Opinion
Criminal No. 97-225 (JRT/AJB).
November 21, 2002
Jordan S. Kushner, LAW OFFICE, Sexton Building, Suite 636, 529 South Seventh Street, Minneapolis, MN, 55415, for petitioner.
David P. Steinkamp, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN, 55415, for respondent.
ORDER
On September 10, 2002, the Court granted petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255, finding that petitioner's trial counsel was ineffective in failing to investigate and raise the issue that petitioner's civil rights had actually been restored without any restriction on his possession of firearms. As a result, petitioner's earlier conviction could not be used to satisfy the predicate offense under 18 U.S.C. § 922(g) and petitioner's sentence for his conviction of the crime of being a felon in possession of a firearm was vacated and set aside. Petitioner has now moved for release and the United States has moved to stay the Court's order pending appeal.
ANALYSIS
Federal Rule of Appellate Procedure 23(c) provides:
[w]hen a decision ordering the release of a prisoner is under review, the prisoner must — unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise — be released on personal recognizance, with or without surety.
This rule "undoubtedly creates a presumption of release from custody in such cases." Hilton v. Braunskill, 481 U.S. 770, 774 (1987). According to the Supreme Court, the Court must apply the general standards for staying a civil judgment to determine whether the government has overcome Rule 23(c)'s presumption in favor of release. The factors include: (1) whether the applicant has made a strong showing on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 776. The Supreme Court also suggested that courts may also consider whether petitioner poses a danger of flight or a danger to the public if released. Id. at 777. In addition, the government's interest in continuing custody and rehabilitation pending appeal is also a factor, but it is "weakest where there is little of the sentence remaining to be served." Id. Ultimately, the Court must balance all of these factors in determining whether petitioner should be released pending the government's appeal of the Court's order.
The United States raises three primary reasons why petitioner should remain in prison pending appeal. First, the government claims that it has made a strong showing on the merits and that it is likely to prevail in the Court of Appeals. Second, the government views petitioner as a risk to flee the jurisdiction. Third, the government claims that petitioner presents a danger to the public if he is released.
It is true that in Davis v. United States, 972 F.2d 227 (8th Cir. 1992), a panel of the circuit court rejected the argument that a discharge order must expressly provide that the individual could not possess firearms. Instead, the court endorsed a conclusion that a court must look to "the whole law of the State" to determine whether the individual's right to possess firearms had been restored. However, the panel based its determination simply on the premise every other circuit had adopted the same conclusion — with no further analysis or review of the language of 18 U.S.C. § 921(a)(20). Since Davis, at least four circuits have rejected the "whole of state law approach" as contrary to basic due process considerations and the plain language of the statutes in question. In fact, in United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994), the Seventh Circuit reviewed a felon in possession conviction, based on a felony conviction in Minnesota, and found, as this Court has, that the restoration must expressly provide that the person may not possess firearms. It is undisputed that petitioner's discharge order contains no express prohibition on possession of firearms.
In the Court's view, the statutory mandate is very clear. 18 U.S.C. § 921(a)(20) provides that "any conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." (Emphasis added.) As Judge Easterbrook in the Glaser opinion and other circuit courts have found, the "whole of state law approach" simply does not square with the plain language of the statute and fundamental fairness to the rights of individuals who believe that there is no longer a restriction on their ability to possess firearms. Further, it strains reason to suggest that an individual who has completed a prison sentence and received an unqualified restoration of civil rights will be familiar enough with "the whole of state law" to know that somewhere there may be a provision restricting firearm possession. Despite the result in Davis, the Court finds that the government has not made a strong showing on the merits.
Although the record demonstrates that petitioner has on occasion failed to appear when required to do so, he has not fled the jurisdiction and has always been easy to find. He was released by this Court pending trial and never failed to appear for his court appearances and trial. With appropriate conditions of release, the Court finds that petitioner poses only a slight risk of flight.
It is also true that petitioner was once convicted of a violent serious crime, criminal sexual conduct in the third degree, in 1986. But petitioner has had no convictions for crimes of violence in the past sixteen years, and remained law abiding during his release pending trial. It is true that petitioner has been difficult at times to control in the courtroom and has expressed anger at his current situation. His courtroom outbursts, none of which have been physical in any way, do not suggest to the Court that anyone in the community would be in danger were he to be released. Again, with appropriate conditions of release, the Court finds that petitioner does not present a danger to the community.
Finally, petitioner has served over four years in prison and has sixteen months left on his sentence, assuming he would receive credit for good time. If he remains incarcerated during the pendency of the government's appeal, it is likely that he will serve most, if not all, of his sentence before receiving the relief provided by this Court's September 10 Order. The government's interest in continuing petitioner's rehabilitation is relatively weak, given his already lengthy incarceration.
CONCLUSION
The Court has balanced the standards for staying a civil judgment and carefully considered whether petitioner is a danger to flee or a danger to the community. Pursuant to Rule 23(c) of the Federal Rules of Appellate Procedure, the Court will deny the government's motion for a stay pending appeal, but will stay this Order for ten days so that the government may ask the Court of Appeals to consider whether to impose a stay under Rule 23(c). Petitioner's motion for release will be granted and the Court will order petitioner to be released subject to the following conditions:
1. Petitioner shall execute an unsecured bond in the amount of $25,000;
2. Petitioner shall not violate any laws, federal, state or local;
3. Petitioner shall keep Pretrial Services apprised of his current address;
4. Petitioner's travel shall be restricted to Minnesota;
5. Petitioner shall report on a regular basis to Pretrial Services;
6. Petitioner shall not use or unlawfully possess a narcotic drug and other controlled substances defined in 21 U.S.C. § 802 unless prescribed by a licensed medical practitioner; and
7. Petitioner shall submit to random urine analysis testing as directed by Pretrial Services.
The conditions will remain in effect pending further order of this Court. Any violation of any of the conditions will be grounds for revocation of petitioner's release.
ORDER
Based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that petitioner's motion for release [Docket Nos. 107 and 109] is GRANTED upon the conditions stated herein; and
The Government's motion for a stay pending appeal under Rule 23(c) of the Rules of Appellate Procedure [Docket No. 105] is DENIED, except to the extent that the Order is STAYED for ten (10) days to permit the government to apply to the Court of Appeals for a stay pending appeal.