NEBEKER, Senior Judge:
Appellant entered an unconditional guilty plea to three charges: attempted
Appellant asks that we reverse and vacate his convictions and permit him to withdraw his guilty plea, or, in the alternative, that we remand for an evidentiary hearing on appellant's petition for writ of error coram nobis. We affirm the trial court's ruling and deny his request for a remand.
Appellant was a 16-year veteran of the Metropolitan Police Department ("MPD"). The Federal Mediation and Conciliation Service determined that he was wrongfully terminated from the MPD, and ordered his timely reinstatement. While appellant waited for the MPD to reinstate him, he began working as an automated teller machine ("ATM") technician for Bantek West ("Bantek"), an ATM company, located in Virginia. On September 11, 2006, around 1:00 a.m., appellant was driving to his wife's apartment in Southeast, Washington, D.C., and police officers pulled appellant over for failing to stop at a stop sign. The officers observed that appellant was wearing a fanny pack similar to a holder for concealed weapons. When asked about the pack, appellant told the officers that it was his "gun belt," that he was supposed to be reinstated as an MPD police officer, and that he was currently working for a private company. The officers removed appellant from his car and recovered his weapon, an operable Glock semi-automatic pistol, which was loaded with 16 rounds of ammunition. The officers arrested appellant, and he was subsequently charged with CPWL, UF, and UA.
On February 22, 2007, during appellant's plea hearing, appellant produced a license
On June 7, 2008, appellant, through new counsel, filed a petition and supplemental memorandum in support of the writ of error coram nobis, seeking the vacation of appellant's three convictions.
As a preliminary matter, this court notes that appellant has waived his current preemption and Second Amendment claims because he knowingly entered an unconditional guilty plea, thus, he waived his right to appeal his convictions.
Furthermore, the writ of error coram nobis is an extraordinary remedy that can be used to correct a legal or factual error. United States v. Denedo, ___ U.S. ___, 129 S.Ct. 2213, 2221, 173 L.Ed.2d 1235 (2009); Magnus v. United States, 11 A.3d 237, 246 (D.C.2011). It is available under the All Writs Act, 28 U.S.C. 1651(a) (2006), and the petitioner must show: (1) "the trial court [was] unaware of the facts giving rise to the petition; (2) the omitted information [is] such that it would have prevented the sentence or judgment; (3) petitioner [is] able to justify the failure to provide the information; (4) the error [is] extrinsic to the record; and (5) the error [is] of the `most fundamental character.'" United States v. Hamid, 531 A.2d 628, 634 (D.C.1987) (citation omitted).
Regarding the first, second and fourth entitlement elements, while the government concedes that there were some facts that were unknown to the trial court during the plea hearing that were extrinsic to the record, appellant could not prove that these facts would have prevented the judgment. Although appellant assumes, by way of argument, that the court would not have accepted his guilty plea had it been aware of the unknown facts, there is nothing to support this assumption. Appellant voluntarily and intelligently entered an unconditional guilty plea. Once apprised of the "omitted" information, the trial judge plainly stated that this information would have been insufficient to prevent the sentence or entry of judgment. Thus, error did not attach to the court accepting appellant's guilty plea. Moreover, regarding the third and fifth elements of entitlement to the writ, appellant cannot justify his failure to provide this information during his plea hearing or earlier, nor has he shown that the alleged error is "of the most fundamental character." Hamid, 531 A.2d at 634.
Next, appellant contends that his lawyer was ineffective in failing to argue to the court or advise appellant that his conviction under D.C. gun laws was preempted by the Armored Car Act because appellant was transporting his "federally authorized firearm to his work as an ATM guard and thereby acting `in service of his employer.'" Appellant argues that, per the Armored Car Act, an armored car employee is permitted to lawfully carry a state-licensed weapon in any state while that employee "is acting in the service of such company," 15 U.S.C. § 5902(a)(2) (2006), and that here, appellant was in service of Bantek because he was on his way to work when he was stopped and arrested. Appellant further argues that the Armored Car Act preempts the District's gun laws because it "supersede[s] any provision of State law . . . that is inconsistent with this [chapter]." 15 U.S.C. § 5903 (2006).
Even taken on its face, appellant's preemption argument fails. While the Armored Car Act does operate in the District of Columbia, and appellant was an "armored car crew member" who possessed a valid Virginia license to carry his weapon, the facts do not establish that he was carrying this weapon "while . . . acting in the service of" Bantek. See 15 U.S.C. § 5902(a)(2) (2006). The record shows, and appellant's brief concedes, that he was carrying his loaded weapon through the District on his way to his wife's house at 1 a.m. to "sleep for a few hours and to have breakfast with his daughter." Here, the charged offense occurred several hours before appellant was planning to leave for work. Therefore, appellant's convictions must stand.
However, even if this court were to address the merits of appellant's Second Amendment claim, it would fail. Appellant argues that the trial court erred in holding that the Second Amendment only guarantees the right to self-defense in the home, and that it erred by interpreting that Heller's holding was limited to "the possession of firearms in one's home for the purpose of immediate self-defense." Appellant asserts that Heller holds that Second Amendment rights "extend beyond the immediate defense of hearth and home," and that one may carry weapons "in case of confrontation." Id. at 592, 128 S.Ct. 2783.
While this court recognizes that Heller found the District's firearm regulatory scheme to be unconstitutional—to the extent that there was an absolute ban on an entire class of firearms—we also recognize that "Heller did not, however, invalidate any of the District's individual gun control laws. . . ." Brown v. United States, 979 A.2d 630, 638 (D.C.2009) (emphasis added). In Howerton v. United States, 964 A.2d 1282, 1287 (D.C.2009), this court further recognized that "[t]he focus of the Supreme Court's analysis in Heller was the right `to use arms in defense of hearth and home.'" Id. (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783).
Here, appellant was not using his weapon in defense of his hearth and home. He was traveling on a public street in the District with a loaded firearm, which was not licensed by the District, on his way to his wife's apartment for a protracted stay before leaving for work.
Accordingly, we affirm appellant's convictions.
If an armored car crew member employed by an armored car company—
15 U.S.C. § 5902(a)(2) (2006) (emphasis added).
Moreover, 15 U.S.C. § 5903 (2006) provides: "This [chapter] shall supersede any provision of State law (or the law of any political subdivision of a State) that is inconsistent with this [chapter]."
For the purposes of this statute, the District of Columbia is referred to as a state. 15 U.S.C. § 5904(3) (2006). ("The term `State' means any State of the United States or the District of Columbia.").
For this same reason, there is no merit to appellant's reliance on this court's language in Arrington v. United States, 585 A.2d 1342, 1344 n. 2 (D.C.1991) ("a guilty plea cannot generally be collaterally attacked, [but] the Supreme Court recognized an exception `where on the face of the record the court had no power to enter the convictions or impose the sentence.'") (citation omitted); see Sims v. United States, 963 A.2d 147, 149 (D.C. 2008).