
USCA1 Opinion

	




          November 17, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  92-1438                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ARTHUR RUMNEY,                                Defendant, Appellant.                                 ____________________                                     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                                 ___________________          No. 92-1438                                          UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ARTHUR RUMNEY,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Arthur Rumney, on brief pro se.               _____________               Jeffrey  R. Howard,  United  States Attorney,  and Peter  E.               __________________                                 _________          Papps,  First Assistant  United  States Attorney,  on Motion  for          _____          Summary Disposition.                 Per Curiam.  Petitioner  was convicted of being  a felon                 __________            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                                  ______________    ______            (1st Cir.),  cert. denied, 491  U.S. 908 (1989).   Petitioner                         ____________            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,            ______________     ______            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.                                                         ___ _________            New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983).  Since a            ______________________            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                              _________                                         -4-            sentence enhancement prescribed by    1202(a). Dickerson, 460                                                           _________            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.                                         -5-                 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                                      ___  ______________________________            v. Marrero,  417  U.S. 653,  660  (1974); Bradley  v.  United               _______                                _______      ______            States, 410 U.S. 605 (1973).              ______                 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                                                          _______  ______            States v. Kolter, 849 F.2d 541, 544 (11th Cir. 1988).                 ______    ______                 In  denying retroactive  effect  to the  amendment to               921(a)(20), we join  the majority of circuit courts that have                                         -6-            ruled on the question.  Davis v. United States, 972 F.2d 227,                                    _____    _____________            230 (8th Cir. 1992); United States v. Brebner, 951 F.2d 1017,                                 _____________    _______            1023  (9th Cir. 1991); United States v. Holley, 818 F.2d 351,                                   _____________    ______            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                                           _______      _________________            Richmond,  416 U.S. 696 (1974).  See United States v. Kolter,            ________                         ___ _____________    ______            849 F.2d  541,  545 (11th  Cir. 1988).   In  Bradley, it  was                                                         _______            reasoned  that a court should apply "the law in effect at the            time it renders its decision, unless doing so would result in                                          ______            manifest  injustice   or  there  is  statutory  direction  or            legislative history  to the contrary."  Bradley,  416 U.S. at                                                    _______            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.                                                        ______________            Havener, 905 F.2d 3, 5-6  (1st Cir. 1990).  In any  event, we            _______            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                                                        ___  _______            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                                         -7-            immediate effectiveness); Davis, 972 F.2d at 229-30 (Congress                                      _____            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,                                                                  ______            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                                             ______            dismissal  of  petitioner's      2255  motion  and  his  four            subsequent motions.                                   __________________                                 __________________                                          -8-
