Petitioner, Dushon Hampton, appeals judgment denying Ms motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. For the following reasons, we VACATE and REMAND for further proceedings.
I.
On October 17, 1994, a grand jury in the Eastern District of Michigan returned a three count indictment against Petitioner, charging him with various federal firearms violations. Count One charged unlicensed dealing in firearms, in violation of 18 U.S.C. § 922(a), specifically the unlawful sale of twenty handguns to an undercover federal agent. Count Two charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Count Three charged possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). On December 12, 1994, Petitioner entered a plea of guilty to Count Two of the indictment. Pursuant to the plea agreement, the other two counts were dismissed. On April 2, 1996, this court affirmed his conviction.
See United States v. Hampton,
No. 95-1354,
The § 922(g) conviction was predicated on Petitioner’s 1986 state conviction for attempted carrying of a concealed weapon in violation of Michigan Compiled Laws § 750.227. Petitioner does not contest that this was a felony conviction. See Mioh. Comp. Laws §§ 750.227, 750.92. For the 1986 conviction, Petitioner was sentenced to one year of probation for the predicate offense and was discharged from such probation on May 8,1987.
II.
Petitioner was sentenced to a term of 27 months on March 28, 1995. According to the Government, he was released from incarceration on April 2, 1997, and completed his supervised release term on April 2, 1999. Petitioner filed his petition on October 4, 1996, while he was still incarcerated. Thus, although he is no longer imprisoned, Hampton has satisfied the “in custody” requirement. Where a prisoner’s sentence is not fully expired at the time of filing, but expires during the litigation of the collateral attack, the proceeding does not become moot.
See Maleng v. Cook,
III.
The certificate of appealability order in this case certified this appeal based on “the issue of whether Petitioner’s civil rights were restored for purposes of 18 U.S.C. § 921(a)(20)(B) upon completion of his probation stemming from his conviction in state court under Mioh. Comp. Laws § 750.227.” Relying on
United States v. Driscoll,
Consistent with § 921(a)(20), Petitioner’s earlier state conviction from 1986 was used as the basis for his subsequent charge that he violated § 922(g). 1 Section 922(g)(1) states that:
[i]t shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1). Congress has, however, enacted an exception to this general rule turning on the definition of “conviction.” Section 921(a)(20) provides that:
What constitutes a conviction of 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, ex-pungement, 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). In other words, if Petitioner’s rights were restored at the time he was charged with a violation of § 922(g), he could not be guilty of the charge, having failed to meet the definition of “conviction.” Here, pursuant to § 921(a)(20), this court looks to Michigan law to determine whether Petitioner was a convicted felon for purposes of section § 922(g)(1). The question turns on whether this court’s 1992 decision in
Driscoll, supra,
is the controlling precedent in this circuit on the relevant Michigan law or whether the Michigan Court of Appeals 1994 decision in
Froede v. Holland Ladder & Mfg. Co.,
IV.
Before reaching the merits of Petitioner’s claim, we must consider whether his claim is defaulted. Petitioner plead guilty to the § 922(g) charge. He did not challenge his status as a felon for purposes of the charge on direct review. Petitioner raises that argument for the first time in these habeas corpus proceedings. As such, Petitioner’s failure to challenge the validity of his plea on direct appeal causes his claim to be procedurally defaulted. In
Bousley v. United States,
We have strictly limited the circumstances under which a guilty plea may be attacked on collateral review. “It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson,467 U.S. 504 , 508,104 S.Ct. 2543 , 2546-2547,81 L.Ed.2d 437 (1984) (footnote omitted). And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and “ ‘will not be allowed to do service for an appeal.’ ” Reed v. Farley,512 U.S. 339 , 354,114 S.Ct. 2291 , 2300,129 L.Ed.2d 277 (1994) (quoting Sunal v. Large,332 U.S. 174 , 178,67 S.Ct. 1588 , 1590-1591,91 L.Ed. 1982 (1947)). Indeed, “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck,441 U.S. 780 , 784,99 S.Ct. 2085 , 2087,60 L.Ed.2d 634 (1979). In this case, petitioner contested his sentence on appeal, but did not challenge the validity of his plea. In failing to do so, petitioner procedurally defaulted the claim he now presses on us.
Id.
However, the Court continued, explaining that a petitioner could maintain his habeas claims but only if he could first demonstrate either: (1) that “cause” and “actual prejudice” existed to excuse his failure to raise the issue on direct appeal; or (2) “if he can establish that the constitu
Whether Petitioner can establish actual innocence on that count requires an analysis of the legal basis for Petitioner’s collateral attack on the merits. If Froede controls, Petitioner is, indeed, actually innocent of the § 922(g) count. In other words, our determination of controlling Michigan law will determine whether the convicted felon element of § 922(g) is present and whether Petitioner is actually innocent of that portion of his original indictment.
V.
To begin the analysis, this Court must determine whether the state law of Michigan had restored all or essentially all of the defendant’s civil rights. Our focus is particularly placed on the three civil rights considered key by the Sixth Circuit — 'the right to vote, hold public office, and serve on a jury.
See Driscoll,
Here, “Michigan law provides no statutory or constitutional definition of when restoration [of a convicted felon’s rights] occurs.”
Lyons v. United States,
A.
In
Driscoll,
The court then analyzed Michigan Court Rule 6.412(D) of Criminal Procedure which requires a court to excuse a juror whenever a challenge for cause clearly falls within one of the enumerated grounds set forth in Rule 2.511(D). More specifically, Rule 6.412, which governs criminal trials, adopts the challenges for cause included under Rule 2.511(D) and provides that “[i]f, after the examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.” Mich. Ct. R. 6.412(D)(1) and (2). Thus, “a felon may not sit on a [criminal] jury if his status is challenged.”
Driscoll,
Upon reviewing Rules 2.511(D) and 6.412(D), the court concluded that Michigan law had not restored the defendant’s right to serve on a jury.
Driscoll,
As we read Michigan law, ... [the defendant, a convicted felon,] would be automatically dismissed from jury service once either party brought his former conviction to the attention of the court in either a civil or criminal case. Furthermore, in a criminal case, Michigan court rules recommend that the trial court dismiss convicted felons on its own motion. While the trial court generally must decide whether the challenged person falls within a certain category, such a determination is not needed for convicted felons. As Judge Woods noted in United States v. Butler,788 F.Supp. 944 , 947 (E.D.Mich.1991), “A person either has been convicted of a felony or he has not. Once it is established that he has, the Michigan courts may not permit him to sit on a jury.”
Driscoll,
In doing so, this court rejected an earlier interpretation of Michigan law adopted by the Ninth Circuit. In
United States v. Dahms,
Several unpublished decisions within this Circuit prior to 1994 reaffirmed the holding in
Driscoll. See, e.g., Hudgins v. United States,
No. 91-2108,
B.
Froede v. Holland Ladder & Mfg. Co.,
The court then examined “whether a trial court ha[d] discretion to retain a convicted felon on a civil jury where a party challenges that juror for cause” under
Consistent with our holding that a convicted felon’s right to serve as a juror is restored upon completion of the sentence, we further hold that where a challenge for cause is timely made under MCR 2.511(D)(1) or (D)(2) and it is established that the juror does not satisfy one or more of the prerequisites under ... [section 600.1307a], the trial court must excuse the challenged juror.
Froede,
C.
In two unpublished opinions issued after
Froede,
this Circuit has applied
Driscoll’s
holding that Michigan law does not fully restore a convicted felon’s civil rights for purposes of § 922(g) because a Michigan felon is restricted from serving on a jury.
See United States v. Gilliam,
No. 94-1855,
Recently, two district courts outside the Sixth Circuit, however, have found that
Froede
rather than
Driscoll
is the controlling interpretation of Michigan law.
See United States v. Bolton,
Because
Froede
came after
Driscoll,
a case decided when there was little guidance on the issue from Michigan courts, this panel should not be restricted by the rule prohibiting one panel from overruling another. The rule is not absolute. As a recent case held, “[t]his panel cannot [reconsider a previous panel decision], however, absent an indication from the Tennessee courts that they would have decided [the prior decision] differently.”
Blaine Construction Corp. v. Ins. Co. of North America,
Generally, in order to analyze a conflict between a federal interpretation of state law and a subsequent determination by an intermediate state court:
Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise!.]
Hicks v. Feiock,
In fact, this Circuit has adopted a test for Michigan law that requires this panel to accept Froede:
The Michigan Supreme Court has not considered the question ... In order to determine the Michigan law, we thus turn to the decisions of the Michigan intermediate courts, which are binding authority in federal courts in the absence of any Michigan Supreme Court precedent. West v. American Telephone & Telegraph Co.,311 U.S. 223 ,61 S.Ct. 179 ,85 L.Ed. 139 (1940); Fidelity Union Trust Co. v. Field,311 U.S. 169 ,61 S.Ct. 176 ,85 L.Ed. 109 (1940); Woodruff v. Tomlin,616 F.2d 924 (6th Cir.), cert. denied,449 U.S. 888 ,101 S.Ct. 246 ,66 L.Ed.2d 114 (1980). The law of Michigan is controlled by a decision of the Michigan Court of Appeals until the Michigan Supreme Court or another panel of the Michigan Court of Appeals rules otherwise. In re Hague,412 Mich. 532 , 552,315 N.W.2d 524 (1982); People v. McDaniels,70 Mich.App. 469 , 473,245 N.W.2d 793 (1976); Hackett v. Ferndale City Clerk,1 Mich.App. 6 , 11,133 N.W.2d 221 (1965).
Wieczorek v. Volkswagenwerk,
Without such indication, we are forced to conclude that Michigan restores a felon’s right to sit on a jury upon completion of his sentence.
Froede,
Thus, all of Petitioner’s key rights were restored at the time he was charged
Bousley
makes clear that, for one who contests a guilty plea in a collateral proceeding, establishing “actual innocence” requires a showing of “factual innocence, not mere legal insufficiency.”
Bousley,
In light of our ruling today, the case will be remanded to allow Petitioner to establish actual innocence. Because Petitioner’s right to sit on a jury was restored when charged, nothing on the current record indicates that the government can establish guilt on the § 922(g) charge. If this were the end of the inquiry, Petitioner would be entitled to the relief requested and we would grant the writ of habeas corpus and vacate his original plea agreement. 4 However, establishing actual innocence on the § 922(g) charge alone is insufficient to grant the relief requested.
“In cases where the government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must extend to those charges.” Id. Petitioner must establish that he is actually innocent of Counts I and III of the indictment filed in this case but dismissed in consideration for the plea of guilty to Count II, the § 922(g) violation. Although we hold that the case on Count II was factually and legally insufficient on this record, this holding will entitle Petitioner to no relief without a subsequent showing of actual innocence on the forgone counts of the indictment.
VI.
Accordingly, we VACATE the denial of the petition for a writ of habeas corpus and REMAND the case to the district court for further proceedings consistent with this opinion to allow Petitioner the opportunity to make a showing of actual innocence on all charges presented in the indictment.
Notes
. In
United States v. Turner,
. The subsequent appeal of the Michigan court's decision in
Froede
was denied,
Froede v. Holland Ladder & Mfg. Co.,
. Legrone is, however, similar evidence of Michigan law. The Michigan Court of Appeals in Legrone upheld the conviction of a defendant where a juror who had been convicted of a felony was allowed to remain on the jury after she had been challenged for cause by the prosecutor. The court held that the trial judge had discretion to deny the challenge and, in any event, that the defendant had waived the issue when he expressed satisfaction with the jury even though he had peremptory challenges remaining.
. If this court were to vacate Petitioner’s conviction, the plea agreement would be vacated and the Government would be allowed to reinstate Counts One and Three of the original indictment.
See United States v. Lewis,