United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
ORDER FOR ANSWER
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
criminal case is before the Court on Defendant Kenneth
Clegg's Motion to Vacate under 28 U.S.C. § 2255 (ECF
No. 71). The Motion is before the Court for initial review
pursuant to Rule 4(b) of the Rules Governing § 2255
Proceedings which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States to file
an answer, motion, or other response within a fixed time, or
take other action the judge may order.
2255 motions are automatically assigned to the District Judge
who handled the trial case. All § 2255 motions at the
Dayton seat of court are referred to the undersigned pursuant
to General Order Day 13-01.
was indicted August 12, 2014, of being a convicted felon in
possession of a Smith & Wesson model SW9VE firearm (Count
One), of a DPMS model A-15 rifle (Count Two), and of making a
false statement and representation on an ATF Form 4473 that
he had not been previously convicted of a crime punishable by
more than one year's imprisonment (Count
Three)(Indictment, ECF No. 21). On March 2, 2015, Clegg
stipulated that as of April 15 and April 17, 2014, he had
been convicted of a felony under Ohio law (ECF No. 36).
Thereafter on March 30, 2015, Clegg through counsel filed a
Motion to Dismiss on the ground that he had theretofore been
“properly restored to his civil rights under the law. .
. .” (ECF No. 39). Finding the Sixth Circuit's
decision in United States v. Cassidy, 889 F.2d 543
(6th Cir. 1990), to be controlling, Judge Rose
denied the Motion to Dismiss (ECF No. 45). On July 13, 2015,
Clegg pleaded guilty to Count Two (Minutes, ECF No. 51; Plea
Agreement, ECF No. 54). On October 21, 2015, Judge Rose
sentenced Clegg to sixty months' imprisonment (Judgment,
ECF No. 61).
appealed and the Sixth Circuit affirmed on the basis of
Cassidy. United States v. Clegg, 654
FedApp'x 686, 2016 WL 3595718, 2016 U.S. App. LEXIS 12162
(6th Cir. June 29, 2016), cert. denied sub nom. Clegg v.
United States, 137 S.Ct. 629 (2017).
filed his Motion to Vacate here on August 5, 2019, pleading
the following grounds for relief:
Ground One: My core civil rights were
restored to me upon release from post release control.
Supporting Facts: After serving my sentence
and completing post release control, l received a certificate
reinstating my core civil rights, without any type of
privileges forbidden. At this point I believed that I was
freed from any firearms disability. a belief that was
reinforced not once but three times. First by a local police
officer on a traffic stop who ran my information and allowed
me to drive away without incident and two firearms in the bed
of my truck. A second time months later, the same officer
stopped me again without incident, and again with a firearm
in my truck. A third report was written when l happened to
walk by a county sheriff, we talked cordially. He recorded my
information and let me walk away with a pistol holstered to
my hip. Any one of these innocent interactions would bolster
any man's belief in his right to do so.
Ground Two: In a prosecution under §
922(9) and § 924(a)(2), the government must prove that
the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possesing [sic] firearms.
Supporting Facts: From the start of this
case I have maintained that my rights had been restored.
Nothing was said or done by anyone involved was intended to
correct this thought. Several reported police interactions
affirmed this belief. On June 21, 2019 The Supreme Court of
the United States, in Case No. 17-9560 held that a defendant
must be aware he is in the relevant category of barred
persons. My actions in evidence of reportedly civil incidents
recorded by local law enforcement, leading up to this case
are more than apparent that I lacked any wrongful or
nefarious intent. As Justice Breyer states in his opinion of
the court, "his (the defendant) behavior may instead be
an innocent mistake to which criminal sanctions normally do
ECF No. 71, PageID 233-34.