felony expungement

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TopDogg
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felony expungement

Post by TopDogg »

Hello everybody I'm new to the forum and therefore i dont know much. My question is if i was convicted of a felony 12 years ago when i was young and dumb. would i be able to get it expunged and get my chl. It was not a violent crime either and was a fourth degree felony which was the lowest degree at the time. Thx for your time and any responses! :oops:
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color of law
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Post by color of law »

There are all kinds of felonies. Some states restore your constitutional rights. Some don't. Some restore constitutional rights except gun rights. Need more info. Give us the facts and you will get responses. You may even get criticized, that's a given. So just be prepared.
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Post by mreising »

Doesn't the felony conviction put you under disability for possessing fiearms? That may be the first issue to address after expungement.
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jabeatty
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Post by jabeatty »

mreising wrote:Doesn't the felony conviction put you under disability for possessing fiearms? That may be the first issue to address after expungement.
Yep - and there's no federal relief currently available (Congress purposely defunds it each year at budget time).
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color of law
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Post by color of law »

If I recall, a State pardon will not relieve the State felony from feds accepting it. I know of a guy where a state felony was set aside. Was convicted of federal gun crime even though state felony was set aside. Matter of fact the state reinstated the felony at the insistence of the feds. This was a machine gun case.
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Post by Zen »

A felony conviction shouldn't always disqualify someone from owning firearms or even obtaining a CHL. There should be some method of appeal.

I'm not a big fan of "Zero Tolerance".
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jabeatty
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Post by jabeatty »

Zen wrote:A felony conviction shouldn't always disqualify someone from owning firearms or even obtaining a CHL. There should be some method of appeal.
The law allows for it, but with the complicity of the Supreme Court, Congress prohibits the Bat-Boys from doing their job in this very specific area. The only relief available is a Presidential pardon.

I suppose there's a greater purpose here, though - there's no way Bubba could have operated the kind of pardons-for-donations scams he did without it. (He pardoned more than one felon for this express purpose.)
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TopDogg
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Post by TopDogg »

my felony was burgulary,it was my so called girlfriends house and we had a argument so i left and didnt come back for a week.when i did come back i walked in cause she never locks the doors and me and 2 of my friends were sitting there watching a basketball game.keep in mind i didnt break in or take anything.my clothes and tv and microwave and other items were there. she came home with her new boyfriend and he was {inappropriate language}. i didnt even know she had a new boyfriend,but anyways me and my friends left without incident. then a year later i got pulled over for a traffic violation and they ran my name and said i had a felony warrant.i had know idea what was going on until they said it was in auglaize county.then i knew the only place i had ever been in that county was st.marys. i got a public pretender cause they made it seem like it was going to be nothing. next thing i know they sent me to prison for 3 months then took me out and put me on probation. i completed that and thats the story. i had to go to court in wapakoneta and i think he was biased towards me cause i was black. dont get me wrong i dont use the race card,but it was ridiculous. thx for your time :cry:
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cromanos
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Post by cromanos »

Crappy situation to be in - best of luck.
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Post by Tweed Ring »

Go to a good lawyer, and explain the situation. Be preapred to pay the lawyer green money. You may not be happy with what he/she tells you.
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Post by charben »

TopDogg wrote: i think he was biased towards me cause i was black.
You're not black anymore? :lol:

Sorry, just trying to lighten a tough story...
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Post by SeanC »

You can petition to have your criminal record sealed (we don't have "expongement" in Ohio). A sealed record means that you can honestly answer that you "have no criminal record." However, it will still show up on criminal histories run by law enforcement and certain state agencies.

The CHL application disqualifies you if you have ever been convicted of or pleaded guilty or no contest to a felony offense. It doesn't ask whether "your criminal record shows a felony conviction." There's no way around it. Because of your conviction, you can't get a CHL in Ohio unless you receive a pardon from the governor.

If you are still disqualified from possessing a firearm because of the felony conviction, you can petition the court to reinstate your firearms privileges. In your case, it might be possible to make quite a sympathetic argument to that effect. If your rights are restored, you will be able to open carry. You will also be able to make use of the affirmative defenses for deadly weapons other than handguns as the situation allows. That's probably your best bet.
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jabeatty
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Post by jabeatty »

SeanC wrote:If you are still disqualified from possessing a firearm because of the felony conviction, you can petition the court to reinstate your firearms privileges. In your case, it might be possible to make quite a sympathetic argument to that effect. If your rights are restored, you will be able to open carry. You will also be able to make use of the affirmative defenses for deadly weapons other than handguns as the situation allows. That's probably your best bet.
SeanC, he may be able to do this at the state level, but he doesn't have this option as far as the feds are concerned. (Which begs the question: why bother?)
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SeanC
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Post by SeanC »

There are a couple courses of action that would interest me if I was in TopDogg's position. First, 18 U.S.C. 925 gives the Attorney General the authority to hear petitions to have federal firearms disqualifications removed. The Attorney General has delegated that authority to the BATFE. There is a statutory right of appeal from denials of those applications to the District Court. I would apply for a restoration to the BATFE, wait a reasonable amount of time, then file an appeal and tell the court that I had been denied by virtue of the BATFE's failure to timely act on my petition.
(c) A person who is prohibited from possessing . . . firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.
Also, I would look at United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990). In that case, a gentleman was disqualified (under state and federal law) from carrying firearms by virtue of a drug trafficking conviction. He was released from prison and received a "Restoration to Civil Rights" certificate from the parole board. It purported to restore "the rights and privileges forefited by [the] conviction; namely the right to serve on juries and hold office of honor, trust, or profit." Five years later, the defendant was arrested and found to be in possession of a firearm. He was charged under the federal disability. The District Court interpreted the statute so as to preclude a conviction, since the defendant's rights had been restored under state law. I'll just quote the rest...
The pertinent language reads as follows:
The term “crime punishable by imprisonment for a term exceeding one year” does not include-

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or


(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.


What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.

The mandate of Congress expressed in the second sentence of the definition is plain. We must look to the law of the state in which a defendant was tried in order to determine whether the defendant was convicted of a “crime punishable by imprisonment for a term exceeding one year.” Cassidy does not contest the fact that he was convicted in the State of Ohio of a crime punishable by imprisonment for a term exceeding one year under Ohio law, nor does he contend that he falls within one of the exclusions listed in subparagraphs (A) and (B). Cassidy argues that the Restoration Certificate effected a restoration of his civil rights as contemplated by the third sentence of section 921(a)(20).


The effect of the third sentence of the definition is to exempt a person from federal firearms disabilities, notwithstanding a felony conviction, if such person has “had civil rights restored ... unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Id. It was the unmistakable intent of Congress to eliminate the disabling effect of a felony conviction when the state of conviction has made certain determinations, embodied in state law, regarding a released felon's civil rights and firearms privileges.


Considering the definition as a whole, it is clear that Congress intended that courts refer to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a criminal conviction. If state law has restored civil rights to a felon, without expressly limiting the felon's firearms privileges, that felon is not subject to federal firearms disabilities. This is the clear and unambiguous intent of Congress as expressed in section 921(a)(20).
Check it out here.

On the authority of Cassidy, it seems that one who has had his or her civil rights restored under state law (at least in the Sixth Circuit Court of Appeals - which includes Ohio, Tennessee, Kentucky and Michigan) does not fall within the definition of "persons who have been convicted of a crime punishable more than one year in prison" for purposes of federal disqualification.
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jabeatty
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Post by jabeatty »

SeanC wrote:There are a couple courses of action that would interest me if I was in TopDogg's position. First, 18 U.S.C. 925 gives the Attorney General the authority to hear petitions to have federal firearms disqualifications removed. The Attorney General has delegated that authority to the BATFE. There is a statutory right of appeal from denials of those applications to the District Court. I would apply for a restoration to the BATFE, wait a reasonable amount of time, then file an appeal and tell the court that I had been denied by virtue of the BATFE's failure to timely act on my petition.
All actions under this specific section of 925 are specifically defunded in the budget, and have been for several years. (Search the omnibus budget act for the current year for 925 and you'll find it).

ETA: The defunding language is again present in the 2008 appropriations act (HR 2764):
Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)
You can't get a denial, and the Supreme Court (I forget the specific case, and I'm under the weather at the moment) has ruled that because there was no denial, there can be no appeal.
SeanC wrote:Also, I would look at United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990).
I will. Can you do a quick check to see if Cassidy was appealed on up to the Supreme Court?

ETA: US v. Bean is much more current; Justice Thomas wrote the unanimous (and disgusting) decision.
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