violation of the ex post facto provision. United States v. Jordan, 870 F.2d 1310, 1314-15 & n. 1 (7th Cir.1989). Our use of Wis.Stat. § 941.29 is only as evidence that Wisconsin views the operation of § 57.078 on a conviction as irrelevant to a prosecution for an offense as to which the prior conviction is a predicate.

Roehl makes an alternative argument why his 1966 conviction cannot be counted as one of the three required for enhancement. As provided in Wis.Stat. § 57.078, the authorities issue a certificate to a person who has satisfied his sentence. It is entitled "Discharge," recites the fact of conviction, states that the person has met the conditions of his sentence, and says that he is discharged. Roehl has not produced the "Discharge" issued when he completed the sentence on his 1966 conviction in 1970. The official records which might show that he received a particular form have been destroyed because of lapse of time. He has, however, produced a letter from a corrections official forwarding "a sample of the discharge certificate form (DOC-48A) that was being issued at the time of your 04/21/70 release."

The last paragraph of the form reads: "Any civil rights lost as result of conviction herein described, are restored by virtue of this discharge, under the provisions of section 57.078 of the Statutes of the State of Wisconsin." This language was not included in the "Discharge" pertaining to Roehl's 1974 convictions.

Roehl contends that the 1970 form of "Discharge" fulfills the dictum in Erwin that "If the state sends the felon a piece of paper implying that he is no longer 'convicted' and that all civil rights have been restored," § 921(a)(20) prevents counting the conviction unless the paper expressly provides that the...