Walker v. United States
198 F.3d 811
11th Cir.
1999
Check Treatment

*1 certificate on Fowler’s such restriction America, rights. restoring political his civil and UNITED STATES Petitioner-Appellee, govern directly addressed the Swanson 13A-11-72(a) § contention ment’s the same provides Alabama 1975 Code weap on one form

statutory prohibition Zachery WALKER, Respondent- as at issue in Caron. possession Appellant. -11-72(a) provides as follows: “No 13A No. 98-9244. in this who has been convicted person committing or at state or elsewhere of Appeals, a crime of violence to commit tempting Eleventh Circuit. pos one in his pistol or have shall own However, control.” or under his session Dec. law at issue Massachusetts unlike the Caron, empowers the State law Alabama Paroles to restore

Board of Pardons and aof crime person convicted right to a firearm. Without possess

of violence certificate re limitation on the express Fowler, political rights and

storing civil civil law the restoration of

under Alabama the firearm rights

and restores political 13A-11-72(a). See limited

rights

Swanson, 916-17; ex F.2d Alabama Burr, 580 So.2d

rel Sokira

(Ala.1991) ( restora recognizing that the rights political privi civil and

tion of “all punish all

leges necessarily legal nullifies words, if for the offense. other

ment civil incorporates certain

the conviction par disqualifications, then political

and revives all civil specifically

don that certainly any remove

political rights must incapacities.”). legal all restor- granted certificate

Fowler rights without

ing political his civil and limiting prohibitions

reservations possess, or receive ship, transport, con- case he cannot be

firearms. 922(g)(1) possessing under

victed degree on his 1972 second

firearm based the state re- conviction because

burglary rights political him all civil

stored expressly limit-

and the was not certificate provid- manner contemplated

ed in the by Congress.

ed conviction. REVERSE Fowler’s *2 split with Unwilling

he can. create a majority, agree such a we also that he can. AND I. PROCEDURAL FACTUAL

BACKGROUND Walker, Zachary a convicted Appellant felon, indicted in in a one-count was a knowingly possessing indictment for .380 pistol caliber violation of 18 U.S.C. 1995, § 922(g)(1). In by he was convicted jury sentenced under the ACCA and Guidelines, 4B1.4, § Sentencing USSG Weil, GA, Atlanta, Amy Atty., Asst. U.S. imprisonment.1 to 188 court months’ This Petitioner-Appellee. for affirmed Walker’s conviction sentence Waldrop, Jesse Fed. Defender Thomas opinion. unpublished a 1996 Atlanta, GA, Respondent- Program, for Walker, States v. 89 F.3d 856 Cir. Appellant. 1996). petition His for writ of certiorari denied, with the was also States, 1996. Walker United 519 U.S. 944, 332, (1996). 117 S.Ct. 136 L.Ed.2d 245 1998, a state court held judge an ANDERSON, Judge, Before Chief evidentiary hearing voluntary on the 1979 HILL, COOK*, Senior Judge, Circuit manslaughter conviction.2 Walker’s coun- Judge. Senior District suggested sel had that the state plea evaluate the taken colloquy at the PER CURIAM: of guilty plea.3 time that conviction on the single Walker, appeal presents important parties This Other than none impression hearing present issue first in this circuit. the 1979 were at the 1998 Can prisoner, by filing hearing. a federal present any habeas The state did not corpus petition pursuant to 28 evidence. presented U.S.C. Walker evidence to 2255, challenge, reopen and reduce his his support contention that he had not sentence, federal apprised enhanced under been of the elements of the man- (ACCA), Armed Career slaughter Upon Criminal Act offense. the conclusion of 924(e), U.S.C. after of his proceeding, one three this uncontested the state conviction, state court convictions has court been vacated Walker’s 1979 date, vacated a state habeas action? To concluding that he had not entered a vol- untary our sister circuits have knowing plea held based on a suffi- (without expressly deciding) Alabama, Boykin indicated cient factual basis. * Cook, Jr., agreed. Honorable Julian Abele Senior U.S. The district court it entered Judge judgment against District for the Eastern District of Walker. Michigan, by designation. sitting before, 2. Years Walker had served his state 1.In Walker first filed motion va- confinement. cate his alleging sentence under Section application district court's of the transcript plea colloquy Sentencing ACCA and the Guidelines was by attorney, reads that Walker was asked fact, unconstitutionally-obtained based you, guilty shooting "Are one John- government responded, Lemans?”, state claim. The ad- ny responded, and Walker "Yes." " vising the court that Walker's claim not you, judge, When asked [D]o ... Walker, yet ripe. They claimed he did Zachary not have understand the nature as, cognizable litigate claim to charging you voluntary manslaugh- case with ?”, “Yes, yet state conviction had responded, not been set-áside. ter ... and Walker sir.” attacking these state 23 L.Ed.2d 274 is 238, 89 S.Ct. 395 U.S. successful re- may apply then he (1969). sentence en- opening of federal Walker, pursuant Then ex- hanced the state sentences. We 60(b), moved relief and Fed.R.Civ.P. *3 appropriate the opinion no on press sentence, re- federal from his 1998 ACCA disposition application. such an court vacate the the district that questing added.) (Emphasis Id. at 1739. three as one of his sentence enhanced been now had convictions state court concluded from this The district a new The district court ordered vacated.4 that 2255 highlighted Custis dicta Section re-computed without prepared and PSI be to vehicle which appropriate was the It then to the conviction. reference 1979 proceed.5 As Walker had been successful petition. 2255 Walker’s Section granted one of the attacking in his state no having part had to government, The pe- granted district court his Section 2255 appeals. now proceeding, in the state play tition, his and reduced reopened and federal sentence. ACCA REVIEW II. STANDARD OF 1994, in Custis was decided Since proceeding, a we Section 2255 circuits, other all that have consid de novo and factual legal issues review held, issue, also or indicated ered the have See a clear error standard. findings under pursuant that expressly deciding, without States, 148 F.3d v. Tannenbaum United corpus, a court federal habeas district to (11th Cir.1998). 1262, 1263 sentence, a federal may reopen and reduce has, in a federal defendant state once III. DISCUSSION court, a successfully prior attacked state States, 485, 511 U.S. v. United Custis conviction, enhancing previously used in (1994), 1732, 517 114 128 L.Ed.2d S.Ct. See States v. federal sentence. United under Court held that Section (1st Cir.1996); 199, 101 F.3d 201 Pettiford, 924(e), in federal (1st unless defendant Cardoza, 129 F.3d 6 v. United States a vio- sentencing claiming was proceeding Cir.1997); 72 Vaughn, 83 F.3d Young v. counsel, he had right to no lation of his (3d Bacon, Cir.1996); v. 94 United States to a collateral that time make (4th 158, Cir.1996)(citing n. 162 3 F.3d Id. at prior convictions. attack on state Custis, stating that “if Bacon succeeds 1738. The Court stated: proceeding in over future in a collateral conviction, federal law however, turning robbery his as recognize, did the Court Custis, review of him then to seek still enables ... who was Appeals to was enhanced due sentence that of his state federal custody” purposes

“in conviction”); v. state United time of his federal his at the convictions (5th Cir.1994); Nichols, 35, F.3d 924(e), may 30 36 attack sentencing under 1141, Rogers, 45 F.3d v. Maryland or United States sentences his state (7th Custis, and ob Cir.1995)(eiting 1143 review. See through federal habeas challenge 488, wants to Cook, serving Rogers that if 109 Maleng v. 490 U.S. S.Ct. convictions, (1989). he must do so juvenile his Custis 104 L.Ed.2d 540 If prisoner may federal ninety-three days initial 5. Under was after the 4. This correct federal to vacate or file motion petition had been denied. Since Section 2255 imposed vio- was if "the sentence sentence year passed had between the less than one Unit- or laws of the of the Constitution lation petition for writ of certiorari denial of the States, juris- was without or that the court ed filing petition, less the time the of the sentence, or imposed such diction petition was tolled when the statute was au- maximum was excess sentence was not pending, the statute of limitations law, subject is otherwise thorized violated. 28 U.S.C. § 2255. 28 U.S.C. collateral attack.” by way of Indiana or In reality, evidentiary hearing the state courts the 1998 corpus); plea habeas colloquy purely federal Clawson United an uncon (9th States, Cir.1995)(eit- proceeding, F.3d tested brought purpose Custis, ing suggesting that if a other than to have an defen effect dant United appeal succeeds on from state court States Government’s interest conviction, seeing not final at the time his to the faithful execution of federal sentencing, peti years “he should federal then law. trend recent has been sentence”); tion reopen to remove the federal partici as a Cox, (10th pant determining States v. 83 F.3d Cir. federal sentences. Garcia, 1996); application Congressionally United States F.3d The man Custis, Cir.1994)(citing Sentencing provide dated Guidelines math *4 noting sentences; apply ematically computed that defendant could for re charging of opening prosecutors sentence as a career offender discretion in may well fix a successfully after attacking sentence before indictment. The rule we corpus). conviction on a writ of habeas follow here removes the entire federal es agree We and follow suit.6 tablishment from the fixing federal sen repeat

tences miscreants. A local at torney for a federal appear defendant can IV. CONCLUSION jurist, before a state not by counseled the The order of the district court is AF- prosecutor, state whose in a interest nine FIRMED. end, teen-year old case at an (pres is to!) obtain a reduction in a federal sen HILL, specially Senior Circuit Judge, tence. concurring: Our sister circuits reach this result from appellant concedes, As government the reading their dictum in opinion the the seven other circuits to consider issue this Court in Custis v. United indicated, have either held or without ex- States, U.S. S.Ct. pressly deciding, appellee Walker’s fa- (1994). There, L.Ed.2d 517 the Court held vor. impressed by We are judgments that a collateral attack a prior state of our judges sister circuits. The in those conviction be could not maintained fed- obviously given circuits have careful atten- eral sentencing proceedings, but obiter tion to the issue. dicta, remarked that “[i]f Custis is success- ful attacking these state he case, the time of his may then apply reopening feder- original federal sentencing, Walker stood al sentence enhanced the state sen- convicted of the voluntary man- express tences. opinion on the slaughter. long He had since served his appropriate disposition applica- such Yet, time for this offense. the govern- as tion.” Id. at 1739. out, ably points ment his state court collateral attack nineteen- By observing that the attack could be year then, old state manslaughter sentence was brought persuaded Court has (now not contested the state executives at eight) appeal circuit courts of hearing. prosecutor showed no inter- the Court said that the defendant’s est the matter. The Assistant bring attack equaled winning Attorney, representing the Chief it. amI not so my reading sure of Executive, only real interested party, champion it in the face of such institution- standing had no to appear and contest. al uniformity. If the Supreme Court did versed, aligns 6. Our may decision with this circuit's indi he appropriate seek modification Hofierka, cation in United States v. 83 F.3d supervised of his release revocation sentence Custis, Cir.1996)(citing time”). at that stating that if defendant’s re- "conviction is appeal feel these courts of not intend what did, that. can correct it putting imprima- join

So we now judiciary upon this dele- of the federal

tur ar- authority to such sentencing

gation arrived at between may as be

rangements lawyer and a state new

a defendant’s With this proceeding.

looking a stale

said, opinion, ruefully and join in the I reluctance. great

with *5 INC., FOODS, CHARLES

ST.

Plaintiff-Appellant,

AMERICA’S FAVORITE CHICKEN

COMPANY, Defendant-

Appellee. 98-8193.

No. of Appeals,

United States

Eleventh Circuit. 20, 1999.

Dec.