U.S. v. Clark, 020800

Decision Date08 February 2000
Docket NumberNo. 98-20550,98-20550
Citation203 F.3d 358
Parties(5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES CLIVE CLARK, JR., Defendant-Appellant
CourtU.S. Court of Appeals — Fifth Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant James Clive Clark, Jr. (Clark) pleaded guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). As a result of his three prior state drug convictions, Clark was sentenced in December, 1992, to a mandatory minimum term of fifteen years' imprisonment under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(1). Clark appealed and in January, 1994, this Court affirmed his conviction and sentence. On April 23, 1997, Clark filed the instant motion for post-conviction relief under 28 U.S.C. 2255, alleging that his sentence was enhanced under the ACCA on the basis of state convictions that were constitutionally invalid because the evidence of his guilt was insufficient. The district court dismissed Clark's motion without prejudice on the ground that Custis v. United States, 114 S.Ct. 1732 (1994), precluded Clark from thus challenging the prior state convictions that were used to enhance his current sentence. Clark moved for reconsideration of this order or alternatively, for a certificate of appealability (COA). The district court denied both motions. Clark then filed an application for a COA in this Court, alleging that the district court misinterpreted Custis. This Court granted a COA on that issue. We conclude that the district court erred in finding a jurisdictional impediment to Clark's challenge to the prior state convictions used to enhance the federal sentence he is currently serving under the ACCA. Therefore, we vacate the district court's dismissal of Clark's section 2255 motion and remand for further proceedings consistent herewith.

Facts and Proceedings Below

On January 13, 1983, a Texas state jury convicted Clark in Tarrant County District Court of three separate offenses occurring in January and February, 1982, for delivery of a controlled substance, lysergic acid diethylamide (LSD). For each offense, the court sentenced Clark to five years in the Texas Department of Corrections (TDC), suspended for ten years probation, and a $15,000 fine, with the sentences running concurrently. Clark was represented by counsel in the state court proceedings. On August 16, 1986, Clark's probation was revoked for failure to report to his probation officer. At the probation revocation hearing, at which he was represented by counsel, Clark was ordered to serve five years in the TDC. On February 18, 1987, he was paroled to Harris County, Texas, with a scheduled parole expiration date of February 6, 1991. Clark did not appeal the state convictions or his probation revocation.

On August 9, 1990, while still on parole, Clark was arrested by undercover agents of the Drug Enforcement Agency (DEA) for trafficking in marihuana and carrying a semiautomatic Baretta .25 millimeter caliber pistol. On July 8, 1991, a federal grand jury in the Southern District of Texas indicted Clark under 18 U.S.C. 922(g)1 for one count of knowingly possessing on or about August 9, 1990, a firearm, which had been shipped in interstate commerce, after he had been previously convicted on January 13, 1983 of three felonies each punishable for a term exceeding one year. Clark pleaded guilty to the indictment on December 10, 1991, but the district court allowed him to withdraw his guilty plea at sentencing because Clark's potential sentence under the ACCA was "particularly harsh." After appointing new counsel to represent Clark, the district court on July 16, 1992, conducted a subsequent sentencing hearing, at which Clark again pleaded guilty to the indictment.2

On December 17, 1992, the district court sentenced Clark under the ACCA.3 The applicable sentencing range under the Sentencing Guidelines for Clark's offense would normally have been seventy-seven to ninety-six months of incarceration. The ACCA, however, imposes a mandatory minimum sentence of fifteen years and a maximum of life in prison without parole if a defendant has three previous convictions for a "violent felony" or "serious drug offense." 18 U.S.C. 924(e)(1). Clark's three prior state drug convictions rendered him eligible for punishment under the ACCA. U.S.S.G. 5G1.1(b) provides that "[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence." Accordingly, the district court sentenced Clark to the minimum mandatory term of fifteen years as required by the ACCA.4

Clark filed a timely notice of appeal to this Court. Clark's counsel submitted a brief withdrawing from the case pursuant to Anders v. California, 87 S.Ct. 1396 (1967), and in January, 1994, we dismissed the appeal on that basis in an unpublished order. See United States v. Clark, No. 93-2033 (5th Cir. Jan. 10, 1994). On September 6, 1996, Clark (represented by his third counsel) apparently filed a state habeas corpus petition for post-conviction relief under TEX. CODE CRIM. P. 11.07, in which he sought to show that none of his three 1983 state convictions was supported by constitutionally sufficient evidence; the state trial court refused to hold an evidentiary hearing and recommended that relief be denied; the Texas Court of Criminal Appeals refused to docket the case. On April 23, 1997, Clark filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255.5 He asserted he was serving his 1992 federal sentence at the Federal Correctional Institution in Memphis, Tennessee. He alleged that (1) the evidence was constitutionally insufficient to support the 1983 state convictions that were then used to enhance his federal sentence under the ACCA; and (2) 18 U.S.C. 922(g) violated the Commerce Clause. He further alleged his unsuccessful 1996 state habeas attack on his 1983 state convictions and that as a result "[m]ovant has no further avenue of attack available in state court." The state habeas records are not in the record before us and were not before the district court.

In a published memorandum opinion, the district court dismissed Clark's motion without prejudice. See United States v. Clark, 996 F.Supp. 691 (S.D. Tex. 1998). The district court held that Clark's motion was timely filed under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), but rejected his Commerce Clause challenge to section 922(g) on the ground that this Court had repeatedly held that statute to be valid. Id. at 692. The district court further held that the Supreme Court's opinion in Custis v. United States, 114 S.Ct. 1732 (1994), precluded the section 2255 challenge to Clark's 1983 state convictions that were used to enhance his current federal sentence under the ACCA. See Clark, 996 F.Supp. at 692-94. The district court concluded by stating:

"Because the constitutionality of defendant's state convictions may, if appropriate, be challenged through a 2254 petition filed in the Northern District of Texas, his 2255 motion will be dismissed without prejudice to defendant's right to refile in this court should any of his state convictions be vacated or otherwise expunged. Id. at 694 (footnote omitted).

The court observed in this connection that "Defendant is currently in federal custody in Tennessee, and the convicting state court is in the Northern District of Texas." Id. at 694 n.6. The court did not, however, find that Clark was (or had been at any time after his federal indictment) in state custody pursuant to or as a result of the 1983 state convictions, nor did the court recite any facts reflecting such custody (nor does our review of the record disclose any). While the district court did not expressly find whether Clark had exhausted his state remedies respecting his 1983 state convictions, the court appears to have assumed that Clark probably had done so. See id. at 694 n.7 ("Although defendant has not submitted the state habeas records, he has apparently tried and failed to set aside his state convictions through a post-conviction state habeas action").

Clark moved for reconsideration of the order, or alternatively, for a COA, asserting, among other things, that 28 U.S.C. 2254 was not available to him to challenge his 1983 state convictions because he was not in state custody under or as a result of those convictions. The district court denied both motions. On August 7, 1998, Clark filed an application for a COA with this Court. He alleged that the district court misinterpreted Custis and requested a COA on the question whether section 2255 is a proper vehicle for bringing collateral challenges to prior state convictions used to enhance a current federal sentence. On November 19, 1998, this Court granted a COA limited to that question. We now vacate and remand.

Discussion

We disagree with the district court's conclusion that Custis has rendered unavailable a section 2255 challenge to constitutionally infirm prior state convictions that have been used to enhance a federal sentence being currently served where the defendant has exhausted his state remedies and is not in state custody pursuant to or as a result of the state convictions for purposes of section 2254. Custis announced only a prohibition on these types of challenges in the context of federal sentencing hearings. This Court has consistently sanctioned the use of section 2255 motions to attack a federal sentence being currently served on the ground that it was enhanced on the basis of a constitutionally invalid prior conviction. We do not read Custis to disturb this principle. Moreover, the ACCA is a sentencing enhancement sta...

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