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U.S. v. JOHNSON

September 30, 2005.

UNITED STATES OF AMERICA,
v.
KENNETH JOHNSON, Defendant.



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION AND ORDER

Kenneth Johnson moves, pursuant to 28 U.S.C. § 2255, to vacate his sentence for violation of 18 U.S.C. § 922(g)(1) on two grounds. First, he argues that this Court was without jurisdiction to impose a sentence under § 922(g)(1) because his civil rights were restored with respect to his single prior conviction, thereby precluding it from serving as a predicate for a charge under § 922(g)(1) given the definition contained in 18 U.S.C. § 921(a)(20) of a "crime punishable by a term of imprisonment greater than one year," which excludes convictions for which civil rights have been restored. While all parties concede that defendant's rights to vote and run for office were restored upon completion of his prior sentence on January 22, 2001, it is undisputed that his right to serve on a jury was never restored. Although the D.C. Circuit has never precisely addressed the issue of whether the right to serve on a jury must be restored for the § 921(a)(20) exclusion to apply, at least five other Circuits have held that it must. In the single D.C. Circuit case in which the § 921(a)(20) exclusion was applied, all three of the defendant's "civil rights" had been restored.

Second, defendant argues that his counsel's performance fell below the Strickland standard because (1) he failed to investigate the question of whether his prior conviction could serve as a predicate for a § 922(g)(1) conviction; (2) he failed to move for a downward departure based on "aberrant behavior"; and (3) he failed to file a direct appeal of defendant's prior conviction. Given the applicable statutory and case law, as well as the terms of the plea agreement, under which defendant gave up his right to move for a downward departure, his claim of ineffective assistance of counsel is devoid of merit.

  Background and Procedural History

  Defendant was arrested on April 28, 2001 after an off-duty officer observed him in the parking lot of his apartment complex shooting a gun into the air at 11:25 p.m. He was later discovered to have been "extremely intoxicated" at the time. A 9mm loaded Hi-Point equipped with a laser sight was recovered from Mr. Johnson's person. Defendant was also found to be carrying six loose rounds of 9 mm ammunition and a magazine with five rounds of 9mm ammunition. Four spent 9mm casings were recovered from the area where the off-duty officer observed defendant shooting the weapon into the air. Subsequent records checks revealed that defendant was not licensed to carry a gun, the firearm was not registered, and he had been convicted of the offense of "Assault with Intent to Disable" in Prince George's County, MD (Case No. CT930247A) on June 7, 1993.

  Defendant was released to the custody of the BOP for placement in a half-way-house on April 30, 2001, and was released into the Heightened Supervision Program on June 11, 2001. On September 7, 2001 he pled guilty to a one count indictment for violation of 18 U.S.C. § 922(g)(1). On December 12, 2001 he was sentenced to 27 months imprisonment, followed by a term of 3 years supervised release.

  II. Motion to vacate sentence

  Defendant contends that:
(1) This Court lacked subject matter jurisdiction to impose a sentence pursuant to 18 U.S.C. § 922(g)(1) because his 1993 offense did not fall within the definition of permissible predicate offenses contained in 18 U.S.C. § 921(a)(20), as his civil rights had been restored with respect to that offense;
(2) He received ineffective assistance of counsel because his attorney failed to (A) research the question of whether defendant's prior MD offense was a proper basis for a conviction under 18 U.S.C. § 922(g)(1), instead simply advising Mr. Johnson to plead guilty; (B) move for a downward departure on the grounds of "Aberrant Behavior" pursuant to U.S.S.G. § 5K2.0 (4); and (C) file a direct appeal of defendant's conviction.
A. Prior felony conviction
  Defendant argues that his 1993 conviction for "Assault with Intent to Disable" in Prince George's County, MD (Case No. CT930247A) cannot serve as a predicate offense for an indictment under 18 U.S.C. § 922(g)(1) because 18 U.S.C. § 921(a)(20) provides, in relevant part:
 
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 a person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20) (emphasis added). Defendant initially submitted that his rights to vote, hold office, and sit on a jury were restored by operation of law, pursuant to Md. Ann. Code Art. 33 § 3-4(c) and Md. Ann. Code Art. 27 § 562C, as of January 22, 2001, the date his probationary period for the 1993 offense terminated. See United States v. Bost, 87 F.3d 1333, 1335 (D.C. Cir. 1996) ("It is generally agreed that the `civil rights' referred to in section 921(a)(20) are the rights to vote, to hold elective office, and to serve on a jury.").
  Defendant contends that, in light of the above, this Court was without jurisdiction to impose a sentence in this case, and therefore he need not meet the "cause" and "prejudice" standard set forth in the case law governing collateral review proceedings where the right of direct appeal has been waived. See United States v. Frady, 456 U.S. 152, 166, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Rather, he emphasizes that jurisdictional defects can be raised at any time, and cannot be waived. Accordingly, defendant asserts that he is entitled to immediate vacatur of his conviction and sentence for lack of jurisdiction, and asks this Court to order his immediate release from confinement.

  The government, in response, concedes that defendant's right to vote was restored by operation of Maryland law at the time of the instant offense, by virtue of the fact that the 1993 conviction was his first conviction and defendant had fully completed his sentence for that conviction on January 22, 2001. See Md. Ann. Code art. 33, § 3-102(b)(1)(ii)*fn1 and its predecessor Md. Ann. Code art. 33, § 3-4(c) (1993);*fn2 see also Gov't Opp'n at 15-17. The government further concedes that defendant's right to run for office was restored by virtue of restoration of the franchise, so long as he registered to vote. Md. Const. art. 1, § 12; Gov't Opp'n at 17.

  However, the government correctly points out that defendant's right to serve on a jury had not yet been restored at the time of his arrest for the instant offense. Under Maryland law, once convicted of a crime punishable by imprisonment for more than six months, a person must be pardoned before his right to serve on a jury is restored. Md. Cts. & Jud. Proc. Code Ann. § 8-207(5) (2001); see also id. (1992).

  The government further submits, citing to case law from the 4th, 6th, 9th and 10th Circuits that, although restoration of civil rights need not be complete in order for the exclusion embodied in 18 U.S.C. 924(a)(20) to apply, it must be "substantial." See United States v. Metzger, 3 F.3d 756, 758 (4th Cir. 1993); United States v. Hassan-El, 5 F.3d 726, 734 (4th Cir. 1993); United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990); United States v. Meeks, 987 F.2d 575, 578 (9th Cir. 1993); United States v. Flower, 29 F.3d 530, 532 (10th Cir. 1994). Moreover, it contends, again relying on persuasive authority, that inability to serve on a jury is fatal to a claim that civil rights have been restored for purposes of exclusion of a prior conviction under § 921(a)(20).

  "Whether a prior conviction meets the definition of 921(a)(20), and is therefore properly admitted in a 922(g)(1) case, is an ultimate legal determination to be decided by the trial judge" United States v. Flower, 29 F.3d at 532. This determination is made "according to the law of the jurisdiction in which the predicate conviction occurred." See, e.g., id. at 533; United States v. Hassan-El, 5 F.3d at 733. Some courts have construed the question of whether civil rights have been restored with respect to a prior conviction as an affirmative defense, for which the burden of proof lies with the defendant, others as an element of the offense under § 922(g), for which the government bears the burden of proof, and yet others simply as a legal definition within the statute. United States v. Flower, 29 F.3d at 533, 534, n. 6. Where objection to the use of the prior conviction is not made at trial, the Tenth Circuit has held that appellate review of this question is limited to plain error. Id. at 536.

 
The Ninth Circuit has established a two-stage analysis for determining whether a state conviction is nullified for purposes of federal firearms law. We first ascertain whether a felon's civil rights are substantially restored under state law; if they are, only then do we determine whether state law expressly restricts his right to possess firearms. United States v. Meeks, 987 F.2d at 578.
  The government's arguments here assume that the issue is properly presented by ...

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