                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3260
                                  ___________

George Olbert Hood,                    *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
United States of America,              *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: June 9, 2003

                                 Filed: September 11, 2003 (Corrected: 09/19/03)
                                  ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      The Government appeals the decision of the District Court granting George
Olbert Hood's petition to vacate his sentence under 28 U.S.C. § 2255 (2000) on the
basis of ineffective assistance of counsel. Because the District Court's decision
conflicts with established precedent of this Circuit, we reverse.

      In 1986, Hood was convicted in Minnesota state court of criminal sexual
misconduct. Three years later, following Hood's completion of his sentence, Hood
was issued a "Certificate of Discharge and Restoration to Civil Rights." Hood's
certificate of discharge did not contain any express restrictions on Hood's right to
possess a firearm.1 On January 7, 1998, a federal jury found Hood guilty of being a
felon in possession of ammunition and a felon in possession of a firearm, see 18
U.S.C. § 922(g) (1994 & Supp. V), which make it unlawful for "any person who has
been convicted in any court of, [sic] a crime punishable by imprisonment for a term
exceeding one year . . . to possess . . . in or affecting commerce, any firearm or
ammunition." The predicate felony for these offenses was Hood's 1986 conviction
in Minnesota state court for criminal sexual misconduct. The District Court
sentenced Hood to seventy-two months of imprisonment on these felon-in-possession
counts. We affirmed his conviction. United States v. Hood, 183 F.3d 744 (8th Cir.
1999), cert. denied, 531 U.S. 1045 (2000). Subsequently, Hood brought a § 2255
petition seeking to vacate his sentence, alleging ineffective assistance of his trial
counsel, Faison Sessoms.

       At the evidentiary hearing on Hood's petition, Sessoms testified that he had
practiced criminal law since 1983 and was regularly appointed by the Federal Public
Defender's office to represent defendants in court. Sessoms further testified that he
had handled approximately one thousand criminal matters, including twelve federal
jury trials. Notably, Sessoms stated that he was familiar with Eighth Circuit
precedent on the issue of whether a felon who had been issued a certificate of


      1
          The certificate states in full:

      This is to certify that George O. Hood who was on the 7th day of [July],
      1986 sentenced to the Commissioner of Corrections by the District
      Court of Hennepin County, has completed such sentence and is hereby
      discharged this 3rd day of December 1989; and that pursuant to
      Minnesota Statutes, Section 609.165 the said George O. Hood is hereby
      restored to all civil rights to full citizenship, with full right to vote and
      hold public office, the same as if such conviction had not taken place.

Certificate of Discharge and Restoration to Civil Rights (Dec. 3, 1989).

                                            -2-
discharge that did not expressly bar possession of a firearm could possess a firearm
under federal law; he had argued and lost a similar issue before our Court in United
States v. Ellis, 949 F.2d 952 (8th Cir. 1991). Because of this precedent, Sessoms
apparently determined that such a legal argument in Hood's case would be futile.
After meeting with Hood, Sessoms decided that the best defense Hood could offer the
jury was that on the day of his arrest, Hood did not actually possess the firearm, a .38-
caliber revolver, or any bullets. At his trial, Hood testified to that effect. Sessoms
acknowledged during the evidentiary hearing that he did not review Hood's certificate
of discharge and that, had he done so, he might have made an equitable estoppel
argument to the jury that Hood was entitled to possess the pistol and ammunition.

        In granting Hood's motion to vacate his sentence, the District Court reasoned
that if Sessoms had moved to dismiss Hood's felon-in-possession indictment on the
basis that Hood's certificate of discharge did not expressly bar Hood from possessing
the pistol and ammunition, "there is a reasonable probability" that the District Court
would have granted the motion because the plain language of 18 U.S.C. § 921(a)(20)
(1994 & Supp. V) required Hood receive express notification of such a prohibition
in order for his prior Minnesota felony conviction to count as a predicate offense for
purposes of whether he was a felon-in-possession. Findings of Fact, Conclusions of
Law and Order Granting Petitioner's § 2255 Motion ("Order") at 16–17 (Sept. 10,
2002). Accordingly, the District Court concluded that Sessoms's representation was
ineffective and that his performance prejudiced Hood.

       We review a district court's grant of a § 2255 motion, based solely on a legal
conclusion, de novo. United States v. Nelson, 109 F.3d 1323, 1324 (8th Cir. 1997).
To prevail on his ineffective assistance of counsel claim, Hood must establish that
Sessoms's representation was deficient and that but for Sessoms's alleged
"unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). We consider Sessoms's
"conduct at the time of his representation of [Hood] and we avoid making judgment

                                          -3-
based on hindsight." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir.), cert.
denied, 531 U.S. 885 (2000).

       In this case, we conclude that Sessoms's conduct was not deficient because at
the time of Hood's trial (as it is now as well), the District Court would have been
obligated under Eighth Circuit precedent to deny a motion to dismiss Hood's
indictment that was premised on the argument that his 1986 Minnesota conviction
could not serve as a predicate felony offense for purposes of prosecution under
§ 922(g).

       In order for Hood's prior Minnesota conviction to serve as a predicate offense
for the felon-in-possession statute, it must satisfy the requirements of § 921(a)(20).
That statute provides that "[w]hat constitutes a conviction . . . shall be determined in
accordance with the law of the jurisdiction in which the proceedings were held."
§ 921(a)(20); see also United States v. Wind, 986 F.2d 1248, 1250 (8th Cir. 1993)
(noting that "state law determines what constitutes a prior state conviction for
purposes of federal firearm statutes"). However, § 921(a)(20) also states that "[a]ny
conviction . . . for which a person . . . has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless such . . . restoration of
civil rights expressly provides that the person may not ship, transport, possess, or
receive firearms." Id.

       As noted, Hood was convicted in Minnesota state court in 1986 of criminal
sexual misconduct and three years later, following his completion of that sentence,
was issued a certificate of discharge restoring his civil rights. The certificate did not
state Hood was prohibited from possessing firearms. Subsequently, Hood returned
to his old criminal ways and was arrested in 1997. Stemming from that arrest, Hood
was convicted of being a felon-in-possession (for possessing a .38-caliber pistol and
bullets for that gun). Hood's 1986 Minnesota conviction served as the predicate
felony offense for that charge. The District Court determined that Hood could not

                                          -4-
have been charged with being a felon-in-possession because the plain language of
§ 921(a)(20) required that a person whose civil rights were restored must receive
express notification prohibiting possession of a firearm. See Order at 16. In
particular, the District Court appeared to believe that Hood in fact had his civil rights
restored and that because his certificate of discharge did not expressly prohibit his
possession of firearms, his prior Minnesota conviction could not serve as a predicate
offense for the felon-in-possession charge. In reaching this conclusion, the District
Court declined to apply binding precedent of our Circuit and instead embraced the
reasoning of Fifth, Seventh, Ninth, and D.C. circuits, which have rejected our
approach to interpreting § 921(a)(20). Id. at 11, 14. The District Court, however, is
bound, as are we, to apply the precedent of this Circuit. See United States v. Collins,
321 F.3d 691, 698 n.5 (8th Cir. 2003), petition for cert. filed, (U.S. Aug. 18, 2003)
(No. 03-6089).

       The law of this Circuit requires that Hood's Minnesota felony conviction count
as a "conviction" for purposes of §§ 921(a)(20) and 922(g). We have previously
concluded that a person in Hood's position has not had his civil rights restored for
purposes of § 921(a)(20), regardless of any restoration of civil rights included in a
certificate of discharge. The reason for this is that at all times relevant to this case
Minnesota law prohibited a felon convicted of a violent crime from possessing a
firearm for ten years after his or her release or discharge from sentence. See Minn.
Stat. § 624.713 subd. 1(b) (1998) (amended by Act of April 28, 2003, ch. 28, 2003
Minn. Sess. Law (S.F. 842)).2 Section 624.713 subd. 1(b), which directly applies to
this case, trumps Hood's certificate of discharge on the issue of whether Minnesota
restored his civil rights to possess firearms. This statute prohibited Hood from
possessing a firearm for ten years after the date of his discharge in 1989. Hood's


      2
       The statute has recently been amended to impose a lifetime ban on firearm
possession for felons convicted of violent crimes. See, e.g., Minn. Stat. § 609.165
subd. 1(a).

                                          -5-
felon-in-possession charge arose from his arrest in 1997, less than ten years from his
state discharge.

       As we stated in United States v. Traxel, "Minnesota felony convictions for
which civil rights were restored after the enactment of section 624.713 subdivision
1(b) do not constitute convictions 'for which a person has had civil rights restored'
within the meaning of section 921(a)(20)." 914 F.2d 119, 124 (8th Cir. 1990). In
other words, Hood, for purposes of his § 922(g) conviction, did not have his civil
right to possess a firearm restored because Minnesota law still prohibited him from
possessing a firearm for ten years after his discharge from sentence. See Minn. Stat.
§ 624.713 subd. 1(b). Moreover, we do not think Traxel is distinguishable merely
because it "did not discuss the effect of the certificate Minnesota hands to discharged
prisoners." United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994). On the
contrary, as we recently reiterated in Collins, the "fact that the order of discharge
itself did not contain an express limitation on the right to possess firearms is not
controlling." Collins, 321 F.3d at 697(quoting Wind, 986 F.2d at 1252 (Magill, J. &
Hansen, J. concurring)); see also Davis v. United States, 972 F.2d 227, 230–31 (8th
Cir. 1992) (holding that defendant's prior Nebraska felony conviction was properly
counted for sentence enhancement purposes even if defendant's certificate of
discharge did not include the express limitation under § 921(a)(20)), cert. denied, 507
U.S. 950 (1993). In short, following the precedent of this Circuit, Hood's 1986
conviction does constitute a conviction for purposes of the § 922(g) charge.

      Accordingly, we conclude that the District Court erred in finding that
Sessoms's representation of Hood was deficient because it was reasonable for
Sessoms to assume that the District Court would apply the precedent of this Circuit
and deny any motion to dismiss Hood's indictment on the basis that Hood was entitled
to possess the pistol and ammunition.




                                         -6-
       During oral argument of this case, Hood's counsel acknowledged that our
precedent would require reversal of the District Court's decision. Nonetheless, Hood
urges that we should affirm the granting of his petition because Sessoms's failure to
investigate the certificate of discharge prevented Hood from raising a defense of
"entrapment by estoppel." Br. of Appellee at 19. To prevail on this defense, Hood
would have had to demonstrate that he reasonably relied on a statement by the
government and that the government's statement misled him into believing his
conduct was legal. See United States v. Benning, 248 F.3d 772, 775 (8th Cir.), cert.
denied, 534 U.S. 922 (2001). According to Hood, had this defense been raised by
Sessoms, "a jury could entertain a reasonable doubt based on the certificate restoring
Mr. Hood's civil rights . . . 'as if such conviction had not taken place.'" Br. of
Appellee at 20. We reject this argument. Nothing in Hood's certificate of discharge
said Hood could possess a weapon. The certificate was silent on that issue. It is
impossible for Hood to show any entrapment because he has failed to demonstrate
any affirmative misrepresentation by the government. Simply put, Sessoms's
representation of Hood was not deficient for failing to advance a defense that was
devoid of legal merit.

     For the reasons stated, we reverse the judgment of the District Court granting
Hood's § 2255 petition.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -7-
