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U.S. v. Essig

filed: November 1, 1993.

UNITED STATES OF AMERICA,
v.
JAMES A. ESSIG, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Criminal Action No. 91-00059-01.

Present: Stapleton, Mansmann and Hutchinson, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

James A. Essig ("Essig") appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his petition under 28 U.S.C.A. § 2255 (West 1971) for relief from a federal criminal conviction.*fn1 Essig says he was improperly convicted of making a false statement in an application to purchase a firearm from a registered dealer, a violation of 18 U.S.C.A. § 922(a)(6) (West Supp. 1993).*fn2 His appeal raises three important issues of first impression in this Court, one procedural and two substantive. They are: (1) whether this Court should consider issues a counseled appellant raises pro se under the circumstances of this case; (2) what constitutes a restoration of "civil rights" within the meaning of the provision in the Firearms Owners' Protection Act of 1986, 18 U.S.C.A. § 921(a)(20) (West Supp. 1993) which restores a convict's right to possess a firearm; and (3) whether the Sentencing Reform Act overrules this Court's holding in United States v. Baylin, 696 F.2d 1030 (3d Cir. 1982) and Diggs v. United States, 740 F.2d 239 (3d Cir. 1984) that United States v. Frady's, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1984) cause and prejudice standard does not apply to collateral review of sentencing errors.

We hold as follows: (1) for the reasons set forth in Part IV-A, infra, that an appellate court has discretion, in the interest of judicial efficiency, to consider the pro se arguments of a counseled appellant and should exercise it under the peculiar circumstances that exist here; (2) for the reasons set out in Part IV-B, infra, that the federal Firearms Act's prohibition against possession of a firearm by a person convicted of a state crime punishable by a term of imprisonment of more than two years or a federal crime punishable by a term of imprisonment of more than one year is a disability that is not removed unless the convicting state has restored all the convict's civil rights, including the right to serve as a juror; and (3) for the reasons set forth in Part V, infra, that the Sentencing Reform Act overrules our holding in Baylin and Diggs that Frady 's cause and prejudice standard does not apply on collateral review of sentencing errors under § 2255.

Accordingly, after consideration of all of Essig's arguments, we conclude that the order of the district court should be affirmed.

I.

Essig claims he is entitled to relief under § 2255 because the district court imposed his June 19, 1991, eight-month sentence for a federal firearms offense in violation of law.*fn3 The June 19, 1991, conviction followed Essig's March 18, 1991, guilty plea to making a false statement in his application to purchase a firearm from a licensed dealer. Essig entered his guilty plea pursuant to a January 27, 1991, plea agreement. He had counsel throughout the criminal proceedings, but he did not appeal his conviction and he did not object in the sentencing court to the calculation of his sentence under the United States Sentencing Guidelines or to the Presentence Investigative Report on which it was based.

The false statement that Essig made was his denial of a Pennsylvania conviction for corrupting the morals of a minor. That conduct violated section 6301(a) of that state's criminal code. 18 Pa. Cons. Stat. Ann. § 6301(a)(1983). A violation of section 6301(a) is a misdemeanor of the first degree.*fn4 In Pennsylvania, misdemeanors of the first degree subject the offender to a maximum term of five years in prison. See 18 Pa. Cons. Stat. Ann. § 1104(1).*fn5 The state court gave Essig two years probation.

The district court fully explained the pending federal charges to Essig before it accepted his guilty plea and Essig acknowledged that his violation of § 922(a)(6) was knowing. Proceeding pro se in the district court on his subsequent § 2255 petition, Essig argued that his state conviction for corrupting the morals of a minor was not a "felony" and therefore not a serious enough crime to require disclosure on his application for the purchase of a .357 Magnum Ruger revolver. At its core, Essig's argument that his failure to disclose his state conviction for corrupting the morals of a minor was not serious enough to subject him to criminal liability under § 922(a)(6) depends on whether that conviction was material to his right to receive a firearm.*fn6 Arguably, it would not be material if the state crime he omitted from his application was not a crime that prohibited him from receiving a firearm under federal law.

II.

At first glance, the text of § 922(g)(1) appears to doom Essig's argument on materiality.*fn7 As we shall soon see, however, the words of § 922(g)(1) do not always mean what they say. For instance, § 921(a)(20) provides in relevant part:

The term "crime punishable by imprisonment for a term exceeding one year" does not include--

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less . . . .

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 ...


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