                        UNITED STATES COURT OF APPEALS
Filed 12/23/96                  TENTH CIRCUIT

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

 v.                                                   Case No. 95-1207

 LESTER EUGENE FOWLER,                                (D.C. Nos. 94-CR-274-B,
                                                                  95-B-518)
                 Defendant-Appellant.                 (District of Colorado)



                               ORDER AND JUDGMENT*


Before ANDERSON, BALDOCK, and HENRY, Circuit Judges.



       Defendant Lester Eugene Fowler appeals from the denial of his motion under 28

U.S.C. § 2255.1 Mr. Fowler alleged in his § 2255 motion that the sentence he was serving

for unlawful possession of a firearm by a previously convicted felon, in violation of 18

U.S.C. § 922(g)(1), violated the United States Constitution. Mr. Fowler’s claim was

based on his contention that he was not subject to the provisions of § 922(g)(1) because,

although he had been previously convicted of a felony in Colorado, his civil rights had


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       1
         Initially, Mr. Fowler appealed pro se. A panel of this court appointed counsel and
set the case for oral argument.
been restored under Colorado law before he possessed the firearm in question. Mr.

Fowler also contended that he had received ineffective assistance of counsel in violation

of the Sixth Amendment to the United States Constitution.

       The district court held that the first of Mr. Fowler’s claims was procedurally barred

because he had failed to raise it on direct appeal and, in any event, that the claim failed on

the merits. The court also observed that Mr. Fowler’s counsel was competent. We have

jurisdiction under 28 U.S.C. § 2255, and we affirm.



                                     BACKGROUND

       On September 15, 1994 a federal grand jury returned an indictment charging Mr.

Fowler with four counts relating to his participation in an armed robbery, including:

unlawful possession of a firearm by a previously convicted felon in violation of 18 U.S.C.

§ 922(g)(1) (Count I); affecting commerce through robbery of a Gart Brothers Sporting

Goods store and taking thirty firearms by actual and threatened physical violence in

violation of 18 U.S.C. § 1951(a) and (b) (Count II); use of a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c) (Count III); and theft of thirty firearms in

violation of 18 U.S.C. § 922(u) (Count IV). On the advice of his court-appointed

counsel, Mr. Fowler entered into a plea agreement whereby he pleaded guilty to Counts I

and III and agreed to assist the government with its investigation of the crime; in

exchange, the government agreed to dismiss Counts II and IV of the indictment and to


                                              2
request downward departures in sentencing on Counts I and III for substantial assistance

and acceptance of responsibility.

      In the plea agreement, Mr. Fowler admitted that he had engaged in the following
conduct:

              On June 27, 1994 Mr. Fowler participated in an armed robbery of
       Gart Brothers Sporting Goods Store, a federally licensed firearms dealer
       located at 14401 East Exposition Avenue, Aurora, Colorado. The
       defendant who was armed with a firearm and an armed companion hid in
       the store until it was closed, whereupon they emerged and held two store
       employees at gunpoint. They forced the store manager to open the safe and
       the gun vault, and left the store with approximately $7500 in cash and 30
       firearms which were a part of the store’s firearms inventory. . . . Gart
       Brothers does substantial business which affects interstate and foreign
       commerce.

Rec. vol. I, doc. 9, ex. 2, at 3 (Plea Agreement and Statement of Facts Relevant to

Sentencing). The plea agreement also provided, and Mr. Fowler does not dispute, that

              [o]n August 12, 1994 the defendant, LESTER FOWLER, was
       arrested in an alley in Denver, Colorado by officers of the Denver Police
       Department. At the time of his arrest the defendant knowingly possessed a
       firearm . . . .
              Mr. Fowler was previously convicted in case number 87-CR-1400 in
       the City and County of Denver for the crime of First Degree Criminal
       Trespassing, a felony, the punishment for which could exceed imprisonment
       for more than one year.

Id. at 3-4.

       The district court sentenced Mr. Fowler to sixty-three months’ imprisonment for

Count I and sixty months’ imprisonment for Count III, to be served consecutively, and

ordered that he pay restitution in the amount of $15,819.68 and a special assessment in

the amount of $100.00. During the sentencing hearing, at which Mr. Fowler’s counsel

                                             3
was present, the court advised Mr. Fowler of his right to appeal the court’s sentencing

decision. Mr. Fowler did not appeal.



                                       DISCUSSION

       In this appeal, Mr. Fowler claims that his rights were violated in two different

ways. First, he appears to claim that his § 922(g)(1) conviction violated his due process

rights. Second, he argues that his Sixth Amendment right to effective assistance of

counsel was violated.



                             I. Conviction under § 922(g)(1)

       Mr. Fowler claimed in his § 2255 motion that he was not prohibited from carrying

a firearm under § 922(g)(1) because his civil rights had been restored by operation of

Colorado law upon his release from prison following his prior state conviction. However,

the district court held that Mr. Fowler was procedurally barred from raising this claim on

collateral review because he had “failed to demonstrate cause for his failure to present the

claim on appeal and prejudice suffered therefrom or that a reviewing court’s failure to

review the claim will result in a fundamental miscarriage of justice.” Rec. vol. I, doc. 10,

at 2. The court went on to hold in the alternative that the claim failed on the merits

because Mr. Fowler was indeed subject to prosecution under § 922(g)(1). We engage in




                                              4
de novo review of the district court’s rulings on legal questions in § 2255 proceedings.

United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir. 1995).

       “Section 2255 motions are not available to test the legality of matters which should

have been raised on direct appeal.” United States v. Warner, 23 F.3d 287, 291 (10th Cir.

1994). Mr. Fowler pleaded guilty to a violation of § 922(g)(1). He did not object to his

sentence, and he did not take a direct appeal. “A defendant’s failure to present an issue

on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show

cause excusing his procedural default and actual prejudice resulting from the errors of

which he complains, or can show that a fundamental miscarriage of justice will occur if

his claim is not addressed. Id. We therefore consider whether Mr. Fowler has made the

showing necessary to excuse his procedural default.



                                       A. “Cause”

       Mr. Fowler argues that he has demonstrated cause for his failure to appeal this

issue in that his trial counsel prevented him from doing so. “An attorney’s error provides

cause to excuse a procedural default only if the error amounts to constitutionally

ineffective assistance of counsel.” Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir.

1996). We note at the outset that by arguing that § 922(g)(1) does not apply to him, Mr.

Fowler raises a substantial question as to the adequacy of his counsel. Therefore, we first




                                             5
consider whether § 922(g)(1) was erroneously applied to Mr. Fowler in order to assess

whether there was cause to excuse his procedural default.

       Title 18, United States Code, Section 922(g)(1) provides in relevant part:

       It shall be unlawful for any person--

       (1) 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 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). The meaning of “crime punishable by imprisonment for a term

exceeding one year” is clarified in 18 U.S.C. § 921(a)(20). First, “what constitutes

conviction of such a crime shall be determined in accordance with the law of the

jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). Second:

       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.

Id.

       Mr. Fowler was convicted in 1987 in a Colorado court of First Degree Criminal

Trespass, a conviction which, the parties agree, would in the absence of a restoration of

civil rights have satisfied the requirements necessary to trigger § 922(g)(1). Furthermore,

the parties agree that Mr. Fowler’s civil rights were indeed restored pursuant to Article



                                               6
VII, Section 10 of the Colorado Constitution, which provides in relevant part that any
person

       who was a qualified elector prior to . . . imprisonment, and who is released
       therefrom . . . by virtue of having served out his full term of imprisonment,
       shall without further action, be invested with all the rights of citizenship,
       except as otherwise provided in this constitution.

Colo. Const. art. VII, § 10. Mr. Fowler argues, therefore, that his 1987 conviction should

not have been used as a predicate for his § 922(g)(1) prosecution.

       In its response to Mr. Fowler’s § 2255 motion in the district court, the government

relied on Colo. Rev. Stat. § 18-12-108. That section was amended effective July 1, 1994,

several weeks before Mr. Fowler’s arrest, to expand the definition of the crime of

“possession of weapons by previous offenders.” Whereas before July 1, 1994 the statute

prohibited firearms possession by persons previously convicted of only particular kinds of

felonies, including burglary, arson and crimes of violence, Colo. Rev. Stat. § 18-12-108

(1986), the 1994 amendment widened the scope of the prohibition to include convictions

for any prior felony.2 The government argued that, because the statute now prohibited

possession of a firearm by one who had previously committed any felony, including the



       2
        The amended statute provides:
       A person commits the crime of possession of a weapon by a previous
       offender if the person knowingly possesses, uses, or carries upon his or her
       person a firearm . . . or any other weapon that is subject to the provisions of
       this article subsequent to the person’s conviction for a felony, or subsequent
       to the person’s conviction for attempt or conspiracy to commit a felony,
       under Colorado or any other state’s law or under federal law.
Colo. Rev. Stat. § 18-12-108(1) (1995 Supp.) (emphasis added).

                                              7
criminal trespass offense of which Mr. Fowler had been convicted, Mr. Fowler was

specifically prohibited by Colorado law from possessing a firearm. Therefore, the

government contended, his 1987 conviction could properly be used as a predicate

conviction under 18 U.S.C. § 922(g)(1) because it did not fall within the category of

excepted convictions described in 18 U.S.C. § 921(a)(20). The district court was

persuaded by this argument, holding in its order denying the § 2255 motion that:

       Fowler was convicted of a crime punishable by imprisonment for a term
       exceeding one year. Although his civil rights had been otherwise restored,
       Colorado law expressly prohibited him as a convicted felon from possessing
       firearms. Colo. Rev. Stat. §18-12-108, as amended. Accordingly, Fowler
       had a prior felony conviction for purposes of 18 U.S.C. § 922(g)(1).

Rec. vol. I, doc. 10, at 2-3 (Order of the district court denying the § 2255 motion).

       We disagree. We believe that the 1994 Colorado statutory amendment did not

render Mr. Fowler’s 1987 trespass conviction a proper predicate for a subsequent §

922(g)(1) prosecution because the amendment did not negate the full restoration of his

civil rights under the prior law for the purposes of § 921(a)(20). The decisions of other

circuits and our interpretation of the relevant statutes convince us that this is the correct

application. Indeed, the government now responsibly concedes this in its Supplemental

Brief. See Aple’s Supp. Br. at 9.

       This Circuit has held that the automatic restoration under Colorado law of various

rights of citizenship to felons convicted of state offenses once they have completed their

sentences constitutes a “restoration” for purposes of § 921(a)(20). United States v. Hall,


                                               8
20 F.3d 1066, 1068-69 (10th Cir. 1994). Such a restoration ordinarily precludes use of

the prior conviction to support a § 922(g)(1) firearms possession charge. 18 U.S.C. §

921(a)(20). However, this Circuit has never considered whether a conviction for which

civil rights had been restored, but were later restricted by a subsequent legislative act

prohibiting previously convicted persons from possessing firearms, can be used to support

a § 922(g)(1) indictment.

       The Ninth Circuit was confronted with this question in United States v. Cardwell,

967 F.2d 1349 (9th Cir. 1992). There, the defendant had had his civil rights restored at

the time of his release from prison, but a subsequently enacted state law amendment had

barred felons from possessing firearms. The government argued in Cardwell that the

court should base its application of § 921(a)(20) on whether state law had prohibited the

defendant from possessing a firearm at the time that he was alleged to have violated §

922(g)(1), rather than at the time his civil rights had been restored. But the court rejected

this argument, reasoning that:

              Section 921(a)(20) states that section 922(g)(1) applies if the pardon,
       expungement, or restoration of civil rights “expressly provides” that the
       defendant may not ship, transport, possess, or receive firearms. The plain
       meaning of this use of the present tense is that the courts must determine the
       effect of the pardon, expungement, or restoration of civil rights at the time it
       is granted and cannot consider whether the defendant’s civil rights later
       were limited or expanded.

Id. at 1350-51 (citation omitted). We are similarly convinced that the use of the present

tense in the quoted portion of § 921(a)(20) clearly indicates that we are to consider only


                                              9
whether the law viewed at the time civil rights were restored “expressly provides” that the

defendant may not ship, transport, possess, or receive firearms. See United States v.

Haynes, 961 F.2d 50, 52-53 (4th Cir. 1992) (adopting the same interpretation of §

921(a)(20)); United States v. Traxel, 914 F.2d 119, 124-25 (8th Cir. 1990) (same). If the

law did not so expressly provide, then it is irrelevant whether the defendant’s civil rights

were subsequently limited. Because there was no such limiting provision in Colorado law

applicable to Mr. Fowler at the time his civil rights were restored, we conclude that the

government improperly relied upon his 1987 trespass conviction to support his §

922(g)(1) prosecution.

       As we have noted above, Mr. Fowler’s counsel never raised the issue of the

invalidity of the § 922(g)(1) charge during the plea proceedings, and he did not appeal

the § 922(g)(1) conviction. When an attorney allows a defendant to plead guilty to a

charge that is not a crime, substantial questions arise as to the constitutional sufficiency of

his or her performance. Nevertheless, in instances in which a defendant is charged with

more than one offense, a proper assessment of counsel’s conduct requires consideration

of the disposition of all of the charges against the defendant, not only the ones to which

the defendant pleads guilty. The conduct of an attorney who allows a defendant to plead

guilty to a charge that is not a crime will be deemed constitutionally deficient on

collateral attack only if, upon consideration of all of the charges against the defendant, the

conduct prejudiced the defendant. Cf. United States v. Andrews, 790 F.2d 803, 814 (10th


                                              10
Cir. 1986) (holding that the defendant was not prejudiced by his attorney’s conduct

because, among other reasons, “there is every reason to believe that [the defendant],

under the Plea Agreement, accomplished a net reduction in likely or possible felony

charges”), cert. denied, 481 U.S. 1018 (1987). Thus, in terms of the procedural default

inquiry in cases such as this, the resolution of the “cause” question depends upon the

resolution of the “prejudice” inquiry. In order to determine whether Mr. Fowler may

pursue his challenge to the § 922(g)(1) conviction through the instant § 2555 motion, we

therefore proceed to the prejudice prong of the procedural default inquiry.



                                      B. “Prejudice”

       We conclude that Mr. Fowler was not prejudiced by his procedural default because

he substantially benefited from his guilty plea. This conclusion is supported by several

state supreme courts and appellate courts which have held that if a defendant substantially

benefited from a plea bargain that he entered into voluntarily and intelligently, even if he

pleaded guilty to a charge that was not a crime, he is not permitted to collaterally attack

that conviction. See Carter v. Neal, 910 F. Supp. 143, 148 (D. Del. 1995); Downer v.

State, 543 A.2d 309, 312 (Del. 1988); People v. Bernard, 656 P.2d 695, 697 (Colo. 1983)

(en banc); People v. Waits, 695 P.2d 1176, 1178 (Colo. Ct. App. 1984), rev’d on other

grounds, 724 P.2d 1329 (Colo. 1986) (en banc); People v. Castro, 356 N.Y.S.2d 49, 50

(N.Y. App. Div. 1974), aff’d mem., 339 N.E.2d 620 (N.Y. 1975); People v. Burgan, 183


                                             11
N.W.2d 413, 414 (Mich. Ct. App. 1971); People v. Foster, 225 N.E.2d 200 (N.Y. 1967).

We believe that the substantial benefit that Mr. Fowler derived from pleading guilty to the

§ 922(g)(1) offense precludes a determination that any prejudice resulted from his

counsel’s failure to appeal the § 922(g)(1) conviction.

       Mr. Fowler benefited from his guilty plea by avoiding prosecution for the more

serious robbery and theft charges. Those charges, had Mr. Fowler been convicted of

them, would have carried penalties substantially heavier than the sentences actually

imposed. See 18 U.S.C. § 1951; 18 U.S.C. § 922(u); U.S.S.G. § 2B3.1; id. § 2K2.1;

United States Sentencing Commission, Guidelines Manual, “Sentencing Table” (Nov.

1993). Furthermore, by pleading guilty Mr. Fowler received the benefit of a § 5K1.1

motion for reduction of sentence for substantial assistance and a government

recommendation of a three-point reduction for acceptance of responsibility. We agree

with the state courts that have held that “since the defendant . . . ‘used the plea as a tool

for avoiding a more serious conviction . . . it would be the height of sophistry to vacate

the defendant’s plea of guilty.’” Downer, 543 A.2d at 313 (quoting Bernard, 656 P.2d at

697). On the other hand, if the attorney had appealed the § 922(g)(1) conviction and had

“won,” the appropriate remedy would have been to vacate the entire plea agreement and




                                              12
remand for a new trial, a result that probably would have inured to Mr. Fowler’s

detriment.3 See Santobello v. New York, 404 U.S. 257, 263 (1971).

       Because we hold that no prejudice resulted from Mr. Fowler’s failure to raise this

issue previously, he is now procedurally barred from raising it on collateral review. See

United States v. Frady, 456 U.S. 152, 167-68, 175 (1982); Warner, 23 F.3d at 291.



                        C. “Fundamental miscarriage of justice”

       Mr. Fowler contends that, even if he has not demonstrated cause and prejudice

excusing his procedural default, this court is compelled to reach his substantive claim

because a failure to do so would result in a fundamental miscarriage of justice. See

Warner, 23 F.3d at 291. In this regard, he argues that his conviction under § 922(g)(1)

was a legal impossibility because, as the government concedes, his civil rights had been

restored without limitation. The legal impossibility of guilt, he urges, renders him

“factually innocent.”

       We have previously explained what is required to satisfy the “fundamental

miscarriage of justice” standard:



       3
        An alternative remedy, which may be imposed in some cases where a plea
agreement is determined on appeal to be defective, is specific performance by the
breaching party. See Santobello, 404 U.S. at 263; United States v. Thomas, 580 F.2d
1036, 1038 (10th Cir. 1978). However, in the instant case, where the issue is not a failure
of the government to perform on a promise, that remedy could not sensibly have been
imposed.

                                            13
              The standard for demonstrating a “fundamental miscarriage of
       justice” is, as the words connote, quite stringent. It is not enough for
       Appellant merely to establish that, absent the error, he would have been
       acquitted (i.e., his “legal innocence”). Rather, appellant must make a
       colorable showing of factual innocence. In the context of a noncapital case,
       this means appellant must make a colorable demonstration that he is
       factually innocent of the offense for which he was convicted.

Id. (citations omitted). In deciding whether the “narrow exception,” McCleskey v. Zant,

499 U.S. 467, 502 (1991), applies in a particular case, we are guided by the “prototypical

example” in which “the State has convicted the wrong person of the crime” such that “it

is evident that the law has made a mistake,” Sawyer v. Whitley, 112 S. Ct. 2514, 2519-20

(1992). Application of this exception is “rare” and limited to the “extraordinary case.”

See Schlup v. Delo, 115 S. Ct. 851, 864 & n. 36 (1995). Mr. Fowler does not call our

attention to a single case in which a court has relied on the exception to consider the

merits of an otherwise procedurally defaulted challenge to a guilty plea, and independent

research reveals no such cases.

       In light of this amplification of the meaning of the term, and the extreme

limitations on its proper invocation, we hold that Mr. Fowler’s predicament simply does

not fit the description. First, although Mr. Fowler was “factually innocent” of the §

922(g)(1) charge, he admitted that he was not “factually innocent” of the more serious

robbery and theft charges. Mr. Fowler admitted in the plea agreement that he and his

accomplice had held two store employees at gunpoint and had stolen thirty firearms and

$7500 in cash, conduct which the district court appropriately characterized at the


                                             14
sentencing hearing as “extremely serious,” Rec. vol. I, doc. 9, ex. 2. Second, the plea of

guilty to the two firearms counts was plainly a tactical decision to avoid prosecution for

the more serious crimes as to which he also admitted guilt. Third, after benefiting from

his plea in this way, Mr. Fowler then failed to take a direct appeal. That too was probably

a wise tactical decision. Had he prevailed on appeal, he would have had his plea vacated

and again risked facing prosecution for the charges dismissed as a result of the plea. He

now asks us on collateral review to excise from his plea agreement a conviction as to

which he has admitted guilt, from which he has gained a favorable plea bargain, and

which he has declined to challenge on direct appeal. Only a hypertechnical construction

of “factual innocence” could lead us to conclude that the facts of this case constitute a

fundamental miscarriage of justice. We decline to so hold.



                           II. Ineffective assistance of counsel

       The second claim in Mr. Fowler’s § 2255 motion was that he had received

constitutionally ineffective assistance of counsel in violation of his Sixth Amendment

rights. The government did not address this issue in its response to the § 2255 motion. In

denying the motion, the district court did not explicitly rule on this issue, perhaps because

it received so little attention in the briefs. However, the court did note that “Fowler was

represented by competent counsel at all stages of the criminal action.” Rec. vol. I, doc.

10, at 2. Even if this observation was not a ruling, we may still decide the issue because


                                             15
“all of the pertinent facts are in the record before us.” See Laidley v. McClain, 914 F.2d

1386, 1394 (10th Cir. 1990). Further, there is no need in considering this issue to engage

in the kind of procedural default inquiry that we conducted above: the procedural bar rule

does not apply to ineffective assistance of counsel claims raised in a defendant’s first §

2255 motion. United States v. Galloway, 56 F.3d 1239, 1241 (10th Cir. 1995).

       The record is sufficient for us to conclude, analyzing the issue de novo, that Mr.

Fowler did not receive constitutionally ineffective assistance of counsel, either in the

decision to accept the plea bargain or in the decision not to appeal his § 922(g)(1)

conviction, because he was not prejudiced by any error his counsel may have made, as

required by Strickland v. Washington, 466 U.S. 668, 693 (1984). A defendant who

claims that he received ineffective assistance of counsel in entering a guilty plea must

demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart,

474 U.S. 52, 59 (1985); United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993),

cert. denied, 114 S. Ct. 1236 (1994). Such a showing “depend[s] largely on whether [he]

likely would have succeeded at trial.” See Hill, 474 U.S. at 59. Here, Mr. Fowler has

made no more than the bare formulaic assertion that, but for his counsel’s advice, he

“would not have plead [sic] guilty or waived his appeal rights.” See Aplt’s Opening Br.

at 12. However, we conclude that this claim is not credible given the seriousness of the




                                             16
charges that Mr. Fowler avoided by not going to trial and the absence of any offered

reason why he might have been confident of an acquittal.

       For these reasons, and because we conclude, as discussed above, that Mr. Fowler

was not prejudiced by the decision not to appeal, we reject his claim of ineffective

assistance of counsel.



                                      III. Conclusion

       For the foregoing reasons, that is, because (1) Mr. Fowler is procedurally barred

from raising his § 922(g)(1) claim and (2) he has not demonstrated the prejudice

necessary to prevail on a claim of ineffective assistance of counsel, we AFFIRM the order

of the district court.

       The mandate shall issue forthwith.

                                                   Entered for the Court,


                                                   Robert H. Henry
                                                   Circuit Judge

Judge Anderson concurs in the Order and Judgment, except for Part I.C., and concurs in

the disposition of the case set out in the conclusion.




                                              17
