Opinion
Case No. C00-2065
August 29, 2002
Philip B. Mears, Mears Law Office, Iowa City, IA, for Plaintiff.
Ronald Dean Swartz, Waterloo, IA, Pro Se.
Robert P. Ewald, Des Moines, IA, for Defendant.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the petitioner's petition for writ of habeas corpus (docket number 1). This matter was referred to the United States Magistrate Judge for a report and recommendation. It is recommended that the petition be denied.
The petitioner requests relief from a judgment entered by the Iowa District Court in Black Hawk County on January 30, 1998 resulting in a five-year prison sentence for possession of a firearm by a felon in violation of Iowa Code § 724.26 and carrying weapons in violation of Iowa Code § 724.4(1). The Iowa Supreme Court heard the petitioner's appeal and affirmed the district court's determination. See State v. Swartz, 601 N.W.2d 348 (Iowa 1999). The petitioner contends that because the Iowa Code sections mentioned above were enacted after he was convicted of breaking and entering in 1976, any application of those laws to him violates the constitutional prohibitions against ex post facto laws and bills of attainder.
The respondent argues that the Iowa Code sections do not create an extra punishment for crimes already committed, but rather protect the public so the Ex Post Facto Clause is not implicated. The respondent also argues that the Code sections do not violate the constitutional prohibition against bills of attainder because the Code sections do not punish an individual for membership in a particular group.
FACTS
The petitioner was convicted of felony breaking and entering on June 23, 1976. Iowa Code §§ 724.26 and 724.27 make it illegal for individuals convicted of a felony to possess a firearm, but these laws first became effective on January 1, 1978. In 1981 the petitioner's rights of citizenship were restored by then Governor Ray. The 1981 restoration of rights did not contain any language regarding the prohibition of firearm possession by a felon. The form indicated that the restoration was not the equivalent of a pardon but did not specifically address the possession of firearms issue.
The petitioner was convicted of 1st degree robbery in 1985. The petitioner's robbery conviction was reversed on appeal of his post conviction relief proceedings. The petitioner was retried again and found guilty, but that conviction was also reversed. In 1992, after he had served his sentence, the petitioner's civil rights were restored by then Governor Branstad. The 1992 restoration of rights form contained language that expressly prohibited the possession of firearms by those previously convicted of a felony. In 1998 the petitioner was charged with and convicted of possession of a firearm by a felon based on his 1976 breaking and entering conviction.
The record is unclear as to why the petitioner had his rights restored in 1992 given the fact that his conviction was reversed. However, there is a restoration of rights certificate signed by Governor Branstad and dated December 3, 1992 attached to the respondent's brief submitted initially to the District Court in the Southern District of Iowa (Defendant's Exhibit 2).
The petitioner argues that by basing the 1998 conviction on his 1976 felony, the government has violated the Ex Post Facto Clause and the Bill of Attainder Clause of the federal Constitution. The petitioner contends that because the Iowa Code sections prohibiting the possession of firearms by felons became effective after he became a felon, the application of those laws to him constitutes additional punishment. The petitioner claims this punishment is prohibited by the Ex Post Facto Clause of the United States Constitution. He also argues that applying the Iowa Code sections against a specific group of people, specifically convicted felons, violates the Bill of Attainder Clause of the United States Constitution. The petitioner contends that the Code sections impose a legislative punishment without a trial on a specific group of people, those previously convicted of a felony. The petitioner further argues that by ignoring the fact that the 1981 restoration of rights completely restored all the rights the petitioner had before the conviction, the court denied the petitioner a "mistake of law" defense. The petitioner now argues that the same argument regarding the extent of the restoration of rights and the reliance the petitioner placed on the restoration should be heard in federal court as an "entrapment by estoppel" argument. Lastly, the petitioner claims that his due process rights were violated due to the sentencing court's reliance on incorrect information contained in the pre-sentence investigation report.
The respondent contends that when the Iowa Supreme Court denied the petitioner's appeal, it reasonably relied on federal law and, therefore, habeas relief is not warranted. The respondent also argues that the Iowa Code sections at issue were passed to provide public protection, not as additional punishment. Furthermore, the respondent claims the mistake of law argument was not fairly presented at the state court level as a federal question so it should not be allowed as an argument here. Finally, it argues that the sentencing court did not rely on any inaccurate information when sentencing the petitioner.
CONCLUSIONS OF LAW Habeas Corpus Relief
A writ for habeas corpus can be granted pursuant to 28 U.S.C.A. § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court said in Williams v. Taylor, 529 U.S. 362, 381-82 (2000) that:
If this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar. In this respect, we agree with the Seventh Circuit that this clause `extends the principle of Teague by limiting the source of doctrine on which a federal court may rely in addressing the application for a writ.' Lindh v. Murphy, 96 F.3d 856, 869 (1996). As that court explained: `This is a retrenchment from the former practice, which allowed the United States courts of appeals to rely on their own jurisprudence in addition to that of the Supreme Court. The novelty in this portion of § 2254(d)(1) is not the `contrary to' part but the reference to `Federal law, as determined by the Supreme Court of the United States. This extends the principle of Teague by limiting the source of doctrine on which a federal court may rely in addressing the application for a writ. It does not, however, purport to limit the federal courts independent interpretative authority with respect to federal questions.'
In support of his argument, the petitioner relies on United States v. Davis, 936 F.2d 352 (8th Cir. 1991) and Bell v. United States, 970 F.2d 428 (8th Cir. 1992). In Davis, the defendant was convicted in federal court in 1989 of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). His sentence was enhanced pursuant to 18 U.S.C. § 924(e)(1) because he had been convicted of three prior violent felonies. One of those prior felonies was a 1971 conviction for burglary. The defendant was discharged from his 1971 conviction in 1976 and given a restoration of rights. While he was on parole in 1975, the state of Minnesota enacted a law prohibiting felons whose civil rights were restored from possessing a firearm for an additional ten years. If the defendant is convicted of another offense within ten years, the restoration of rights is invalidated. The government argued that a 1975 law invalidated the defendant's restoration of rights because he was convicted of another crime during the ten-year period. The Eighth Circuit Court of Appeals held that the application of the 1975 law to the defendant's 1971 conviction was a violation of the Ex Post Facto Clause of the Constitution because it retroactively increased the punishment for the 1971 offense by decreasing the defendant's opportunity for civil rights restoration.
In Bell v. United States, 970 F.2d 428 (8th Cir. 1992), the petitioner successfully challenged a similar enhancement of his federal felon in possession of a firearm conviction for having three prior violent felonies. The defendant argued that two of his three convictions from 1969 and 1975 could not be used to enhance his sentence because he received a restoration of rights in 1978 for these offenses. Pursuant to 18 U.S.C. § 921(a)(20), such convictions can only be used for enhancement if the restoration of civil rights expressly prohibited the possession of firearms. The government attempted to argue that in the same year of the restoration. Iowa enacted a law prohibiting felons from possessing firearms unless the defendant had received express authorization in the restoration of rights to possess a firearm. The Eighth Circuit Court of Appeals rejected this argument based on its holding in Davis.
The respondent relies on United States v. O'Neal, 180 F.3d 115 (4th Cir. 1999) in support of its contention that the application of a prohibition of firearms statute is a protective measure and does not impose any new or different punishment. O'Neal is among the majority of courts that hold a conviction under a statute forbidding possession of a firearm by a person convicted of a felony does not violate the Ex Post Facto Clause even when the felony for which the defendant was convicted took place before the statute was enacted. See, e.g., United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000); United States v. Brady, 26 F.3d 282 (2d Cir. 1994). In O'Neal, the Fourth Circuit Court of Appeals disagreed with the holding in Davis and stated:
We find Davis unpersuasive chiefly for two reasons. First, the court assumed an answer to the very questions at issue — whether the change in Davis' right to possess firearms imposed "punishment." The court simply asserted that it did and the court's conclusion that the change violated the Ex Post Facto Clause necessarily followed. ("Thus, at the time of Davis's 1971 conviction part of his punishment was that his civil rights would be impaired only until he was discharged from his conviction.")Id. at 125 (internal citations omitted). The Fourth Circuit therefore concluded that the prohibition on firearm possession was not "punishment" and did not violate the Ex Post Facto Clause. Id. at 123.
There does not appear to be clearly established laws as determined by the Supreme Court, on the issue of whether a statutory prohibition of firearms by previously convicted felons, enacted after the felony conviction, can be applied to felons after they are discharged from their sentences. In this case, the Iowa Supreme Court relied upon Brady, 26 F.3d at 291, United States v. Etheridge, 932 F.2d 318, 323 (4th Cir. 1991), and United States v. Patterson, 829 F.2d 1524, 1527 (9th Cir. 1987), in support of its conclusion that the crime of being a felon in possession of a firearm is committed at the time of possession, regardless of the date of the prior conviction. All three cases held that when analyzing the retroactive application of the statute, the temporal focus should be the time of the possession of the firearm and not the time of the prior felony conviction. The Eighth Circuit decisions in Davis andBell represent the minority view about the validity of applying the felon in possession statute to those felons whose convictions pre-date the passage of the statute.
The Supreme Court of the United States has held that the Ex Post Facto Clause does not forbid all legislative changes that have any conceivable risk of affecting a prisoner's punishment. See California Department of Corrections v. Morales, 514 U.S. 499, 508-09 (1995).
In a similar line of cases, analyzing the retroactive application of the prohibition against individuals convicted of domestic abuse possessing firearms, the Fourth Circuit Court of Appeals held:
To fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, 441 (1997). It is immaterial that [defendant's] firearm purchase and domestic violence conviction occurred prior to § 922(g)(9)'s enactment because the conduct prohibited by § 922(g)(9) is the possession of a firearm. As it is undisputed that [defendant] possessed the firearm after the enactment of § 922(g)(9), the law's application to [defendant] does not run afoul of the ex post facto prohibition.Mitchell, 209 F.3d at 322-23. Similarly, the Sixth Circuit concluded that a conviction on a domestic violence offense sufficiently placed defendant on notice that the government might regulate his ability to own or possess a firearm. United States v. Beavers, 206 F.3d 706, 708-09 (6th Cir. 2000). Also, the First Circuit reasoned that "[t]he dangerous propensities of persons with a history of domestic abuse are no secret, and the possibility of tragic encounters has been too often realized."United States v. Meade, 175 F.3d 215 (1st Cir. 1999). The same rationale may be applied to convicted felons as these courts applied to convicted domestic abusers. Courts addressing similar ex post facto challenges to § 922(g)(9) have all reached a conclusion similar to the Fourth Circuit in Mitchell. See United States v. Boyd, 52 F. Supp.2d 1233, 1236-37 (D. Kan. 1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46 (D. Kan. 1997); United States v. Meade, 986 F. Supp. 66, 69 (D. Mass. 1997), aff'd, 175 F.3d 215 (1st Cir. 1999); National Association of Government Employees v. Barrett, 968 F. Supp. 1564, 1575-76 (N.D. Ga. 1997), aff'd, Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).
These cases indicate that the Ex Post Facto Clause is not violated when a felon in possession statute is applied against a prior felony conviction because these statutes are viewed as completely new offenses, occurring at the time of possession, and not increased punishment for past offenses. The Iowa Code sections do not violate the Ex Post Facto Clause because the petitioner is not being additionally punished for his earlier felony, but rather, for a new and separate offense of which the prior felony conviction is an element. See State v. Peters, 622 N.W.2d 918, 925 (Neb. 2001) (citations omitted).
It is clear that the Iowa Supreme Court relied on the majority view on the federal issues presented. Because the decision the court reached inState v. Swartz was neither contrary to nor involved an improper application of federal law, the petition for habeas corpus relief under 28 U.S.C.A. § 2254 must be denied.
Bill of Attainder
The United States Constitution provides that: "No state shall . . . pass any Bill of Attainder." U.S. CONST. art. I, § 9, cl. 3. A bill of attainder is a legislative determination that metes out punishment to a particular individual or a designated group of persons without a judicial trial. United States v. Lovett, 328 U.S. 303, 315 (1946). To constitute a bill of attainder, the statute must: (1) specify affected persons; (2) impose punishment; and (3) fail to provide for a judicial trial. See Selective Serv. Sys. v. Minnesota Pub. Interest Res. Group, 468 U.S. 841, 846-47 (1984). The danger of a bill of attainder is that it deprives the accused of the protection afforded by the judicial process. United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir. 1986).
The petitioner in this case was not the victim of a bill of attainder. He was given a trial in court prior to each of his convictions. In State v. Swartz, the Iowa Supreme Court held that the imposition of the firearm prohibition was not a punishment based on his membership in a particular group, but rather was for his violation of a regulation validly imposed upon that group through the legislative process. Swartz, 601 N.W.2d at 351. In support of its conclusion, the court quoted United States v. Donofrio, 450 F.2d 1054 (5th Cir. 1971):
Appellant misconceives the [thrust of the bill of attainder prohibition]. Laws regulating the conduct of convicted felons have long been upheld as valid exercises of the legislative function. The prohibitions of [the bill of attainder clause] relate only to penal laws which are described as those laws which inflict a disability for the purpose of punishment. If the disability is designed to accomplish some other legitimate governmental purpose it should stand. . . Such an activity is presented in the present case, the regulation of guns in the hands of those previously convicted of felonies.
Once again, the Iowa Supreme Court relied on a reasonable interpretation of federal law. The writ of habeas corpus on the issue of whether Iowa Code § 724.26 violated the prohibition against Bills of Attainder should be denied.
Entrapment by Estoppel
The defendant also claims that he is entitled to relief based on the theory of entrapment by estoppel. In state court, the argument was based on a mistake of law theory. The petitioner claimed that the restoration of rights was permission by the government to possess firearms. When he was arrested for possessing a firearm, he argues that this constituted entrapment by estoppel. The respondent contends that the entrapment by estoppel argument was not fairly presented as a federal question in state court so this court cannot address it in this habeas corpus proceeding. There is no indication that this argument was presented as a federal question in the state court. This argument was framed as a "mistake of law" argument before the Iowa Supreme Court. There, the petitioner simply argued that he was deprived of a state substantive law defense pursuant to Iowa Code § 701.6. No constitutional issue was presented and no federal cases were cited in support of this argument.
The requirement of exhaustion of state remedies generally prevents prisoners from making constitutional claims in federal habeas proceedings unless they have first been fairly presented to the state court. Picard v. Connor, 404 U.S. 270 (1971). As the Supreme Court stated in Duncan v. Henry, 513 U.S. 364 (1995):
If state courts are to given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court but in state court.Id. at 365-66. In order for a claim to be "fairly presented" to the state courts, a petitioner is required to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue. Presenting a claim that is merely similar to the federal habeas claim is not sufficient to satisfy the "fairly presented" requirement. Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999).
In Barrett, the defendant had vigorously asserted in state court that the admission of alleged hearsay evidence deprived him of an opportunity for cross-examination. In a reply brief to the Iowa Supreme Court, he argued "the future of the right to confrontation which is guaranteed by the Sixth Amendment of the United States Constitution . . . will be severely jeopardized and subject to abuse." The Court of Appeals, sitting en banc, stated that it was not inclined to believe that Barrett's claim had been "fairly presented" to the state court but decided not to reach this difficult question in light of the fact that the merits of the constitutional claim were easier to decide. Because petitioner's entrapment by estoppel defense was not fairly presented to the state court, it should be rejected here.
These facts are not found in the Eighth Circuit March 9, 1999, en banc decision. They can be found in the panel decision at 143 F.3d 449, 454 (8th Cir. 1998).
Due Process
The final argument that the petitioner makes is that his due process rights were violated because the sentencing court relied on inaccurate factual information contained in the presentence investigation report. Again the Iowa Supreme Court addressed this argument and indicated that although the report contained inaccuracies, the petitioner's attorney pointed out each inaccuracy, the state did not dispute the inaccuracies, and the sentencing court made no reference to the inaccurate material in imposing the sentence. There was no violation of the petitioner's right to due process. The Iowa Supreme Court resolved the inaccuracies issue without being requested to address any federal constitutional question. This court will not address the issue in this petition for a writ of habeas corpus because, again, it was not presented as a federal question at the state court level.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the petitioner's writ for habeas corpus be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).