The government appeals from an order of the United States District Court for the Southern District of New York (Broderick, Judge), which granted petitioner a writ of habeas corpus and vacated his federal firearms conviction, on the ground that an earlier predicate felony conviction had been modified nunc pro tunc to a misdemeanor. Reversed and remanded.
Before: OAKES, MESKILL and PIERCE, Circuit Judges.
This is an appeal by the government from an order of the United States District Court for the Southern District of New York (Broderick, Judge) which granted Dennis Bonfiglio's petition for a writ of habeas corpus, pursuant to 28 U.S.C. section 2255, and vacated his federal firearms conviction. The ground relied upon was that Bonfiglio had an earlier felony conviction, which formed a predicate for one federal firearms count to which Bonfiglio pleaded guilty herein, but which had since been modified nunc pro tunc to a misdemeanor. Therefore, the district court reasoned, there existed no valid predicate with respect to that firearms count, thus rendering the plea tainted, and so the writ was granted. For the reasons stated below, we reverse and remand.
On September 2, 1969, Bonfiglio pleaded guilty in the United States District Court for the District of Columbia to a felony charge of escape, 18 U.S.C. § 751(a), and was sentenced to a term of two years probation by William B. Bryant, Judge. This conviction resulted from Bonfiglio's escape on October 31, 1967, from the Lorton Reformatory, a federal facility. Significantly, it also formed the predicate for one of Bonfiglio's federal firearms violations herein.
The government's evidence against Bonfiglio in this firearms case was developed at the trial of a co-defendant, Kevin Eybergen; it tended to show that in August 1980, Bonfiglio and Eybergen purchased a total of ten riot shotguns and assault rifles from a firearms dealer in Greenwich, Connecticut.*fn1 For each purchase, Bonfiglio filled out a federal firearms form falsely identifying himself as "Dennis Goodson" of 118 Staunton Street, Yonkers, New York, and presented a false driver's license to verify his identity. Bonfiglio also stated on the form that he had never been convicted of a crime punishable by more than one year in jail, despite his 1969 plea of guilty to a charge of felony escape, 18 U.S.C. § 751(a), for which the maximum sentence possible was five years imprisonment. After obtaining the weapons, Bonfiglio and Eybergen turned them over to a narcotics dealer who had provided the money to buy the guns and who paid them for making the purchases.
On the date set for Bonfiglio's trial, he appeared before Judge Broderick and pleaded guilty to three counts of the indictment. The counts to which Bonfiglio pleaded guilty involved: the making of false statements and exhibiting false identification to a firearms dealer, and falsely certifying that he had never been convicted of a crime punishable by imprisonment for more than one year, 18 U.S.C. § 922(a)(6); receiving firearms transported in interstate commerce having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, id. § 922(h)(1); and conspiracy, id. § 371. During the plea proceedings, Bonfiglio admitted that in purchasing the weapons he used a false name; that he failed to state on the firearms form that he "had a felony"; that he knew he had been previously convicted of a felony; and that he had conspired with co-defendant Eybergen to obtain the firearms. The district court accepted the plea, and the government moved to remand Bonfiglio as a danger to the community. In opposition to the government's motion, Bonfiglio's counsel suggested, without seeking to withdraw the guilty plea, that Bonfiglio used the name "Goodson" openly in his business dealings and merely as an Anglicization of his true name, and that Bonfiglio had previously obtained a legal opinion that his escape conviction did not make him a predicate felon under New York state law. The district court continued bail until sentencing.
On the date set for sentencing, Bonfiglio appeared with new counsel, who sought an adjournment on the ground that at the time of the predicate escape Bonfiglio was being treated under the Federal Juvenile Delinquency Act. The district court denied the request, holding that under Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980), the validity of the escape conviction did not affect Bonfiglio's status as a convicted felon at the time he completed the firearms form. Defense counsel then moved to withdraw the guilty plea, on the ground that it was involuntary. The district court denied this motion and sentenced Bonfiglio. A post-sentence hearing was held on Bonfiglio's claim that his plea was involuntary, and the claim was rejected.
On direct appeal, this Court affirmed the conviction by summary order. We held that Bonfiglio's claim with respect to the withdrawal of his plea amounted to no more than an assertion that he admitted guilt when he was in fact innocent, a claim that is insufficient to justify a withdrawal of a guilty plea. United States v. Bonfiglio, 672 F.2d 901 (2d Cir. 1981) (citing United States v. Saft, 558 F.2d 1073, 1082 & n.11 (2d Cir. 1977); United States v. Smith, 407 F.2d 33, 35 (2d Cir. 1969)). We noted further that Bonfiglio raised a claim*fn2 that he was not a previously-convicted felon, because at the time of the predicate offense he was being treated as a juvenile and therefore was subject only to a charge of violating 18 U.S.C. section 751(b), a misdemeanor. We held that this claim provided no valid ground for appeal, since under Lewis, one charged with federal firearms violations cannot litigate the validity of the predicate conviction in the firearms case. United States v. Bonfiglio, 672 F.2d 901 (2d Cir. 1981).
Thereafter, Bonfiglio petitioned for a writ of error coram nobis in the District Court for the District of Columbia, seeking modification of his felony escape conviction on the ground that he could properly only have been charged with a misdemeanor. On October 20, 1983, William B. Bryant, Judge, of the D.C. District granted the writ and modified the conviction to a misdemeanor, effective February 6, 1970, nunc pro tunc.
Bonfiglio then filed the subject petition for a writ of habeas corpus, under 28 U.S.C. section 2255. After hearing argument, Judge Broderick granted the petition and vacated Bonfiglio's firearms conviction on the ground that, pursuant to Judge Bryant's nunc pro tunc order, Bonfiglio was not a convicted felon at the time he filled out the firearms form and received the weapons.
The government's chief contention on appeal is that the district court's grant of Bonfiglio's habeas petition runs counter to the decisions of the Supreme Court in Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980), and Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983), and the intent of Congress in promulgating the federal gun ...