ORDER RE SECTION 2255 PETITION

SHARON L. GLEASON, District Judge.

Currently before the Court is Defendant Jesse Y. Arnariak's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, filed on October 1, 2014 at Docket 110.1 The motion has been fully briefed. Oral argument was not requested and was not necessary to the Court's determination.

DISCUSSION

On October 18, 2013, Arnariak pled guilty to Count 5 of the Indictment, a violation of the Marine Mammal Protection Act, 16 U.S.C. § 1372(a)(4)(A), and Count 7, felon in possession of a firearm, 18 U.S.C. § 922(g)(1).2 The predicate offense for Count 7 was Arnariak's 1989 conviction following a no contest plea in Alaska state court to assault in the third degree.3 Arnariak seeks to vacate his conviction on Count 7 because he allegedly received ineffective assistance of counsel with respect to the admissibility of his prior state court conviction. Arnariak contends that his prior conviction would have been inadmissible hearsay under the Federal Rules of Evidence because it resulted from a no contest plea and, without evidence of the predicate felony, the Government would have been unable to obtain a conviction on the felon in possession of a firearm count at trial.4

A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment.5 To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate (1) that counsel's performance was deficient, i.e., "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment," and (2) "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial."6

Federal Rule of Evidence 801 provides that hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement."7 Hearsay is inadmissible unless a federal statute, the Federal Rules of Evidence, or rules of the Supreme Court provide otherwise.8 Federal Rule of Evidence 803(22) provides that "evidence of a final judgment of conviction" is not excluded by the hearsay rule if "the judgment was entered after a trial or guilty plea, but not a nolo contendere plea."

Arnariak asserts that his conviction on Count 7 should be vacated and his sentence adjusted accordingly because his trial counsel "did not advise [him] that [his] prior felony conviction in Alaska state court was not admissible in the federal proceedings because the state conviction was based on a plea of nolo contendere."9 Arnariak argues that "[b]ecause the state prior [conviction] was not admissible, [he] could not have been convicted of being a felon in possession of a firearm" and, had he been so advised, he would not have pled guilty to that crime.10 Arnariak bases his argument on the assertion that the "admissibility of judgments of prior convictions is governed by Rule 803(22) [and that rule] explicitly precludes the admission of judgments of conviction based on nolo contendere or no contest pleas when that judgment is admitted to prove an essential fact."11

The Government asserts that Arnariak's conviction would have been admissible under the felon in possession of a firearm statute pursuant to which Arnariak pled guilty, which provides that "[w]hat constitutes a conviction of such a crime (felon in possession) shall be determined in accordance with the law of the jurisdiction in which the proceedings were held."12 The Government asserts that Alaska case law demonstrates that a nolo contendere plea "holds the same operative effect as that of a guilty plea."13 The Government devotes several pages of its opposition to asserting that it need only to have proven that Arnariak had "a qualifying prior conviction, not that he committed the acts underlying that conviction," but the Government does not tie this argument back to Arnariak's specific hearsay objection.14 Finally, the Government asserts that Arnariak's plea is admissible under the public records exception to the hearsay rule.15

In his reply, Arnariak responds to the Government's arguments that under Alaska law a conviction based on a nolo contendere plea has the same effect as a conviction based on a guilty plea. He asserts that the cases relied upon by the Government all address collateral estoppel and are therefore inapplicable because they concern relitigation of an issue rather than admissibility of hearsay.16 Arnariak also asserts that even if the collateral estoppel doctrine in Alaska has evolved over time to apply to convictions based on no contest pleas, that evolution does not apply to Arnariak's 1989 no contest plea and resultant conviction.17 Finally, Arnariak argues that the public records hearsay exception in Rule 803(8) could not have been used to admit his nolo contendere plea, relying on the Ninth Circuit's holding in United States v. Nguyen, in which the court stated that "[a]ll judgments of conviction may be said to be public records, but the exemption under Rule 803(8) cannot be deemed to cover such judgments because it would make Rule 803(22) superfluous."18

The admissibility of a prior plea or conviction and the effect of Rule 803(22) has been discussed by only a surprisingly few number of courts. The Third Circuit has held that a nolo contendere conviction is admissible despite Rule 803(22) because it "was not introduced for the purposes of establishing any of the facts related to the underlying conviction."19 Other courts have followed the Third Circuit's holding and have distinguished between "a nolo contendere plea and [a] conviction that resulted from a nolo contendere plea. . . . [T]he Federal Rules's prohibition of the admission of nolo contendere pleas does not automatically apply to convictions based on nolo contendere pleas."20 In United States v. Anderson, the Ninth Circuit held, without discussing a hearsay objection, that a nolo contendere plea under California law was "equivalent to a guilty plea" for purposes of a conviction under Section 922(g)(1).21

Upon careful consideration, the Court concludes that a prior conviction based on a no contest plea that is sought to be introduced solely to prove that the defendant has a prior felony conviction is not hearsay as defined in Evidence Rule 801 because the conviction has an independent legal significance in a § 922(g) felon in possession prosecution. Nonhearsay statements include statements the making of which have a substantive legal significance. In West Coast Truck Lines, Inc. v. Arcata Community Recycling Center, Inc., the Ninth Circuit observed that "it is well established that statements which themselves affect the legal rights of the parties are not considered hearsay under the Federal Rules of Evidence."22 The Ninth Circuit emphasized that point in United States v. Bellucci, where it held that a certificate of insurance was nonhearsay, because "[l]ike a written contract that memorializes the fact of a legal agreement, the certificate memorializes the fact of the legal relationship of the insurer and insured. Such a written statement, which itself `affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights,' falls outside the definition of hearsay."23 United States v. Boulware applied this concept to a civil judgment, holding that "a prior judgment is not hearsay . . . to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties."24

A record of Arnariak's prior conviction is similarly a document that falls outside the definition of hearsay because it is a statement that affects the legal rights of the parties when the Government seeks to introduce it solely to show the fact of a prior conviction. Accordingly, the Court finds that the performance of Arnariak's counsel in this matter was not deficient. Having determined as such, the Court will not consider whether Arnariak was prejudiced by his lawyer's performance.

CONCLUSION

Based on the foregoing, IT IS ORDERED that Defendant Jesse Y. Arnariak's motions at Dockets 93 and 110 are DENIED.