RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0107p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-3399
v.
,
>
-
Defendant-Appellant. -
JOSEPH A. CAREY,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 03-00446-001—Dan A. Polster, District Judge.
Argued: March 11, 2010
Decided and Filed: April 19, 2010
*
Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.
_________________
COUNSEL
ARGUED: William L. Tabac, LAW OFFICE, Parkman, Ohio, for Appellant. Bernard
A. Smith, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.
ON BRIEF: William L. Tabac, LAW OFFICE, Parkman, Ohio, for Appellant. Bernard
A. Smith, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.
_________________
OPINION
_________________
MARBLEY, District Judge. Defendant-Appellant Joseph Carey (“Carey”)
appeals the decision of the district court to deny his “Petition for Order of Expunction
of a Conviction” (construed by the district court as a Motion for Expungement). Carey
concedes that the Supreme Court, in District of Columbia v. Heller, 128 S. Ct. 2783
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 09-3399 United States v. Carey Page 2
(2008), specifically upheld firearm prohibitions for felons. Carey further concedes that
his request is to expunge a valid conviction and that this Court has previously indicated
that there must be compelling and extraordinary circumstances for a Court to grant such
a motion. For the following reasons, we AFFIRM the judgment of the district court.
I. BACKGROUND
On November 24, 2003, Carey was charged with one count of conducting an
illegal gambling business in violation of 18 U.S.C. § 1955. On December 12, 2003,
Carey entered a guilty plea to the Information pursuant to a plea agreement. The plea
agreement contained a waiver of any appellate and collateral attack rights as to his
conviction or sentence, and the district judge included the waiver and its consequences
in his colloquy with Carey. The district judge sentenced Carey to one year of probation,
a $10,000 fine, and a $100 special assessment. Carey has not appealed his conviction,
takes full responsibility for the underlying offense, and has since conformed his conduct
to the law. On March 18, 2009, Carey moved the district court for an order to expunge
his conviction. Two days later, and prior to the government’s response, the district court
denied his motion on the grounds that “[t]here is no federal provision for expungement
of a valid conviction.” United States v. Carey, No. 1:03-cr-00446 (N.D. Ohio Mar. 20,
2009) (Polster, J.). Carey timely filed this appeal.
II. JURISDICTION
The district court had subject matter jurisdiction under 28 U.S.C. § 1331 because
Carey raised constitutional claims in support of his Motion for Expungement. This
Court has jurisdiction under 28 U.S.C. § 1291 to review the final decision of the district
court on Carey’s motion for expungement.
No. 09-3399 United States v. Carey Page 3
III. ANALYSIS
A. Waiver of Collateral Attack
1. Standard of Review
This Court reviews the question of whether a defendant waived his rights in a
valid plea agreement de novo. United States v. Swanberg, 370 F.3d 622, 626 (6th Cir.
2004). The district court did not rule on the plea agreement, as it dismissed the motion
for expungement solely on the merits.
2. Expungement as a Collateral Attack
The United States argues that Carey’s appeal should be denied because his
motion for expungement is equivalent to a collateral attack of his conviction, and that
he waived his right to any collateral attacks in his plea agreement. The government
relies solely on United States v. Crowell, 374 F.3d 790 (9th Cir. 2004), to support its
argument that a motion for expungement of a conviction is a collateral attack of a
conviction. In Crowell, however, the Ninth Circuit held that an “expungement, without
more, does not alter the legality of the previous conviction and does not signify that the
defendant was innocent of the crime to which he pleaded guilty.” Id. at 792. The court
went on to find that, in the particular case before it, the defendant was attempting to use
“her motion for expungement as a post-conviction vehicle to challenge collaterally the
lawfulness of her conviction,” and was actually asking the court to vacate her conviction,
resulting in the court treating her motion as a collateral attack instead of an
expungement. Id. at 794. In this case, Carey is not attempting to use his motion for
expungement as a post-conviction vehicle, and, in fact, he readily admits the legality of
his conviction.
This Court has not previously ruled on whether a motion for expungement is
considered a collateral attack on a conviction. The case sub judice, however, does not
appear to be a case in which the defendant is attempting to find a back door into the court
despite having agreed to a waiver. In asking for expungement, Carey does not ask for
relief from punishment or to reverse the prosecution against him. Cf. United States v.
No. 09-3399 United States v. Carey Page 4
Fotouhi, No. 02-cr-38, 2002 U.S. Dist. LEXIS 14601, at *19 (W.D. Wisc. 2002) (finding
that district court has jurisdiction to expunge valid conviction). This Court, therefore,
agrees with the reasoning of Crowell and finds that a motion for expungement, which
is not brought as an attempt to couch a challenge to a conviction, is not considered a
collateral attack on that conviction. Accordingly, Carey’s motion for expungement was
not waived by his plea agreement.
B. Carey’s Fifth Amendment Rights
1. Standard of Review
An order on a motion to expunge a conviction is within the equitable jurisdiction
of a federal district court. This Court reviews such an order for abuse of discretion.
United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977).
2. Substantive Due Process & Equal Protection
Carey argues that the Second Amendment to the United States Constitution gives
him a fundamental right to possess or carry a firearm, and that the denial of his
expungement motion for his valid conviction1 denied him this fundamental right,
resulting in a violation of his Equal Protection and Due Process rights under the Fifth
Amendment. Essentially, Carey contends that, because expungement of his conviction
1
Carey devotes a section of his brief to arguing that Congress, through its passage of the Federal
Gun Control Act, 18 U.S.C. § 921, et. seq., “intended that its expungement remedy should extend to valid
convictions like his [Carey’s].” Appellant’s Br. at 7 (citing 18 U.S.C. § 921(a)(20)). Carey is correct in
his assertion that 18 U.S.C. § 921(a)(20) does not preclude expungements of valid convictions, as it
provides that:
What constitutes a conviction of such a crime shall be determined in accordance with
the law of the jurisdiction in which the proceedings were held. 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 that the
person may not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20).
Carey is incorrect, however, that this section, or any other section of the statute, creates “an expungement
remedy.” Section 921(a)(20) does nothing more than to exempt felons with expunged convictions, valid
or not, from the prohibitions on the possession of firearms by felons as outlined in 18 U.S.C. § 922(g)(1).
No provision in the Federal Gun Control Act, offers guidelines or procedures for whether or when
expungement may be appropriate.
No. 09-3399 United States v. Carey Page 5
would allow him to regain his Second Amendment rights, a court’s denial of
expungement infringes upon his fundamental right.
In Heller, the Supreme Court held that the Second Amendment provides an
individual right to bear arms, but cautioned:
[a]lthough we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on
the commercial sale of arms.
128 S. Ct. at 2816-17 (emphasis added). After Heller, this Court affirmed that
prohibitions on felon possession of firearms do not violate the Second Amendment.
United States v. Frazier, 314 F. App’x 801 (6th Cir. Nov. 19, 2008). In short, Heller
states that the Second Amendment right is not unlimited, and, in fact, it is specifically
limited in the case of felon prohibitions. Heller, 128 S. Ct. at 2816-17. Because
Congress’s prohibition on felon possession of firearms is constitutional, it follows that
the burdens associated with the congressionally-created expungement exception in
18 U.S.C. § 921(a)(20) do not violate the Second Amendment.2 Accordingly, the district
court did not abuse its discretion in denying Carey’s motion for expungement.
C. District Court Abuse of Discretion
1. Standard of Review
An order on a motion to expunge a conviction is within the equitable jurisdiction
of a federal district court. This Court reviews such an order for abuse of discretion.
Doe, 556 F.2d at 393.
2
Carey styles his claim as a general Due Process or Equal Protection argument. He appears to
conflate the enumerated Second Amendment right with Equal Protection and Due Process protections
under the Fifth Amendment, without specifying the legal theory under which Equal Protection and Due
Process are implicated.
No. 09-3399 United States v. Carey Page 6
2. Law and Analysis
Carey argues that the district court abused its discretion in denying his motion
for expungement without providing him with a hearing on the motion. Carey does not
point to, nor has this Court found, any statutory or constitutional authority that requires
a hearing on a motion for expungement. Carey does not allege, nor does he have, a
Fourteenth Amendment procedural due process claim. Cf. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (deprivation of life, liberty, or property will not
be effectuated with notice and an opportunity for a hearing). Accordingly, the district
court did not abuse its discretion in denying Carey a hearing on his motion or in denying
Carey’s motion for expungement.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of
expungement.