Fehr v . NHSP Warden CV-03-058-M 11/04/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jonathan Fehr, Petitioner

v. Civil N o . 03-58-M Opinion N o .

Jane Coplan, Warden, New Hampshire State Prison, Respondent

O R D E R

Jonathan Fehr, a state prisoner, seeks habeas corpus relief

from his state court conviction for unlawful possession of a

firearm by a convicted felon. See

.

Specifically, he claims his trial counsel’s performance was

constitutionally deficient insofar as counsel failed to raise a

“mistake of law” or “entrapment by estoppel” defense. Respondent

moves for summary judgment. Although the time for filing an

objection passed roughly three months ago, Fehr has not objected

or otherwise responded to that motion.

For the reasons set forth below, the claims raised in Fehr’s

petition are without merit and, therefore, respondent is entitled

to judgment as a matter of law. Background

In 1993, Fehr was convicted in the Lawrence (Massachusetts)

District Court of a felony - larceny of a motor vehicle or

trailer, in violation of

8 .

Approximately six years later, in 1999, Fehr purchased a Browning

rifle and ammunition from Heritage Firearms, in Nashua, New

Hampshire. As part of that transaction, Fehr was required to

complete a “Firearms Transaction Record,” also known as an “ATF

Form 4473.” Among other things, that form requires the

prospective purchaser to state whether he or she has ever been

convicted, in any court, of a felony. In response to that

question, Fehr wrote “no” in the blank space provided,

notwithstanding his Massachusetts felony conviction six years

earlier.

As required by federal law, the firearms dealer contacted

the FBI center in Virginia and entered into the national instant

criminal background check system (also known as “NICS”) the

information that Fehr had provided on the Form 4473. The system

advised the dealer to “proceed” with the sale. In other words,

the NICS system did not contain any record of Fehr’s previous

2 felony conviction. S o , in light of Fehr’s (inaccurate) statement

on the Form 4473, and the NICS system’s statement to “proceed,”

the dealer sold Fehr the firearm.

Later that same month, Fehr was arrested on unrelated

charges. He subsequently authorized police to search his

apartment in Nashua, New Hampshire, where they located the

Browning rifle and ammunition Fehr had recently purchased. In

December of that year, Fehr was indicted by a state grand jury

and charged with unlawful possession of a firearm by a convicted

felon, in violation of N.H. Rev. Stat. Ann. (“RSA”) 159:3. On

October 2 4 , 2001, following a bench trial, Fehr was found guilty

and, subsequently, sentenced to three to six years at the New

Hampshire State Prison. Fehr’s conviction was affirmed on appeal

to the New Hampshire Supreme Court in an unpublished order dated

August 2 0 , 2002.

In October of 2002, Fehr filed a motion for a new trial in

the state superior court arguing that: (1) he should have been

acquitted under a “mistake of law” or “reliance” defense because

he relied on the “proceed” message from the NICS system as proof

3 that he was legally entitled to possess a firearm

(notwithstanding his prior felony conviction); and (2) his

appointed counsel was ineffective because he failed to raise such

a defense at trial. That motion was denied by margin order, as

was Fehr’s motion for reconsideration. He then appealed to the

New Hampshire Supreme Court, which declined to accept his appeal.

This proceeding followed, in which Fehr again advances his

ineffective assistance of counsel claim.

Discussion

I. Legal Framework.

Under the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”),

(d), the standard of review

applicable to a state inmate’s petition for habeas corpus varies,

depending upon the means by which the state court resolved the

petitioner’s underlying claims. If the state court addressed

those claims on the merits, this court’s standard of review is

highly deferential. To prevail under those circumstances, the

petitioner must demonstrate that the state court’s adjudication

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

4 the State court proceeding.”

(d)(2).

Alternatively, habeas relief may be granted if the petitioner

demonstrates that the state court’s resolution of the issues

before it “resulted in a decision that was contrary t o , or

involved an unreasonable application o f , clearly established

Federal law, as determined by the Supreme Court of the United

States.”

(d)(1). See also Williams v . Taylor,

6 2 , 399 (2000).

Importantly, however, when the state court has not addressed

the substance of the petitioner’s claims on the merits, this

court considers those claims de novo. See, e.g., Gruning v .

Dipaolo,

9 , 71 (1st Cir. 2002) (holding that the

deferential standard of review prescribed by section 2254(d) does

not apply to a state inmate’s habeas petition when the state

appellate court failed to address the petitioner’s constitutional

claim); Fortini v . Murphy,

9 , 47 (1st Cir. 2001)

(noting that “AEDPA’s strict standard of review only applies to a

‘claim that was adjudicated on the merits in state court

proceedings,’” and concluding that “AEDPA imposes a requirement

of deference to state court decisions, but we can hardly defer to

5 the state court on an issue that the state court did not

address.”), cert. denied,

(2002). See generally

(d).

Because no state court ever addressed Fehr’s ineffective

assistance claim on the merits (the trial court denied Fehr’s

motion for new trial in a margin order and the supreme court

refused to accept Fehr’s appeal), this court must review that

claim de novo.

II. Petitioner’s Ineffective Assistance Claim.

A. The “Strickland” Standard.

To prevail on an ineffective assistance of counsel claim, a

petitioner must satisfy both elements of a two-part test. First,

he must “show, by a preponderance of the evidence, that [his]

trial counsel’s conduct fell below the standard of reasonably

effective assistance.” Gonzalez-Soberal v . United States,

(1st Cir. 2001) (citing Strickland v . Washington,

6 8 , 687 (1984)). Next, a petitioner must demonstrate

that counsel’s errors actually prejudiced the defense. Id. See

also Cofske v . United States,

(1st Cir. 2002).

6 With regard to the first prong of the Strickland test, the

court employs a highly deferential standard of review in

assessing the quality of trial counsel’s representation, and

“must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that

i s , the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

trial strategy.” Strickland, 466 U.S. at 689 (citation and

internal quotation marks omitted). In other words, to satisfy

his or her burden, a petitioner must demonstrate that counsel

made errors that were “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. at 687.

To satisfy the second prong of the Strickland test, a

petitioner must show “actual prejudice.” That is to say, a

petitioner must demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

A “reasonable probability” is one “sufficient to undermine

confidence in the outcome.” Id.

7 Because the failure to make either showing defeats a claim

of ineffective assistance, the quality of counsel’s performance

need not be examined if the petitioner fails to demonstrate any

prejudice. See Strickland, 466 U.S. at 697. Such is the case

here. Fehr’s defense was not prejudiced by trial counsel’s

failure to raise a “mistake of law” or “reliance” or “entrapment

by estoppel” defense, because such a defense would have been

meritless.

B. The Substance of Petitioner’s Claims.

As part of his claim that trial counsel’s performance was

constitutionally deficient in that counsel neglected to raise a

“mistake of law” defense, Fehr appears to advance two arguments.

First, he claims to have detrimentally relied on the response

from the NICS system authorizing the firearms dealer to “proceed”

with the sale. And, according to Fehr, his (allegedly)

reasonable reliance on that response gave rise to a viable

defense to the charge of felon in possession. In support of that

claim, Fehr points to New Hampshire’s criminal code, which

provides, in pertinent part, that:

8 A person is not relieved of criminal liability because he acts under a mistaken belief that his conduct does not, as a matter of law, constitute an offense unless his belief is founded upon a statement of the law contained in a statute or other enactment, or an administrative order or grant of permission, or a judicial decision of a state or federal court, or a written interpretation of the law relating to the offense officially made by a public servant, agency or body legally empowered with authority to administer, enforce or interpret such law. The defendant must prove a defense arising under this subsection by a preponderance of evidence.

RSA 626:3 II (emphasis supplied). As the New Hampshire Supreme

Court has observed, under RSA 626:3, “[m]istake as to law is a

defense only when the mistaken belief is founded in such reliable

sources as legal enactments, administrative orders, judicial

decisions or official written interpretations of the law.” State

v . Stratton,

5 1 , 458 (1989).

Plainly, then, the “proceed” statement that was received

from the NICS computer system in response to the firearms

dealer’s inquiry into Fehr’s background does not amount to the

type of reliable interpretation of the law that the New Hampshire

statute describes. In other words, the “proceed” response was

not (nor could it reasonably be viewed as) an authoritative

interpretation of New Hampshire’s laws concerning the possession

9 of firearms by convicted felons. Nor did it amount to a legal

opinion that, notwithstanding his prior felony conviction, Fehr

was free to purchase a firearm. Nor did it constitute an

authorization for Fehr to purchase a firearm, made by an “agency

or body legally empowered with authority to administer, enforce,

or interpret such law.” RSA 626:3 I I . Instead, the “proceed”

response merely indicated that Fehr’s felony conviction was not

included in the NICS database.

Fehr i s , of course, correct in asserting that there is some

legal significance to the fact that the firearms dealer queried

the NICS system and obtained a “proceed” statement. That event

does not, however, hold the legal significance Fehr envisions.

See Petitioner’s memorandum at 5 (asserting that “the FBI

‘proceed’ instruction confirmed to the petitioner that he was not

a felon, and granted him permission to purchase, and hence

possess[,] the rifle”). On that point, Fehr is wrong. Rather

than an authorization, issued by an agency empowered to give such

authorization, for Fehr to purchase a firearm, the “proceed”

response simply meant that the dealer could sell the weapon to

Fehr without violating federal law, since the dealer was not

10 aware of (or on notice of) Fehr’s felony conviction and had

complied with the inquiry requirements of

(t)(1).

Next, Fehr suggests that he reasonably believed that his

prior state felony conviction had been “expunged,” pursuant to

Mass. Gen. Laws ch. 1 4 0 , § 129B, thereby justifying (or at least

explaining) his “no” response to the question on the ATF Form

4473, asking whether he had ever been convicted of a felony.

And, says Fehr, since he reasonably believed that his prior

felony conviction had been expunged, he also reasonably believed

that he was legally authorized to purchase and/or possess a

firearm.

Again, however, Fehr’s interpretation of the statute on

which he relies is incorrect; the Massachusetts statute could not

have formed the basis of a reasonable belief that Fehr’s felony

conviction had, by operation of law, been expunged. The statute

simply provides that, under certain circumstances, individuals

previously convicted of felonies are eligible for a firearm

identification card and their right to possess certain specified

firearms, in the Commonwealth of Massachusetts, is deemed

11 restored. See Mass. Gen. Laws ch. 1 4 0 , § 129B(1)(I) (2000).

Specifically, the statute provides that if an individual has been

released from prison not fewer than five years “preceding such

application [for a firearm identification card], such applicant’s

right or ability to possess a non-large capacity rifle or shotgun

shall be deemed restored in the commonwealth with respect to such

conviction.” Id. (emphasis supplied).

Nowhere does the statute suggest that Fehr’s prior state

felony conviction was, as he argues, “expunged” by operation of

law and by virtue of the passage of time. Nor did its terms

purport to authorize Fehr’s purchase (or possession) of a firearm

outside the Commonwealth of Massachusetts (e.g., in New

Hampshire). Moreover, the statute expressly provides that,

“[n]othing in this section shall authorize the purchase . . . of

any weapon [or] ammunition . . . that is . . . prohibited by

state or federal law.” Plainly, then, the Massachusetts statute

did not purport to authorize Fehr, a convicted felon, to purchase

a firearm in New Hampshire - a state which, like the federal

government, specifically prohibits such purchases. Nor did it

12 authorize him to represent to the firearms dealer that he had

never been convicted of a felony when he had been so convicted.

Conclusion

Having reviewed, de novo, the claims raised in Fehr’s

petition for habeas corpus relief, the court concludes that they

are without legal merit. Fehr’s counsel was hardly required to

raise meritless defenses and, in any event, Fehr was not

prejudiced by trial counsel’s failure to raise a “mistake of law”

or “entrapment by estoppel” defense. In other words, there is no

“reasonable probability” that, but for counsel’s (allegedly)

unprofessional errors, the result of Fehr’s criminal trial would

have been different. See generally Strickland, supra.

Accordingly, for the foregoing reasons, as well as those set

forth in respondent’s thorough and persuasive legal memorandum,

respondent’s motion for summary judgment (document n o . 10) is

granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

13 SO ORDERED.

Steven J. McAuliffe United States District Judge

November 4 , 2003

cc: Nicholas P. Cort, Esq. Jonathan Fehr

14