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State court cannot remove federal firearm disability

Where appellant was convicted of a federal felony, and her right to possess firearms was restricted by federal and state law, the city of Norfolk Circuit Court erred by ruling that it lacked jurisdiction to restore appellant’s firearms rights. The court, however, correctly concluded that federal law prevents a state court from removing a federal firearms disability.


Appellant Focke was convicted of felony bankruptcy fraud in a federal district court sitting in the city of Norfolk. As a result, her firearm rights were restricted by both federal and state law. She sought to have her gun rights restored in North Carolina, where she resides.

Focke could apply to the U.S. district attorney to have her rights restored but Congress, for many years, has refused to appropriate funds for that purpose.

North Carolina law restricts Focke’s gun rights but these rights can be restored. North Carolina law provides that “[t]he petitioner must show that ‘(i) … at least 20 years has passed since the unconditional discharge … by the agency having jurisdiction where the conviction occurred, and (ii) the person’s …  right to possess a firearm [has] been restored, pursuant to the law of the jurisdiction where the conviction occurred.’”

Focke filed a restoration petition in the city of Norfolk circuit court. A Virginia statute, Code § 18.2-308.2, “allows a petition to restore firearm rights if the person’s ‘civil rights’ have first been restored by the Governor. … Governor Ralph S. Northam restored Focke’s civil rights in Virginia in September 2021.

“Code § 18.2-308.2 used to prevent nonresidents like Focke from applying to have their Virginia gun rights restored. The statute said that the petitioner had to file in “the circuit court of the jurisdiction in which he resides.” [Commonwealth v. Leone, 286 Va. 147 (2013)] … (emphasis added) …

“Applying that language, Leone held that a person who did not reside in Virginia Beach could not file a rights-restoration petition in the Circuit Court for the City of Virginia Beach. …

“But the General Assembly amended the statute in 2015 to extend the rights-restoration procedure to nonresidents as well.”

The jurisdictional issue “turns on the language of that 2015 amendment. The amendment provided that a person seeking to restore his gun rights ‘may petition the circuit court of the jurisdiction in which he resides or, if the person is not a resident of the Commonwealth, the circuit court of any county or city where such person was last convicted of a felony.’”

After a hearing on Focke’s restoration petition, the “trial court agreed with Focke that she had shown ‘good cause’ to have her firearm rights restored, but it agreed with the Commonwealth that the court lacked subject-matter jurisdiction to consider the petition.

“The court rejected Focke’s argument that she could file her petition in ‘the Norfolk Circuit Court’ simply because that court was located ‘in the same city as the Norfolk federal court.’” Focke noted a timely appeal.


“The jurisdictional question is easily resolved by the last-antecedent rule: ‘[a]bsent a contrary intent, a qualifying word or phrase should be read as modifying only the last noun or phrase that immediately precedes it, i.e., the last antecedent.’ …

“A nonresident’s petition to restore gun rights must be filed in ‘the circuit court of any county or city where such person was last convicted of a felony.’ Code § 18.2-308.2(C). The Commonwealth’s Attorney and the trial court both misconstrued that language to conclude that the petition must be filed in ‘the circuit court’ where the person was last convicted of a felony.

“That interpretation ignores the last antecedent in the clause: the circuit court ‘of any county or city’ where the person was last convicted. …

“The reference in Code § 18.2-308.2(C) to ‘where such person was last convicted of a felony’ modifies the ‘county or city’ where the person was convicted, not ‘the circuit court’ where the conviction was rendered.

“Because Focke was convicted by the federal district court sitting in Norfolk, the Circuit Court for the City of Norfolk is the circuit court of the city where she was last convicted. The circuit court here thus had subject-matter jurisdiction to consider her rights-restoration petition.”

No relief

“Since the trial court had jurisdiction to consider Focke’s petition, could it grant the relief she requested? As a matter of law, the answer is no. Federal law is clear that State courts cannot remove the federal disability to possess a firearm that results from a federal felony conviction. …

“In light of Focke’s federal firearms disability, then, the plain language of Virginia’s statute did not authorize the circuit court to grant the only relief available under the statute: ‘“a restoration order that unconditionally authorizes possessing, transporting, or carrying a firearm, ammunition for a firearm, or a stun weapon.’ Code § 18.2-308.2(C) (emphasis added). …

“In short, the trial court was right to reject Focke’s petition, but not because the court lacked subject-matter jurisdiction.

“Under the right-for-the-wrong-reason doctrine, we conclude that Focke could not be granted an order permitting her to unconditionally possess firearms in Virginia given the firearms disability resulting from her federal felony conviction.

“Thus, rather than dismissing Focke’s petition for lack of jurisdiction, the trial court should have denied it on the merits because the court could not grant relief under the statute.”


“We reverse the order dismissing the petition for lack of subject-matter jurisdiction. We remand this case with instructions to deny the petition because Focke is not entitled under Code § 18.2-308.2(C) to have her firearm rights ‘unconditionally’ restored.”

Reversed and remanded.

Focke v. Commonwealth. Record No. 0573-22-1, April 25, 2023. CAV (published opinion) (Raphael). From the Circuit Court of the City of Norfolk (Hall). Barry Randolph Koch for appellant. Melinda F. Seemar, Jason S. Miyares for appellee. VLW 023-7-148, 8 pp.

VLW 023-7-148

Virginia Lawyers Weekly