United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3260

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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)

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Before BOWMAN, BEAM, and BYE, Circuit Judges.

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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
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).

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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
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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
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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
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).

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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
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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.
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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.