In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1574
A LFRED J. G ANT, also known as
A LFORD JONES G ANT, also known as
A.J. G ANT,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CV-2095—Michael P. McCuskey, Chief Judge.
A RGUED S EPTEMBER 17, 2010—D ECIDED D ECEMBER 10, 2010
Before P OSNER, K ANNE, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. Alfred Gant was found guilty of
one count of possession of a firearm by a felon in viola-
tion of 18 U.S.C. § 922(g)(1). Because Gant had at least
three prior convictions for a violent felony or a serious
drug offense, he was sentenced as an Armed Career
Criminal (ACC) to 188 months of imprisonment. After a
2 No. 10-1574
failed appeal and a successful collateral attack, Gant was
resentenced to 180 months of imprisonment. Gant then
filed a habeas corpus petition attacking the resentencing,
this time arguing that his resentencing counsel was
ineffective for failing to file a direct appeal at Gant’s
request and for not challenging his classification as an
ACC. Gant also claimed that the district court erred
when it resentenced him as an ACC because his civil
rights were restored for his three prior violent felony
convictions, making those convictions inapplicable for
ACC purposes. The district court rejected Gant’s claims,
finding Gant neither showed that he directed his sen-
tencing counsel to appeal nor met his burden to estab-
lish that his rights were restored. After the district court
granted him a certificate of appealability, Gant timely
appealed. Because we agree that Gant failed in his evi-
dentiary burdens, we affirm.
I. B ACKGROUND
The procedural history of this case is extensive. We
will provide a brief overview of the case before pro-
ceeding to the facts relevant to Gant’s current appeal.
In 2003, Gant was found guilty of one count of posses-
sion of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). Because Gant had at least three prior con-
victions for a violent felony or a serious drug offense,
the district court concluded that Gant qualified as an
ACC and sentenced him to 188 months of imprison-
No. 10-1574 3
ment.1 Gant appealed his conviction to this court,
claiming that numerous trial errors tainted the guilty
verdict. We affirmed his conviction in United States v.
Gant, 396 F.3d 906 (7th Cir. 2005).
Gant then filed a habeas motion pursuant to 28 U.S.C.
§ 2255. Gant argued his counsel was ineffective for failing
to challenge the convictions underlying his classification
as an ACC and for failing to raise a Booker issue in his
appeal. Gant also claimed the district court erred when
the court, rather than the jury, made the factual deter-
mination regarding his prior convictions. While the
district court rejected most of his claims, the court
agreed with Gant that his appellate counsel was ineffec-
tive for not raising a Booker challenge. To remedy this
deficiency, the district court ordered Gant resentenced
and appointed him new counsel for resentencing.
On August 25, 2006, the district court held a resen-
tencing hearing and reduced Gant’s sentence to 180
months. Gant did not bring any objections at the
resentencing hearing, nor did he appeal following the
amended judgment. Only on December 4, 2006, over
three months after his resentencing, did Gant file a
notice of appeal. We dismissed the appeal as untimely
pursuant to Fed. R. App. P. 4.
Gant then brought another habeas motion under 28
U.S.C. § 2255, the subject of his current appeal. In his
1
Gant’s prior convictions used as predicates for ACC classifica-
tion include a 1970 armed violence conviction, a 1974 ag-
gravated battery conviction, a 1978 aggravated battery convic-
tion, and a 1985 drug conviction.
4 No. 10-1574
motion, Gant argued that the district court erred when
it resentenced him as an ACC. Because he received a
rights restoration letter from the Illinois Department of
Corrections, Gant claimed that his three prior violent
felony convictions could not be counted for ACC pur-
poses. With those convictions removed from the ACC
calculation, he had only one prior drug conviction as a
properly countable offense, leaving him two shy of the
three necessary for sentencing as an ACC. To prove
this, Gant offered a letter, purportedly from the Illinois
Department of Corrections, which stated that Gant’s
rights to hold constitutional offices and licenses were
restored. Gant also claimed his resentencing counsel
was ineffective for failing to challenge his ACC classifica-
tion and for not filing an appeal after Gant requested he
do so. The district court, under the reasonable impres-
sion that Gant was challenging his initial sentencing,
dismissed the motion as successive. On appeal, we
vacated the district court’s judgment and remanded the
case to the district court for a second look, holding
that Gant’s second motion was not successive because
it related to errors at the recent resentencing hearing.
After the case was remanded, the government filed a
response to Gant’s motion, questioning the authenticity
of Gant’s restoration letter and moving for an evidentiary
hearing. Gant then sought to correct his § 2255 motion.
In his revised motion, he claimed the letter he proffered
was not a photocopy of the actual letter (because there
was no available photocopier at the prison), but a
“manual reproduction.” Gant then attached another letter
to the revised motion. He claimed this letter was the one
No. 10-1574 5
he actually received from the Department of Correc-
tions. Gant also attached a blurry document from the
Illinois Prisoner Review Board, which suggested that his
citizenship rights were restored. Gant continued to chal-
lenge the treatment of all three of his prior violent
felony convictions, but not his conviction for the drug
offense.
Judge McCuskey held an evidentiary hearing to
evaluate Gant’s letter and to hear other evidence
relevant to his ineffective assistance of counsel claims.
At the hearing, Gant testified that he received the
Illinois Department of Corrections restoration letter
sometime in 2001 and that it was the only document he
received regarding his civil rights. Gant also offered
another copy of the restoration letter at the hearing, one
he claimed was signed by a parole staff member. After
he received the restoration letter in 2001, Gant testified
that his girlfriend, Ruby Rodriguez, took the letter to the
parole office and had it signed by an office assistant. Gant
also testified to acts that he took after allegedly re-
ceiving the Department of Corrections letter, such as
registering to vote, which he claimed corroborated his
belief that his rights were restored. Rodriguez offered
similar testimony. Finally, Gant conceded that he had
never been sent the Prisoner Review Board document,
and that he obtained it in the course of preparing his
habeas motion.
Various state employees also testified at the hearing
about Gant’s offers of proof. Kevin Heard, a technician
at the Illinois Department of Corrections, testified the
6 No. 10-1574
restoration letters are form letters with characteristic
spacing and formatting. The letters state that the
offender’s rights to hold licenses and office are restored,
and are typically signed and mailed to the parolee’s
last known address. Heard testified that standard prac-
tice was to send a letter, but because the Department
did not keep a list of letters sent or copies of the actual
letters, he could not verify that a letter was generated,
signed, sent, or received. Heard then inspected Gant’s
proffered letters and, based on inconsistencies between
the letters themselves and between the letters and the
Department template, concluded that they were not
authentic. Kevin Tupy, of the Illinois Prisoner Review
Board, also testified, stating that the Board document
was not sent to Gant, and that the “citizenship” language
did not confirm that all of his rights were restored.
The district court also heard testimony concerning
Gant’s statements to his resentencing counsel. Gant
claimed he had met with his counsel once before the
resentencing hearing and advised him that his civil
rights had been restored as to some of his prior convic-
tions. Gant went on to concede that he had not pro-
vided any documents to counsel and had not asked him
to investigate further. Gant also stated that he had
told counsel that he wanted to appeal the resentencing
order. Gant’s counsel then testified. He reported that
he did not recall Gant ever bringing up restoration of
rights. He also stated that he and Gant discussed the
possibility of filing an appeal, but after he advised
Gant that there were no meritorious issues to bring,
No. 10-1574 7
Gant decided not to appeal and did not direct him other-
wise.
The district court denied Gant’s § 2255 motion, holding
Gant did not meet his burdens of proof to show that he
ordered his counsel to appeal or that his civil rights
were restored. The court then granted Gant a certificate
of appealability regarding his ACC classification and his
ineffective assistance of counsel claims. Gant timely
appealed.
II. A NALYSIS
Gant argues that the district court erred in denying his
§ 2255 motion to vacate, set aside, or correct his sen-
tence. Upon a denial of a § 2255 motion, we review the
district court’s findings of fact for clear error and its
rulings of law de novo. Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009).
Gant first claims his resentencing counsel was ineffec-
tive for failing to file a direct appeal at Gant’s request.
When a defendant asks his attorney to pursue a direct
appeal and the attorney does not do so, it is per se inef-
fective assistance of counsel. Kafo v. United States, 467
F.3d 1063, 1069 (7th Cir. 2006). To succeed on such a
claim, however, a defendant must show that he actually
requested his attorney file an appeal. See Castellanos
v. United States, 26 F.3d 717, 719 (7th Cir. 1994) (“ ‘Request’
is an important ingredient in this formula. A lawyer
need not appeal unless the client wants to pursue that
avenue.”).
8 No. 10-1574
At the evidentiary hearing, the district court heard
testimony from Gant and his resentencing counsel,
Henry Welch, to determine whether Gant made such
a request. Gant testified that he told Welch he wanted to
appeal following the resentencing. He also pointed to
Welch’s statements during the resentencing hearing,
where Welch informed the court that he needed to pre-
serve certain issues at Gant’s behest. Welch then
testified, stating that Gant never ordered him to appeal.
Welch claimed that the two discussed the matter after
the hearing, but after he told Gant that there were no
meritorious issues to appeal, Gant seemed to under-
stand and agreed not to appeal. Believing Welch’s
account more credible than Gant’s, the district judge
found that Gant had never made a request for Welch
to appeal and, as such, that Gant’s ineffective assistance
claim lacked merit.
We note that a district court’s credibility findings are
entitled to “exceptional deference” and should be over-
turned only when they are clearly erroneous. Tezak v.
United States, 256 F.3d 702, 715-16 (7th Cir. 2001). Gant
argues the district court’s findings were incorrect
because Welch made statements at the evidentiary
hearing where he attempted to preserve certain issues
at Gant’s request. Gant claims that this, coupled with
his own testimony, proves he wanted to appeal and
specifically directed Welch to do so. But the highly ex-
perienced district judge heard that evidence, weighed
it against Welch’s account of events, and ultimately
found Welch’s testimony more credible. Gant now
asks us to reevaluate the district judge’s credibility deter-
mination, but a “credibility determination is not a basis
No. 10-1574 9
for appellate review.” See United States v. Burke, 125
F.3d 401, 404 (7th Cir. 1997). Because Gant has failed
to meet his burden to show that he requested Welch
to file an appeal, this ineffective assistance of counsel
claim lacks merit.
Gant next claims his appellate counsel was ineffective
for failing to investigate and challenge his ACC classifica-
tion. To establish ineffective assistance of counsel, Gant
must show that his counsel was deficient and that this
deficiency prejudiced him. Strickland v. Washington, 466
U.S. 668, 687 (1984); Bednarski v. United States, 481 F.3d
530, 535 (7th Cir. 2007). A failure to establish either
deficience or prejudice is fatal to Gant’s claim. Eddmonds
v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).
To show prejudice, Gant argues that he was er-
roneously classified as an ACC pursuant to 18 U.S.C.
§ 924(e)(1) and that his attorney’s failure to chal-
lenge that status harmed him at resentencing. Under
§ 924(e)(1), a defendant convicted of being a felon in
possession of a firearm must be sentenced to a minimum
of fifteen years’ imprisonment if the defendant has at
least three prior convictions for a violent felony or a
serious drug offense. But a “prior conviction” does not
include a conviction for which civil rights have been
restored, unless “the restoration of civil rights expressly
provides that the person may not ship, transport, possess,
or receive firearms.” 18 U.S.C. § 921(a)(20).2
2
The statute does not appear to contemplate restoration of
rights for serious drug offenses. Only a “crime punishable by
(continued...)
10 No. 10-1574
We have described the exclusion in 18 U.S.C. § 921(a)(20)
as an “anti-mousetrapping provision.” Buchmeier v.
United States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc).
The provision prevents a felon from being lulled into
a false sense of security by a state notice that purports
to restore his rights without limitation, only to have
those same convictions later used for federal sentencing
enhancement purposes. See United States v. Vitrano, 405
F.3d 506, 510 (7th Cir. 2005); United States v. Erwin, 902
F.2d 510, 512-13 (7th Cir. 1990). To exclude a conviction
from counting as an ACC predicate, however, a defendant
must show, by a preponderance of the evidence, that
his rights were restored. Vitrano, 405 F.3d at 509.
To meet this burden in the district court, Gant claimed
that he received a notice from the State that fully restored
his civil rights. During the evidentiary hearing, Judge
McCuskey heard Gant’s and Rodriguez’s testimony re-
garding his receipt of the letter, along with testimony
from the government showing that the letters Gant
offered as proof of receipt were forgeries. Based on in-
consistencies between Gant’s and Rodriguez’s testimony
and the conclusions of the government witnesses that
Gant’s letters were fake, Judge McCuskey found that
2
(...continued)
imprisonment for a term exceeding one year” is subject to
the exclusion for convictions for which a person has had civil
rights restored. 18 U.S.C. § 921(a)(20). And only violent felonies,
in turn, are defined as “crime[s] punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 924(e)(2).
No. 10-1574 11
Gant failed to meet his burden to show that he received
a letter. This made his ACC classification appropriate
and did away with his ineffective assistance claim.
On appeal, Gant continues to argue that “the State of
Illinois fully restored all of [his] civil rights when he
received a notice from the State,” and as such, the
district court erred. Because Gant argues that his actual
receipt of the letter restored his rights, we focus solely
on whether he showed, by a preponderance of the evi-
dence, that he received a letter. We note, however, that
we have not squarely addressed at what point—either
dispatch or receipt—a state notice effectively restores
civil rights for purposes of 18 U.S.C. § 921(a)(20). Compare
Buchmeier, 581 F.3d at 563-64 (“[N]o matter what state
law provides, a person who has received a ‘pardon,
expungement, or restoration of civil rights’ is not treated
as convicted for federal purposes ‘unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport,
possess, or receive firearms.’ ”), and Vitrano, 405 F.3d at
510, with Buchmeier, 581 F.3d at 566 (“Even if a state
deems a person ‘convicted’ for purposes of its domestic
law, if it sends a document that seems to restore all
civil rights the conviction does not count for fed-
eral purposes unless the document warns the person
about a lingering firearms disability.”), and Erwin, 902
F.2d at 512-13.
Gant’s evidence of actual receipt was shaky at best.
While Gant claimed that he received one letter, he pro-
duced multiple versions of this letter, all of which were
12 No. 10-1574
inconsistent and contained errors that led the Depart-
ment of Corrections employee to conclude that they
were inauthentic. By producing inauthentic (and pos-
sibly fraudulent) letters, Gant damaged his credibility,
making his later testimony that he received a letter
suspect. Inconsistencies between his testimony and
Rodriguez’s testimony further undermined his cred-
ibility. Moreover, while the Department employee
testified that standard practice was to send a restoration
letter after parole was complete, the employee could not
verify that a letter was actually dispatched and received.
Gant’s damaged credibility and the weakness of his
evidence led the district court to conclude that he failed
to show receipt of a notice, and we see no clear error in
this finding. Since Gant did not meet his burden, his
ACC classification stands and his ineffective assistance
claim falls for want of prejudice. See Strickland, 466 U.S.
at 697.
Gant finally argues that the district court erred when
it classified him as an ACC. This claim is unsuccessful
for a number of reasons. First, Gant did not bring this
claim on direct appeal; he has not established cause
and prejudice, so he may not proceed with it under
§ 2255. See Melvin v. United States, 78 F.3d 327, 329 (7th
Cir. 1996). Second, even if Gant did show cause and
prejudice, for the reasons discussed above, he is unable
to establish that the district court erred in sentencing
him as an ACC.
No. 10-1574 13
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s denial of Gant’s § 2255 motion.
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