U.S. v. Fowler

• Decision Date: 29 November 1993
• Citation: 1996 WL 734637,104 F.3d 368
• Parties: 97 CJ C.A.R. 33 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 368

104 F.3d 368

97 CJ C.A.R. 33

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee, v. Lester Eugene FOWLER, Defendant-Appellant.

No. 95-1207

United States Court of Appeals, Tenth Circuit.

Dec. 23, 1996.

Before ANDERSON, BALDOCK, and HENRY, Circuit Judges.

ORDER AND JUDGMENT ^*

HENRY, Circuit Judge.

Defendant Lester Eugene Fowler appeals from the denial of his motion under 28 U.S.C. § 2255. ¹ Mr. Fowler alleged in his § 2255 motion that the sentence he was serving for unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), violated the United States Constitution. Mr. Fowler's claim was based on his contention that he was not subject to the provisions of § 922(g)(1) because, although he had been previously convicted of a felony in Colorado, his civil rights had been restored under Colorado law before he possessed the firearm in question. Mr. Fowler also contended that he had received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.

The district court held that the first of Mr. Fowler's claims was procedurally barred because he had failed to raise it on direct appeal and, in any event, that the claim failed on the merits. The court also observed that Mr. Fowler's counsel was competent. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.

BACKGROUND

On September 15, 1994 a federal grand jury returned an indictment charging Mr. Fowler with four counts relating to his participation in an armed robbery, including: unlawful possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count I); affecting commerce through robbery of a Gart Brothers Sporting Goods store and taking thirty firearms by actual and threatened physical violence in violation of 18 U.S.C. § 1951(a) and (b) (Count II); use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count III); and theft of thirty firearms in violation of 18 U.S.C. § 922(u) (Count IV). On the advice of his court-appointed counsel, Mr. Fowler entered into a plea agreement whereby he pleaded guilty to Counts I and III and agreed to assist the government with its investigation of the crime; in exchange, the government agreed to dismiss Counts II and IV of the indictment and to request downward departures in sentencing on Counts I and III for substantial assistance and acceptance of responsibility.

In the plea agreement, Mr. Fowler admitted that he had engaged in the following conduct:

On June 27, 1994 Mr. Fowler participated in an armed robbery of Gart Brothers Sporting Goods Store, a federally licensed firearms dealer located at 14401 East Exposition Avenue, Aurora, Colorado. The defendant who was armed with a firearm and an armed companion hid in the store until it was closed, whereupon they emerged and held two store employees at gunpoint. They forced the store manager to open the safe and the gun vault, and left the store with approximately $7500 in cash and 30 firearms which were a part of the store's firearms inventory.... Gart Brothers does substantial business which affects interstate and foreign commerce.

Rec. vol. I, doc. 9, ex. 2, at 3 (Plea Agreement and Statement of Facts Relevant to Sentencing). The plea agreement also provided, and Mr. Fowler does not dispute, that

[o]n August 12, 1994 the defendant, LESTER FOWLER, was arrested in an alley in Denver, Colorado by officers of the Denver Police Department. At the time of his arrest the defendant knowingly possessed a firearm....

Mr. Fowler was previously convicted in case number 87-CR-1400 in the City and County of Denver for the crime of First Degree Criminal Trespassing, a felony, the punishment for which could exceed imprisonment for more than one year.

Id. at 3-4.

The district court sentenced Mr. Fowler to sixty-three months' imprisonment for Count I and sixty months' imprisonment for Count III, to be served consecutively, and ordered that he pay restitution in the amount of $15,819.68 and a special assessment in the amount of $100.00. During the sentencing hearing, at which Mr. Fowler's counsel was present, the court advised Mr. Fowler of his right to appeal the court's sentencing decision. Mr. Fowler did not appeal.

DISCUSSION

In this appeal, Mr. Fowler claims that his rights were violated in two different ways. First, he appears to claim that his § 922(g)(1) conviction violated his due process rights. Second, he argues that his Sixth Amendment right to effective assistance of counsel was violated.

I. Conviction under § 922(g)(1)

Mr. Fowler claimed in his § 2255 motion that he was not prohibited from carrying a firearm under § 922(g)(1) because his civil rights had been restored by operation of Colorado law upon his release from prison following his prior state conviction. However, the district court held that Mr. Fowler was procedurally barred from raising this claim on collateral review because he had "failed to demonstrate cause for his failure to present the claim on appeal and prejudice suffered therefrom or that a reviewing court's failure to review the claim will result in a fundamental miscarriage of justice." Rec. vol. I, doc. 10, at 2. The court went on to hold in the alternative that the claim failed on the merits because Mr. Fowler was indeed subject to prosecution under § 922(g)(1). We engage in de novo review of the district court's rulings on legal questions in § 2255 proceedings. United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir.1995).

"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994). Mr. Fowler pleaded guilty to a violation of § 922(g)(1). He did not object to his sentence, and he did not take a direct appeal. "A defendant's failure to present an issue on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. Id. We therefore consider whether Mr. Fowler has made the showing necessary to excuse his procedural default.

A. "Cause"

Mr. Fowler argues that he has demonstrated cause for his failure to appeal this issue in that his trial counsel prevented him from doing so. "An attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir.1996). We note at the outset that by arguing that § 922(g)(1) does not apply to him, Mr. Fowler raises a substantial question as to the adequacy of his counsel. Therefore, we first consider whether § 922(g)(1) was erroneously applied to Mr. Fowler in order to assess whether there was cause to excuse his procedural default.

Title 18, United States Code, Section 922(g)(1) provides in relevant 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 ship or transport in interstate 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). The meaning of "crime punishable by imprisonment for a term exceeding one year" is clarified in 18 U.S.C. § 921(a)(20). First, "what constitutes conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. § 921(a)(20). Second:

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.

Id.

Mr. Fowler was convicted in 1987 in a Colorado court of First Degree Criminal Trespass, a conviction which, the parties agree, would in the absence of a restoration of civil rights have satisfied the requirements necessary to trigger § 922(g)(1). Furthermore, the parties agree that Mr. Fowler's civil rights were indeed restored pursuant to Article VII, Section 10 of the Colorado Constitution, which provides in relevant part that any person

who was a qualified elector prior to ... imprisonment, and who is released therefrom ... by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution.

Colo. Const. art. VII, § 10. Mr. Fowler argues, therefore, that his 1987 conviction should not have been used as a predicate for his § 922(g)(1) prosecution.

In its response to Mr. Fowler's § 2255 motion in the district court, the government relied on Colo.Rev.Stat. § 18-12-108. That section was amended effective July 1, 1994, several weeks before Mr. Fowler's arrest, to expand the definition of the crime of "possession of weapons by previous offenders." Whereas before July 1, 1994 the statute prohibited firearms possession by persons previously convicted of only particular kinds of felonies, including burglary, arson and crimes of violence, Colo.Rev.Stat. § 18-12-108 (1986), the 1994 amendment widened the scope of the prohibition to...