UNITED STATES of America, Plaintiff-Appellee, v. John KELLY III, Defendant-Appellant

John Kelly appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. §§ 1291 , 2255. We review the denial of a § 2255 motion de novo, Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994), and we reverse and remand.

In his motion, Kelly claimed that his 1992 conviction for being a felon in possession of a firearm should be invalidated because his right to possess a firearm was restored in 1989, after he completed his Colorado prison sentence. See 18 U.S.C. § 921 (a)(20). Although the government conceded that the conviction should be vacated on that basis, the district court denied Kelly’s motion. United States v. Kelly, 879 F.Supp. 1044, 1046 (D.Nev.1994). The court determined that § 921(a)(20) did not apply to state convictions occurring before its enactment, citing United States v. Brebner, 951 F.2d 1017, 1020-23 (9th Cir.1991). Kelly, 879 F.Supp. at 1046 . We review de novo the district court’s interpretation of a statute. See United States v. Ripinsky, 20 F.3d 359, 361 (9th Cir.1994).

We held in Brebner that 18 U.S.C. § 921 (a)(20) could not “be retroactively applied to the offenses alleged in Brebner’s indictment…