John Ballester v. United States ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 9, 2010
No. 09-12117 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 09-60432-CV-WPD
89-00775 CR-WPD
JOHN BALLESTER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 9, 2010)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
On March 20, 1992, petitioner having pled guilty to the crime of possession
by a convicted felon of a firearm in an affecting interstate commerce, in violation
of 18 U.S.C. § 922(g)(1), the district court sentenced him to prison for a term of 63
months. On March 31, 1992, he moved the district court to vacate his conviction
and sentence on various grounds. His motion was denied.1
On March 18, 2009, petitioner, in another attempt to have his conviction and
sentence set aside, petitioned the district court for a writ of error coram nobis. He
claimed that his conviction was invalid because the firearm at issue had not
traveled in interstate commerce; hence, he was “actually innocent” of the § 922(g)
(1) offense. The district court denied relief, refusing to exercise its discretion to
grant the writ because coram nobis is a remedy of last resort—available in
compelling circumstances where necessary to achieve justice. Petitioner now
appeals the ruling, proceeding pro se as he did in the district court.
Petitioner argues that the firearm at issue was made in Florida and never left
the state. In that the interstate nexus is jurisdictional, he continues, his conviction
is invalid.
Contrary to petitioner’s view, the interstate nexus is not jurisdictional. The
Supreme Court made this plain in United States v. Lopez.
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Petitioner’s subsequent attempts to obtain relief from his conviction and sentence,
which are not pertinent here, were unsuccessful.
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[Section] 922(q) contains no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession in
question affects interstate commerce. For example, in United States v.
Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court
interpreted former 18 U.S.C. § 1202(a), which made it a crime for a
felon to “receiv[e], posses[s], or transpor[t] in commerce or affecting
commerce ... any firearm.” 404 U.S., at 337, 92 S.Ct., at 517. The
Court interpreted the possession component of § 1202(a) to require an
additional nexus to interstate commerce both because the statute was
ambiguous and because “unless Congress conveys its purpose clearly,
it will not be deemed to have significantly changed the federal-state
balance.” Id., at 349, 92 S.Ct., at 523. The Bass Court set aside the
conviction because, although the Government had demonstrated that
Bass had possessed a firearm, it had failed “to show the requisite
nexus with interstate commerce.” Id., at 347, 92 S.Ct., at 522. The
Court thus interpreted the statute to reserve the constitutional question
whether Congress could regulate, without more, the “mere
possession” of firearms. See id., at 339, n. 4, 92 S.Ct., at 518, n. 4; see
also United States v. Five Gambling Devices, 346 U.S. 441, 448, 74
S.Ct. 190, 194, 98 L.Ed. 179 (1953) (plurality opinion) (“The
principle is old and deeply imbedded in our jurisprudence that this
Court will construe a statute in a manner that requires decision of
serious constitutional questions only if the statutory language leaves
no reasonable alternative”). Unlike the statute in Bass, § 922(q) has no
express jurisdictional element which might limit its reach to a discrete
set of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.
514 U.S. 549, 561-62, 115 S.Ct. 1624, 1631, 131 L.Ed. 2d 626 (1995).
Because the interstate nexus is not jurisdictional, petitioner’s argument is
reduced to the proposition that he should be given coram nobis relief because the
Government failed to prove at his plea hearing that the firearm actually traveled in
interstate commerce. Petitioner’s problem is that, in pleading guilty, he waived
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the right to challenge the Government’s proof. The district court’s refusal to grant
the writ is, accordingly,
AFFIRMED.
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