MARCEL LIVAUDAIS, JR., United States District Judge
Defendant Avery Walker has filed a motion to withdraw his guilty plea. The United States opposes his motion. Because this motion to withdraw his guilty plea was filed long after he was sentenced, Rule 32(e) of the Federal Rules of Criminal Procedure applies. It states:
If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. At any later time, a plea may be
set aside only on direct appeal or by motion under 28 U.S.C. § 2255 .
F.R.Crim.P. (West 2000) (emphasis added).
Facts and Relevant Proceedings
The factual basis underlying the defendant's guilty plea, which he signed and which he agreed under oath in open court was correct and acknowledged that he did the acts contained therein, states in relevant part:
On January 30, 1999,
AVERY L. WALKER and his then girlfriend, Dyunana Jackson, went to Andre's Arms, 1987 Dallas Drive, Baton Rouge, Louisiana, to purchase a firearm.
WALKER knew that previously, on June 29, 1989, he pled guilty in East Baton Rouge Parish, Louisiana, to possession of cocaine. Possession of cocaine is a felony in the State of Louisiana, that is, it is a crime punishable by a term of imprisonment exceeding one year. Knowing he had a prior felony conviction,
WALKER believed he would have difficulties purchasing a firearm.
Therefore,
WALKER assisted Ms. Jackson in completing a United States Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms ("BATF") Form 4473, Firearms Transaction Record to be submitted to Andre's Arms. Andre's Arms is licensed with the United States Government to sell firearms. Pursuant to Chapter 44 of Title 18, United States Code, Andre's Arms is required to keep Forms 4473 on record for all firearms sold. It is based in part on information provided on a Form 4473 that a person is deemed eligible or ineligible to purchase a firearm. One of the questions asked on the Form 4473 is whether the prospective buyer has a felony conviction.
WALKER assisted Ms. Jackson in completing Form 4473. The form was completed as if Ms. Jackson were purchasing a firearm. Thus, Ms. Jackson's name was on the form as the applicant for the purchase of a firearm, and biographical information relating to her, including the fact that she had no felony convictions, was provided on the form. Essentially, Ms. Jackson was represented as the purchaser of a firearm. However,
WALKER and Ms. Jackson both intended for
WALKER to provide money for and receive a firearm from Andre's Arms. After the Form 4473 was completed, it was submitted to Andre's Arms.
WALKER then provided the cash for a Glock, Model 26, 9 mm pistol, serial number CYT182 and Andre's Arms tendered the pistol.
Rec. Doc. No. 25.
Defendant Avery Walker, who is represented by retained counsel at all relevant times, plead guilty on January 28, 2000 to a one count superseding bill of information charging him with knowingly making a false statement and representation with respect to information required by the provisions of Chapter 44 of Title 18 of the United States Code, in that he aided and abetted another person to purchase a firearm when he in fact purchased it. Rec. Doc. No. 27. This plea was in connection with a plea agreement in which the indictment pending against him for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) was dismissed in exchange for the guilty plea to the superseding bill of information and waiver of venue. Rec. Doc. No. 26. Defendant Walker specifically and voluntarily waived his right to trial and venue in the Middle District of Louisiana. Rec. Doc. No. 24. In his plea agreement, defendant Walker waived his right to appeal his sentence and to contest his sentence in any post-conviction proceeding, including that under 28 U.S.C. § 2255, reserving the right to appeal any punishment in excess of the statutory maximum and any punishment that is an upward departure.
Defendant Walker was sentenced to 10 months imprisonment and a three year term of supervised release on May 5, 2000. He has obtained several continuances of his self-surrender date. The judgment and commitment order was entered on May 5, 2000. Under the Rule 4(b) of the Federal Rules of Appellate Procedure, a defendant's notice of appeal must be filed in the district court within 10 days after the later of: (i) the entry of either the judgment or order being appealed; or (ii) the filing of the government's notice of appeal. Approximately nine months have elapsed since the judgment and commitment order was entered. Neither the defendant nor the government filed a notice of appeal. The time for appeal has expired and thus, in accordance with the dictates of F.R.Crim.P. 32(e), the Court must consider this as a motion for habeas relief under 28 U.S.C. § 2255.
The initial indictment in this matter charged the defendant with one count of violating 18 U.S.C. § 922(g)(1) and 924(a)(2), knowing possession of a firearm, the same Glock, Model 26, 9 mm pistol, after having been convicted of a drug felony. Rec. Doc. No. 1. The government moved to dismiss this indictment on May 5, 2000, the same day the defendant was sentenced and judgment was entered on his guilty plea to the superseding bill of information charging him was knowingly making a false statement and representation with respect to the information required by Chapter 44, Title 18, United States Code, which is a violation of 18 U.S.C. § 924(a)(1)(A) and (2)
Standard of Review for 28 U.S.C. § 2255 Claims
The Fifth Circuit summarized the standard of review on a petition for relief under 28 U.S.C. § 2255 in United States v. Shaid, 937 F.2d 228 (5th Cir. 1991), citing to the seminal § 2255 decision in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584 (1982):
The Supreme Court has emphasized repeatedly that a "collateral challenge may not do service for an appeal." After conviction and exhaustion or waiver of any right to appeal, "we are entitled to presume that [the defendant] stands fairly and finally convicted." A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude,
Hill v. United States,
368 U.S. 424, 428,
82 S.Ct. 468, 471 (1962), and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default, and "actual prejudice" resulting from the error. This cause and actual prejudice standard presents "a significantly higher hurdle" than the "plain error" standard that we apply on direct appeal. We apply this rigorous standard in order to ensure that final judgments command respect and that their binding effect does not last only until "the next in a serious of endless postconviction collateral attacks."
Shaid,
937 F.2d at 231-32,
quoting Frady,
456 U.S. at 164-166, 168, 120 S.Ct. 1592-1594. If the error raised is not of constitutional or jurisdictional dimension, the defendant must demonstrate that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice.
Shaid, 947 F.3d at 232;
United States v. Capua,
656 F.2d 1033, 1037 (5th Cir. 1981).
Even in instances of a fundamental constitutional error, the defendant must meet this cause and prejudice test. Shaid, Id.; Murray v. Carrier, 477 U.S. 478, 493, 106 S.Ct. 2639, 2648 (1986) Only in the extraordinary case where a constitutional violation has likely resulted in the conviction of a person who is actually innocent will the petitioner be excused from proving cause and prejudice for his procedural default.Shaid, Id.; Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. Actual innocence, in this context, means factual innocence, not mere legal insufficiency. To prove that he is actually innocent, the petitioner must establish that, considering all of the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998).
§ 2255 Claim
He now files a motion to withdraw his guilty plea and his waiver of venue of proceeding in this district. He argues that he obtained an expungement of his previous felony arrest on August 7, 2000 under Louisiana Code of Criminal procedure article 893(D). He contends that this expungement invalidates his conviction. Louisiana Code of Criminal Procedure article 893(D) provides in pertinent part:
D. (2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
La.C.Cr.P. Art. 893.
The order of the state court granting the expungement contains the following language:
However, authority under law is retained to consider prior arrests or convictions in the investigation
by any law enforcement official seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law. See La. R.S. 44:9B(2).
This Court has previously ruled upon a motion to suppress, which was more in the nature of a motion to dismiss, filed by defendant Walker, wherein Walker contended that because the state court judge previously set aside the prosecution and conviction of the defendant because he was a first offender, he could not be charged with being a felon in possession of a gun. This Court considered that argument and, relying on authorities from United States Fifth Circuit, concluded that the defendant did not recover the right to possess a firearm by virtue of the automatic pardon. The basis for this determination is La. R.S. 14:95.1, which provides in pertinent part:
A. It is unlawful for any person who has been convicted of . . . any violation of the Uniform Controlled Dangerous Substances Law which is a felony,. . . to possess a firearm or carry a concealed weapon.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by person who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides . . . for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
La.R.S. 14:95.1.
La. R.S. 14:95.1 expressly deprives the defendant of the right to possess a firearm for 10 years after the date of completion of his sentence and also provides authority for the defendant to have applied to the sheriff within the 10 years after completion of the sentence for a license to possess a firearm. The order of expungement specifically gives the sheriff the right to consider the defendant's felony arrest in determining whether or not he should be granted a permit to carry a weapon, even after expungement. Under United States v. Dupaquier, 74 F.3d 615 (5th Cir. 1996) and United States v. Thomas, 991 F.2d 206, 209 (5th Cir.), cert. denied, 114 S.Ct. 607 (1993), when the defendant is expressly deprived of the right to possess a firearm, and it is not automatically revived, it may serve as a predicate for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The defendant does not address the cause and prejudice analysis in his motion. However, inasmuch as he did not obtain the expungement until August 7, 2000, he would likely assert that he was unable to raise the issue in May, 2000, since the reason underlying this motion did not exist.
However, the defendant must also show prejudice in order to obtain relief. Defendant Walker plead guilty to making false statements in connection with the purchase of a firearm and in accordance with the factual basis he agreed to. There is nothing in the instant motion which suggests either as a factual or legal matter that he did not do so. The fact that he was successful in having his prior conviction expunged does not alter the fact that he made false statements in connection with the purchase of a firearm, inasmuch as at the time his girlfriend made the purchase of the gun for him, he knew that he had a prior drug felony and was prohibited from purchasing the weapon. Thus, the defendant has failed to demonstrate that the results of his proceeding would have been different had he raised this issue at the time of his guilty plea.
18 U.S.C. § 921(a)(33)(B)(ii) provides that "A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms." (emphasis added). Although this relates to the original indictment, which was dismissed, it should be noted that the expungement expressly allowed the sheriff to consider the defendant's prior conviction for purposes of considering his eligibility to possess certain licenses, including a license to carry a firearm. As explained above, a person's right to possess a firearm under Louisiana law is not restored automatically until 10 years after the completion of his sentence. At the time the defendant sought to purchase the firearm, his 10 years had not elapsed and he had not obtained his expungement.
Defendant Walker also moves to withdraw his waiver of venue. At the time he waived his objection to venue, he did so in writing with the assistance of counsel. Walker has presented no basis for the court to order the withdrawal of his waiver of venue.
For the foregoing reasons, and after review of the record and the law, the Court finds no cause to allow the defendant to withdraw his guilty plea after judgment. Defendant has not established his entitlement to relief under 28 U.S.C. § 2255.
Accordingly,
IT IS ORDERED that the defendant's motion to withdraw guilty plea, considered as brought under 28 U.S.C. § 2255, be DENIED.
IT IS FURTHER ORDERED that the defendant's motion to withdraw his waiver of venue be DENIED.
Defendant is hereby ORDERED to surrender to the designated institution on or before March 19, 2001 at 12:00 noon.