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The feds filed charges against Rocky Houston while his appeal of a felony conviction was still pending in state court.
His lawyer contends that was a big mistake and the federal charges should be thrown out.
“In this case, the government both figuratively and literally jumped the gun,” attorney Michael P. McGovern said in a motion that requests dismissal of the federal indictment.
Houston faces 14 counts of being a convicted felon in possession of a firearm. He faces up to 140 years in prison if convicted.
“The defendant was not a prohibited person at the time of the conduct alleged in the indictment,” McGovern said.
In 2010 Houston was found guilty of felony evading arrest in Roane County Criminal Court. That conviction was the basis for the 14-count federal indictment, which was filed on Jan. 15.
Houston has been appealing his state conviction since 2010.
His request for a new trial was denied, but the Tennessee Court of Criminal Appeals didn’t render its decision until Feb. 11.
The indictment accuses Houston of being in possession of firearms on 14 dates between Oct. 11, 2012, and Jan. 11 of this year.
McGovern contends Houston was not prohibited from carrying firearms in the state of Tennessee during that time period because his appeal was still pending.
“The term ‘conviction’ is not defined in the Tennessee criminal code,” McGovern said. “Tennessee case law, however, teaches that a criminal judgment is not final – and therefore not a ‘conviction’ for any purpose – until all appeals have been exhausted.”
Since the feds are using Houston’s state conviction as basis for the federal charges, McGovern said the courts must go by what constitutes a conviction under state law.
“Because the state court judgment which serves as the predicate offense for all the counts of the indictment was still pending on direct appeal, it was not a ‘conviction’ under Tennessee law,” the motion said. “Therefore, the defendant was not a prohibited person, i.e., a person ‘who has been convicted in any court of a felony.’”
McGovern’s motion could be moot because the motion deadline in Houston’s federal case has already expired.
McGovern is requesting that he be allowed to “late-file” the motion.