In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1574

ALFRED J. GANT, also known as

ALFORD JONES GANT, also known as

A.J. GANT,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-CV-2095—Michael P. McCuskey, Chief Judge.

ARGUED SEPTEMBER 17, 2010—DECIDED DECEMBER 10, 2010

Before POSNER, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. Alfred Gant was found guilty of

one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Because Gant had at least

three prior convictions for a violent felony or a serious

drug offense, he was sentenced as an Armed Career

Criminal (ACC) to 188 months of imprisonment. After a
2 No. 10-1574

failed appeal and a successful collateral attack, Gant was

resentenced to 180 months of imprisonment. Gant then

filed a habeas corpus petition attacking the resentencing,

this time arguing that his resentencing counsel was

ineffective for failing to file a direct appeal at Gant’s

request and for not challenging his classification as an

ACC. Gant also claimed that the district court erred

when it resentenced him as an ACC because his civil

rights were restored for his three prior violent felony

convictions, making those convictions inapplicable for

ACC purposes. The district court rejected Gant’s claims,

finding Gant neither showed that he directed his sentencing counsel to appeal nor met his burden to establish that his rights were restored. After the district court

granted him a certificate of appealability, Gant timely

appealed. Because we agree that Gant failed in his evidentiary burdens, we affirm.

I. BACKGROUND

The procedural history of this case is extensive. We

will provide a brief overview of the case before proceeding to the facts relevant to Gant’s current appeal.

In 2003, Gant was found guilty of one count of possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1). Because Gant had at least three prior convictions for a violent felony or a serious drug offense,

the district court concluded that Gant qualified as an

ACC and sentenced him to 188 months of imprison-
No. 10-1574 3

Gant’s prior convictions used as predicates for ACC classifica- 1

tion include a 1970 armed violence conviction, a 1974 aggravated battery conviction, a 1978 aggravated battery conviction, and a 1985 drug conviction.

ment. Gant appealed his conviction to this court, 1

claiming that numerous trial errors tainted the guilty

verdict. We affirmed his conviction in United States v.

Gant, 396 F.3d 906 (7th Cir. 2005).

Gant then filed a habeas motion pursuant to 28 U.S.C.

§ 2255. Gant argued his counsel was ineffective for failing

to challenge the convictions underlying his classification

as an ACC and for failing to raise a Booker issue in his

appeal. Gant also claimed the district court erred when

the court, rather than the jury, made the factual determination regarding his prior convictions. While the

district court rejected most of his claims, the court

agreed with Gant that his appellate counsel was ineffective for not raising a Booker challenge. To remedy this

deficiency, the district court ordered Gant resentenced

and appointed him new counsel for resentencing.

On August 25, 2006, the district court held a resentencing hearing and reduced Gant’s sentence to 180

months. Gant did not bring any objections at the

resentencing hearing, nor did he appeal following the

amended judgment. Only on December 4, 2006, over

three months after his resentencing, did Gant file a

notice of appeal. We dismissed the appeal as untimely

pursuant to Fed. R. App. P. 4.

Gant then brought another habeas motion under 28

U.S.C. § 2255, the subject of his current appeal. In his
4 No. 10-1574

motion, Gant argued that the district court erred when

it resentenced him as an ACC. Because he received a

rights restoration letter from the Illinois Department of

Corrections, Gant claimed that his three prior violent

felony convictions could not be counted for ACC purposes. With those convictions removed from the ACC

calculation, he had only one prior drug conviction as a

properly countable offense, leaving him two shy of the

three necessary for sentencing as an ACC. To prove

this, Gant offered a letter, purportedly from the Illinois

Department of Corrections, which stated that Gant’s

rights to hold constitutional offices and licenses were

restored. Gant also claimed his resentencing counsel

was ineffective for failing to challenge his ACC classification and for not filing an appeal after Gant requested he

do so. The district court, under the reasonable impression that Gant was challenging his initial sentencing,

dismissed the motion as successive. On appeal, we

vacated the district court’s judgment and remanded the

case to the district court for a second look, holding

that Gant’s second motion was not successive because

it related to errors at the recent resentencing hearing.

After the case was remanded, the government filed a

response to Gant’s motion, questioning the authenticity

of Gant’s restoration letter and moving for an evidentiary

hearing. Gant then sought to correct his § 2255 motion.

In his revised motion, he claimed the letter he proffered

was not a photocopy of the actual letter (because there

was no available photocopier at the prison), but a

“manual reproduction.” Gant then attached another letter

to the revised motion. He claimed this letter was the one
No. 10-1574 5

he actually received from the Department of Corrections. Gant also attached a blurry document from the

Illinois Prisoner Review Board, which suggested that his

citizenship rights were restored. Gant continued to challenge the treatment of all three of his prior violent

felony convictions, but not his conviction for the drug

offense.

Judge McCuskey held an evidentiary hearing to

evaluate Gant’s letter and to hear other evidence

relevant to his ineffective assistance of counsel claims.

At the hearing, Gant testified that he received the

Illinois Department of Corrections restoration letter

sometime in 2001 and that it was the only document he

received regarding his civil rights. Gant also offered

another copy of the restoration letter at the hearing, one

he claimed was signed by a parole staff member. After

he received the restoration letter in 2001, Gant testified

that his girlfriend, Ruby Rodriguez, took the letter to the

parole office and had it signed by an office assistant. Gant

also testified to acts that he took after allegedly receiving the Department of Corrections letter, such as

registering to vote, which he claimed corroborated his

belief that his rights were restored. Rodriguez offered

similar testimony. Finally, Gant conceded that he had

never been sent the Prisoner Review Board document,

and that he obtained it in the course of preparing his

habeas motion.

Various state employees also testified at the hearing

about Gant’s offers of proof. Kevin Heard, a technician

at the Illinois Department of Corrections, testified the
6 No. 10-1574

restoration letters are form letters with characteristic

spacing and formatting. The letters state that the

offender’s rights to hold licenses and office are restored,

and are typically signed and mailed to the parolee’s

last known address. Heard testified that standard practice was to send a letter, but because the Department

did not keep a list of letters sent or copies of the actual

letters, he could not verify that a letter was generated,

signed, sent, or received. Heard then inspected Gant’s

proffered letters and, based on inconsistencies between

the letters themselves and between the letters and the

Department template, concluded that they were not

authentic. Kevin Tupy, of the Illinois Prisoner Review

Board, also testified, stating that the Board document

was not sent to Gant, and that the “citizenship” language

did not confirm that all of his rights were restored.

The district court also heard testimony concerning

Gant’s statements to his resentencing counsel. Gant

claimed he had met with his counsel once before the

resentencing hearing and advised him that his civil

rights had been restored as to some of his prior convictions. Gant went on to concede that he had not provided any documents to counsel and had not asked him

to investigate further. Gant also stated that he had

told counsel that he wanted to appeal the resentencing

order. Gant’s counsel then testified. He reported that

he did not recall Gant ever bringing up restoration of

rights. He also stated that he and Gant discussed the

possibility of filing an appeal, but after he advised

Gant that there were no meritorious issues to bring,
No. 10-1574 7

Gant decided not to appeal and did not direct him otherwise.

The district court denied Gant’s § 2255 motion, holding

Gant did not meet his burdens of proof to show that he

ordered his counsel to appeal or that his civil rights

were restored. The court then granted Gant a certificate

of appealability regarding his ACC classification and his

ineffective assistance of counsel claims. Gant timely

appealed.

II. ANALYSIS

Gant argues that the district court erred in denying his

§ 2255 motion to vacate, set aside, or correct his sentence. Upon a denial of a § 2255 motion, we review the

district court’s findings of fact for clear error and its

rulings of law de novo. Sandoval v. United States, 574

F.3d 847, 850 (7th Cir. 2009).

Gant first claims his resentencing counsel was ineffective for failing to file a direct appeal at Gant’s request.

When a defendant asks his attorney to pursue a direct

appeal and the attorney does not do so, it is per se ineffective assistance of counsel. Kafo v. United States, 467

F.3d 1063, 1069 (7th Cir. 2006). To succeed on such a

claim, however, a defendant must show that he actually

requested his attorney file an appeal. See Castellanos

v. United States, 26 F.3d 717, 719 (7th Cir. 1994) (“ ‘Request’

is an important ingredient in this formula. A lawyer

need not appeal unless the client wants to pursue that

avenue.”).
8 No. 10-1574

At the evidentiary hearing, the district court heard

testimony from Gant and his resentencing counsel,

Henry Welch, to determine whether Gant made such

a request. Gant testified that he told Welch he wanted to

appeal following the resentencing. He also pointed to

Welch’s statements during the resentencing hearing,

where Welch informed the court that he needed to preserve certain issues at Gant’s behest. Welch then

testified, stating that Gant never ordered him to appeal.

Welch claimed that the two discussed the matter after

the hearing, but after he told Gant that there were no

meritorious issues to appeal, Gant seemed to understand and agreed not to appeal. Believing Welch’s

account more credible than Gant’s, the district judge

found that Gant had never made a request for Welch

to appeal and, as such, that Gant’s ineffective assistance

claim lacked merit.

We note that a district court’s credibility findings are

entitled to “exceptional deference” and should be overturned only when they are clearly erroneous. Tezak v.

United States, 256 F.3d 702, 715-16 (7th Cir. 2001). Gant

argues the district court’s findings were incorrect

because Welch made statements at the evidentiary

hearing where he attempted to preserve certain issues

at Gant’s request. Gant claims that this, coupled with

his own testimony, proves he wanted to appeal and

specifically directed Welch to do so. But the highly experienced district judge heard that evidence, weighed

it against Welch’s account of events, and ultimately

found Welch’s testimony more credible. Gant now

asks us to reevaluate the district judge’s credibility determination, but a “credibility determination is not a basis
No. 10-1574 9

The statute does not appear to contemplate restoration of 2

rights for serious drug offenses. Only a “crime punishable by

(continued...)

for appellate review.” See United States v. Burke, 125

F.3d 401, 404 (7th Cir. 1997). Because Gant has failed

to meet his burden to show that he requested Welch

to file an appeal, this ineffective assistance of counsel

claim lacks merit.

Gant next claims his appellate counsel was ineffective

for failing to investigate and challenge his ACC classification. To establish ineffective assistance of counsel, Gant

must show that his counsel was deficient and that this

deficiency prejudiced him. Strickland v. Washington, 466

U.S. 668, 687 (1984); Bednarski v. United States, 481 F.3d

530, 535 (7th Cir. 2007). A failure to establish either

deficience or prejudice is fatal to Gant’s claim. Eddmonds

v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).

To show prejudice, Gant argues that he was erroneously classified as an ACC pursuant to 18 U.S.C.

§ 924(e)(1) and that his attorney’s failure to challenge that status harmed him at resentencing. Under

§ 924(e)(1), a defendant convicted of being a felon in

possession of a firearm must be sentenced to a minimum

of fifteen years’ imprisonment if the defendant has at

least three prior convictions for a violent felony or a

serious drug offense. But a “prior conviction” does not

include a conviction for which civil rights have been

restored, unless “the restoration of civil rights expressly

provides that the person may not ship, transport, possess,

or receive firearms.” 18 U.S.C. § 921(a)(20).2
10 No. 10-1574

(...continued) 2

imprisonment for a term exceeding one year” is subject to

the exclusion for convictions for which a person has had civil

rights restored. 18 U.S.C. § 921(a)(20). And only violent felonies,

in turn, are defined as “crime[s] punishable by imprisonment

for a term exceeding one year.” 18 U.S.C. § 924(e)(2).

We have described the exclusion in 18 U.S.C. § 921(a)(20)

as an “anti-mousetrapping provision.” Buchmeier v.

United States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc).

The provision prevents a felon from being lulled into

a false sense of security by a state notice that purports

to restore his rights without limitation, only to have

those same convictions later used for federal sentencing

enhancement purposes. See United States v. Vitrano, 405

F.3d 506, 510 (7th Cir. 2005); United States v. Erwin, 902

F.2d 510, 512-13 (7th Cir. 1990). To exclude a conviction

from counting as an ACC predicate, however, a defendant

must show, by a preponderance of the evidence, that

his rights were restored. Vitrano, 405 F.3d at 509.

To meet this burden in the district court, Gant claimed

that he received a notice from the State that fully restored

his civil rights. During the evidentiary hearing, Judge

McCuskey heard Gant’s and Rodriguez’s testimony regarding his receipt of the letter, along with testimony

from the government showing that the letters Gant

offered as proof of receipt were forgeries. Based on inconsistencies between Gant’s and Rodriguez’s testimony

and the conclusions of the government witnesses that

Gant’s letters were fake, Judge McCuskey found that
No. 10-1574 11

Gant failed to meet his burden to show that he received

a letter. This made his ACC classification appropriate

and did away with his ineffective assistance claim.

On appeal, Gant continues to argue that “the State of

Illinois fully restored all of [his] civil rights when he

received a notice from the State,” and as such, the

district court erred. Because Gant argues that his actual

receipt of the letter restored his rights, we focus solely

on whether he showed, by a preponderance of the evidence, that he received a letter. We note, however, that

we have not squarely addressed at what point—either

dispatch or receipt—a state notice effectively restores

civil rights for purposes of 18 U.S.C. § 921(a)(20). Compare

Buchmeier, 581 F.3d at 563-64 (“[N]o matter what state

law provides, a person who has received a ‘pardon,

expungement, or restoration of civil rights’ is not treated

as convicted for federal purposes ‘unless such pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport,

possess, or receive firearms.’ ”), and Vitrano, 405 F.3d at

510, with Buchmeier, 581 F.3d at 566 (“Even if a state

deems a person ‘convicted’ for purposes of its domestic

law, if it sends a document that seems to restore all

civil rights the conviction does not count for federal purposes unless the document warns the person

about a lingering firearms disability.”), and Erwin, 902

F.2d at 512-13.

Gant’s evidence of actual receipt was shaky at best.

While Gant claimed that he received one letter, he produced multiple versions of this letter, all of which were
12 No. 10-1574

inconsistent and contained errors that led the Department of Corrections employee to conclude that they

were inauthentic. By producing inauthentic (and possibly fraudulent) letters, Gant damaged his credibility,

making his later testimony that he received a letter

suspect. Inconsistencies between his testimony and

Rodriguez’s testimony further undermined his credibility. Moreover, while the Department employee

testified that standard practice was to send a restoration

letter after parole was complete, the employee could not

verify that a letter was actually dispatched and received.

Gant’s damaged credibility and the weakness of his

evidence led the district court to conclude that he failed

to show receipt of a notice, and we see no clear error in

this finding. Since Gant did not meet his burden, his

ACC classification stands and his ineffective assistance

claim falls for want of prejudice. See Strickland, 466 U.S.

at 697.

Gant finally argues that the district court erred when

it classified him as an ACC. This claim is unsuccessful

for a number of reasons. First, Gant did not bring this

claim on direct appeal; he has not established cause

and prejudice, so he may not proceed with it under

§ 2255. See Melvin v. United States, 78 F.3d 327, 329 (7th

Cir. 1996). Second, even if Gant did show cause and

prejudice, for the reasons discussed above, he is unable

to establish that the district court erred in sentencing

him as an ACC.
No. 10-1574 13

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s denial of Gant’s § 2255 motion.

12-10-10