US v. Ziegenhagen, 88-CR-50-C.

• Decision Date: 01 October 1991
• Docket Number: No. 88-CR-50-C.,88-CR-50-C.
• Citation: 776 F. Supp. 441
• Parties: UNITED STATES of America, Plaintiff, v. Armin A. ZIEGENHAGEN, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

776 F. Supp. 441

UNITED STATES of America, Plaintiff, v. Armin A. ZIEGENHAGEN, Defendant.

No. 88-CR-50-C.

United States District Court, W.D. Wisconsin.

October 1, 1991.

Daniel Bach, Asst. U.S. Atty., Madison, Wis., for plaintiff.

Morris D. Berman, Madison, Wis., for defendant.

OPINION and ORDER

CRABB, Chief Judge.

Defendant brings this motion to vacate his sentence pursuant to 28 U.S.C. § 2255, contending that his sentence for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), is invalid because prior convictions for burglary and armed robbery were used improperly to enhance his sentence, and because his counsel was ineffective for failing to show that the prior convictions could not be used.¹

Defendant was convicted in this court of violating 18 U.S.C. § 922(g), the maximum term for which is five years unless the offender has three previous convictions for violent felonies, in which case there is a mandatory minimum sentence of at least fifteen years. A violent felony is "any crime punishable by imprisonment for a term exceeding one year," "that has as an element the use or attempted use of physical force against the person of another," or "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). Defendant was found to be subject to the enhanced penalty provision of § 924(e) because he had prior state court convictions for burglary, armed robbery and battery to a peace officer.

Defendant contends that it was improper to consider two of his previous convictions as violent felonies for sentence enhancement purposes because the State of Wisconsin restored his civil rights in 1974 after he completed service of his sentences for those convictions. He argues that § 924(e) must be read together with 18 U.S.C. § 921(a)(20), which defines the term "crime punishable by imprisonment for a term exceeding one year" as not including "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

The government opposes defendant's motion, arguing that the court cannot even consider it because defendant did not raise it at sentencing or on direct appeal, and has not shown cause for his failure to do so. In the alternative, the government argues that defendant's underlying claim is meritless because his predicate offenses properly qualified as convictions to enhance his sentence.

I conclude that defendant would be able to show cause for his failure to raise this claim earlier if he could show that his counsel's failure to raise it constituted ineffective representation and that the failure prejudiced defendant. However, I conclude that defendant has failed to show that he was prejudiced by his attorneys' failure to challenge the government's use of two of his convictions to enhance his sentence, making it unnecessary to determine whether this failure constitutes deficient performance by counsel.²

On June 13, 1991 and August 1, 1991, defendant submitted motions to supplement his traverse with copies of state statutes, legislative history and case law. These materials are not necessary to a decision on defendant's motion to vacate his sentence; therefore, the motions to supplement will be denied.

FACTUAL BACKGROUND

Three months before defendant's November 1988 trial in this court for possession of a firearm by a convicted felon, the government gave notice of its intention to seek the imposition of an enhanced penalty under 18 U.S.C. § 924(e). Later the government advised defendant that it would rely on his prior convictions for battery to a peace officer in 1975 and for strong arm robbery and burglary in 1969. Prior to sentencing, defendant moved to bar application of the enhanced sentence on the ground that the 1969 burglary conviction did not qualify as a violent felony under § 924(e) because the common law definition of "burglary" did not include the burglary of a commercial establishment, the offense he had committed. The motion was denied and defendant was sentenced to the statutory minimum, 15 years' imprisonment.

Defendant appealed the determination that the burglary conviction qualified as a violent felony under § 924(e).³ The court of appeals affirmed the conviction and sentence, holding that the burglary conviction qualified as a predicate offense under § 924(e) and that sentence enhancement was proper.

Defendant then filed a pro se motion in the court of appeals asking for a rehearing. For the first time in any court he raised the contention that his counsel had been ineffective for not challenging the use of defendant's 1969 convictions as a basis for sentence enhancement when defendant's civil rights had been restored after he served his sentences for those offenses. The court of appeals denied the petition for rehearing, holding that the issue was a new one that must be raised first in a petition to the district court pursuant to § 2255. The court of appeals cautioned that the success of defendant's claim was questionable in light of its opinion in United States v. Erwin, 902 F.2d 510 (7th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 161, 112 L.Ed.2d 127 (1990) and the existence of a Wisconsin law prohibiting a convicted felon from possessing a firearm, Wis.Stat. § 941.29.

On April 28, 1991, defendant filed the present motion, together with a document issued in 1974 by the Wisconsin Department of Health and Social Services, entitled "Discharge."⁴ The document recites the date and subject of defendant's 1969 convictions and then states:

It further appearing that the aforesaid has met the conditions of the sentence; Now, therefore, it is ordered that effective May 15, 1974, the aforesaid be, and hereby is, discharged.

Any civil rights lost as a 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.

As of May 15, 1974, Wis.Stat. § 57.078 read as follows:

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.

In 1976, defendant was convicted in the Eastern District of Wisconsin of violations of 18 U.S.C. §§ 922(a), (g) and 922(h) (knowingly making false written statements concerning his past criminal record in connection with purchases of firearms and knowingly receiving firearms). Defendant's defense to the charges was that his "constitutional right to bear arms was restored pursuant to § 57.08 Wis.Stats., thus making his purchase of firearms lawful." United States v. Ziegenhagen, 420 F.Supp. 72, 73 (E.D.Wis.1976). As an alternative, he argued that even if the previous convictions made his purchases illegal, he believed that the state's restoration of his civil rights made the purchase lawful. Id. The court rejected the arguments and entered a judgment of conviction.

OPINION

A. Cause and Prejudice

Federal prisoners cannot obtain collateral relief pursuant to 28 U.S.C. § 2255 based on trial errors to which they did not raise a timely objection unless they can show both cause for the failure to raise the issue and prejudice as a result. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); Norris v. United States, 687 F.2d 899 (7th Cir.1982). The Supreme Court has explained that the "cause and prejudice" requirement rests on the importance of according significance to the existence of a final judgment perfected by appeal, instead of assuming that the federal trial and appellate procedures are so unreliable that their completed operation should not be given binding effect when a litigant has had a fair opportunity to present his federal claims in a federal forum. For these reasons, a collateral challenge should not be allowed to "do service for an appeal." Frady, 456 U.S. at 164-66, 102 S.Ct. at 1592-93.

Defendant seeks to establish cause and prejudice by showing that his counsel was ineffective in failing to raise the claim that defendant's discharge certificate restored his civil rights and that an enhanced sentence cannot be based on convictions for which civil rights have been restored; that this ineffective assistance constitutes "cause" for the procedural default; and that defendant experienced actual prejudice as a result of this default because he would not have received an enhanced sentence if the government had not been able to rely on the two 1969 convictions.

Ineffective assistance of counsel can provide cause for a procedural default if counsel's performance is constitutionally ineffective under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (citing Murray, 477 U.S. at 488, 106 S.Ct. at 2645); United States v. Kovic, 830 F.2d 680, 684 n. 9 (7th Cir.1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988). Under Strickland, a defendant must establish that the representation provided him "fell below an objective standard of reasonableness," and that the deficient representation prejudiced the outcome of the trial, that is, that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-94, 104 S.Ct. at...