USCA1 Opinion
November 17, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1438
UNITED STATES OF AMERICA,
Appellee,
v.
ARTHUR RUMNEY,
Defendant, Appellant.
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ERRATA SHEET
The cover sheet of the opinion of this court issued on
November 13, 1992 is amended as follows:
Line 16: insert "," after the name "Boudin."
Line 19: the name "Rummey" should be changed to "Rumney."
Line 20: the name "Petter" should be changed to "Peter."
Line 21: the name "Pappas" should be changed to "Papps."
November 13, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1438
UNITED STATES OF AMERICA,
Appellee,
v.
ARTHUR RUMNEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Arthur Rumney, on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Peter E.
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Papps, First Assistant United States Attorney, on Motion for
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Summary Disposition.
Per Curiam. Petitioner was convicted of being a felon
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in possession of a firearm in violation of 18 U.S.C. app.
1202(a)(1). Based on his several prior felony convictions
for
burglary and robbery, he received the mandatory minimum
fifteen-year sentence prescribed by the sentence enhancement
provisions of the statute. His conviction and sentence were
affirmed on appeal. United States v. Rumney, 867 F.2d 714
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(1st Cir.), cert. denied, 491 U.S. 908 (1989). Petitioner
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then filed his first motion to vacate his sentence under 28
U.S.C. 2255. The district court denied that motion and two
subsequent motions for reconsideration. This court affirmed.
United States v. Rumney, No. 91-1505 (1st Cir. Nov. 13,
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1991). Petitioner now appeals the denial of a cluster of
new motions he brought in the district court between January
and March, 1992: a second 2255 motion, and four subsequent
motions, variously labeled, which the district court
liberally interpreted as seeking reconsideration, on various
grounds, of the denial of his second motion for collateral
relief under 2255.
We affirm the first three of the district court's recent
decisions for substantially the same reasons stated by that
court in each of its careful opinions of January 21, February
4, and February 21, 1992. We also affirm the district
court's fourth and fifth decisions of March 10, and March 24,
1992, disposing of petitioner's last two motions for
reconsideration, but on somewhat different grounds.
Petitioner argued that his sentence should be set aside
because prior to the date of the offense charged in his
indictment, his civil rights (including presumably his right
to possess firearms) had been restored by New Hampshire law.
The district court rejected this argument because New
Hampshire does not automatically grant to felons the right to
possess firearms. We find it unnecessary to address the
scope of New Hampshire law in this case, because the law in
effect at the time of petitioner's offense incorporated a
federal, and not a state law standard, for determining the
effect of petitioner's prior felony convictions.
Petitioner was indicted in February, 1988 for violating
18 U.S.C. app. 1202(a). 1202(a) was the law in effect on
November 3, 1986, the date petitioner was found in possession
of a firearm despite several prior felony convictions. Under
1202(a), the definition of a prior felony "conviction," for
purposes of determining the existence of predicate offenses,
is determined by federal, not state law. See Dickerson v.
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New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983). Since a
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state's later restoration of a convicted felon's "civil
rights" would not change the historical fact of the
conviction, under Dickerson it does not bar a conviction and
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sentence enhancement prescribed by 1202(a). Dickerson, 460
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U.S. at 111-12.
Effective November 15, 1986, 18 U.S.C. app. 1202(a),
was repealed and reenacted. The statute's felon-in-
possession provisions were incorporated into 18 U.S.C.
922(g), while the penalty enhancement provisions, in somewhat
broader form, were incorporated into 18 U.S.C. 924(e). At
the same time, the definition of "conviction" applicable to
federal firearms violations, contained in 18 U.S.C.
921(a)(20), was amended. The amendment redefined
"conviction," by requiring reference to the law of the
jurisdiction where the predicate conviction occurred. If
that jurisdiction set aside the conviction, issued a pardon
or restored the defendant's civil rights without expressly
providing that he may not possess firearms, the offense would
not constitute a "conviction" under the federal law.
By virtue of the general saving statute, 1 U.S.C. 109,
however, petitioner's case was properly prosecuted under
1202(a).
The repeal of any statute shall not have the effect
to release or extinguish any penalty, forfeiture,
or liability incurred under such statute, unless
the repealing Act shall so expressly provide, and
such statute shall be treated as still remaining in
force for the purpose of sustaining any proper
action or prosecution for the enforcement of such
penalty, forfeiture, or liability.
1 U.S.C. 109.
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The saving statute abolished the common-law presumption
that repeal of a criminal statute results in an abatement of
prosecutions for acts committed prior to the statute's
repeal. It fosters, instead, a Congressional policy of
avoiding technical abatements and a determination that one
who violates the law should not escape sanction by the mere
happenstance that the law was repealed after the criminal act
was committed. The saving statute is equally applicable to
statutory repeals coupled with reenactments (as here) as it
is to outright repeals. See Warden, Lewisburg Penitentiary
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v. Marrero, 417 U.S. 653, 660 (1974); Bradley v. United
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States, 410 U.S. 605 (1973).
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Since petitioner's offense was properly the subject of
indictment and conviction under 1202(a), despite the
statute's repeal and reenactment prior to petitioner's
indictment, we see no reason to now revisit the facts of his
case for the purpose of determining whether the predicate
"convictions" would be similarly defined under the later
amendment. The change made by the amendment to 18 U.S.C.
921(a)(20) seems to us to be the very type of substantive
change contemplated by the saving statute, as it redefines
the conduct that may result in liability. But cf. United
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States v. Kolter, 849 F.2d 541, 544 (11th Cir. 1988).
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In denying retroactive effect to the amendment to
921(a)(20), we join the majority of circuit courts that have
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ruled on the question. Davis v. United States, 972 F.2d 227,
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230 (8th Cir. 1992); United States v. Brebner, 951 F.2d 1017,
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1023 (9th Cir. 1991); United States v. Holley, 818 F.2d 351,
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353 (5th Cir. 1987).
We are aware that one circuit court has reached the
opposite result by applying the rule of statutory
interpretation described in Bradley v. School Board of
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Richmond, 416 U.S. 696 (1974). See United States v. Kolter,
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849 F.2d 541, 545 (11th Cir. 1988). In Bradley, it was
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reasoned that a court should apply "the law in effect at the
time it renders its decision, unless doing so would result in
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manifest injustice or there is statutory direction or
legislative history to the contrary." Bradley, 416 U.S. at
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711 (emphasis added). We have previously indicated that we
do not think this principle is ordinarily applicable to
changes in substantive criminal law. United States v.
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Havener, 905 F.2d 3, 5-6 (1st Cir. 1990). In any event, we
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also agree with those courts which have found in the
legislative history and statutory design of the amendment to
921(a)(20), indications of a Congressional direction to
apply the amendment prospectively only. See Brebner, 951
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F.2d at 1023 & n.6 (Congress manifested its intent that
amendment should not apply retroactively by expressly
delaying its effective date for six months while
simultaneously designating other statutory revisions for
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immediate effectiveness); Davis, 972 F.2d at 229-30 (Congress
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expressed intention to avoid retroactive effect by expressly
limiting use of amended 921(a)(20) definition to Chapter 44
of the Act, despite Congressional awareness that repealed
1202(a) would continue to apply to pending cases); Holley,
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818 F.2d at 353-54 (legislative history shows Congress
intended amendment to expand class of persons eligible for
relief under Act, not to change previous law).
For the reasons stated, we affirm the district court's
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dismissal of petitioner's 2255 motion and his four
subsequent motions.
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