Farrow v. United States
| Decision Date | 15 March 1974 |
| Docket Number | Civ. No. 73-358. |
| Citation | 373 F. Supp. 113 |
| Court | U.S. District Court — Southern District of California |
| Parties | Laurence Leroy FARROW, Petitioner, v. UNITED STATES of America, Respondent. |
COPYRIGHT MATERIAL OMITTED
Laurence Leroy Farrow, pro se.
James W. Meyers, Robert P. Risso, Asst. U. S. Attys., San Diego, Cal., for respondent.
On August 30, 1973, petitioner filed his initial motion, pursuant to Title 28 U.S.C. § 2255, attacking the validity of the sentence imposed after his plea of guilty on December 16, 1971 for violation of 18 U.S.C. § 3150 (bail jump) and 26 U.S.C. § 4755(a)(1) (). A review of the history of this case discloses that on January 24, 1972, the petitioner appeared before this court and was sentenced to five years, subject to the parole provisions of 18 U.S.C. § 4208(a)(2) on the tax count, and to three years consecutive, also with the "A" number parole provision, on the bail jump.
Petitioner's initial motion filed August 30, 1973 incorporates by reference a memorandum of law prepared by his attorney. That memorandum raises a number of issues, all related to the original presentence report submitted to this court. The return was ordered on August 31, 1973, instructing the government to file its moving papers and a transcript on or before October 1, 1973. Due to compelling circumstances, including the death of the Assistant United States Attorney to whom the case had been assigned, extensions of time were permitted with the return eventually being filed on January 17, 1974. During this intervening period, petitioner filed a second § 2255 motion on November 15, 1973. The August and November filings are substantially identical with the one key exception of the deletion of a footnote from the attached memorandums of law. This footnote, which is discussed in more detail below, relates to the prior convictions which the petitioner now chooses to attack. The government's return is based upon the August filing, and as such, substantially limits itself to the issues raised in the now deleted footnote. The government has therefore submitted a supplemental filing illustrating the disparity between the papers before the court. On January 31, 1974, the petitioner filed his traverse to the government's return. In that pleading, petitioner raises a number of new issues. In lieu of requiring the government to respond to these new contentions or forcing the petitioner to summarize his actual points at issue, the court has simply considered all points raised, resolving any inconsistencies in favor of the last document filed.
In the three above described documents petitioner alleges the following grounds as the basis for the instant motion:
1. That convictions obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were considered by the trial court at the time of sentencing.
2. That the presentence report contained unsubstantiated hearsay which was used to suggest greater involvement in the crime charged.
3. That the cooperation of the defendant with law enforcement agencies was not presented to the court.
4. That, although his counsel had access to the presentence report, petitioner was denied the right to examine it prior to sentencing.
5. That the delay by the government in filing a return should render that document void.
6. That he was denied effective assistance of counsel.
7. That he was deprived of the right to speak out in his own behalf at the time of sentencing.
The court has carefully reviewed both petitions, the return filed in response thereto, the traverse, and the record of the sentencing proceeding. The finding of the court is as follows:
Farrow's first contention is that felony convictions obtained without the assistance of counsel were considered by the court at the time of sentencing and led to the imposition of a more severe punishment. The presentence report prepared by the Probation Department disclosed that the petitioner had a significant adult criminal record. It revealed that Farrow's convictions were as follows:
Date Offense State Sentence
(1) 12-12-49 Forgery-First Washington 30 days
Degree 2 yrs
probation
(2) 3-23-50 Forgery, grand California 1-14 yrs
theft auto, in prison
escape
(3) 12-20-52 2 counts California 1-15 yrs
burglary, in prison
forgery
(4) 11-9-56 Burglary California 6 months
to 15 yrs
in prison
(5) 10-1-59 Burglary California 6 months
to 15 yrs
in prison
(6) 5-26-64 Robbery, 2nd California 1 year to
degree life
Additionally, the report, in considerable detail, provided information concerning the offenses to which petitioner entered his plea of guilty and gave a history of his personal traits and background. It concluded that the petitioner, ". . . appears as the leader or partner of a large narcotics operation in the San Diego area . . .".
The memorandum of law attached to petitioner's first filing contains a footnote which challenges two prior convictions as being obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). These convictions were obtained in April of 1950 and in July of 1950. A reexamination of the prior convictions that were detailed in the presentence report reveals that neither of these convictions were considered by the court at the time of sentence since both had evidently been deleted on some earlier occasion. Were these the only convictions at issue the petitioner would clearly not be entitled to any relief. However, in subsequent filings petitioner has chosen to attack the first four convictions detailed in the presentence report. This places the court in a position where it must reexamine all of the contested prior convictions and determine whether the petitioner was prejudiced by their inclusion in the presentence report.
In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971) hereinafter cited as Tucker, the United States Supreme Court made it clear that convictions obtained in violation of Gideon v. Wainwright, supra, were not to be used for any purpose. In Tucker, the petitioner had established in collateral proceedings that prior convictions were in fact invalid. The Court held that it was error for the District Court to consider constitutionally infirm convictions to enhance punishment for another offense and remanded the case for resentencing.
Because of the widespread practice of including prior convictions in presentence reports and the Supreme Court's subsequent holding of full retroactivity to Gideon v. Wainwright, supra, in Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), implementation of the Tucker decision has created numerous procedural difficulties. When presented with a similar problem the Fifth Circuit Court of Appeal in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972) hereinafter cited as Tucker, offered the following judicial procedure.
On remand, we feel that the following procedures by the district court would be appropriate. First, the district court should review the records involved in this conviction and determine if, treating the state convictions alleged to have been unconstitutional as void and thus not to be considered in sentencing, the five-year maximum sentence would still be the appropriate sentence based on the records of the trial and petitioner's adjusted conviction record (which would still consist of a twenty-five year sentence on a federal counterfeiting charge). If the district court finds that the maximum sentence would still be appropriate, an order so setting forth would seem sufficient to comply with the requirements of Tucker. If, on the other hand, the district court finds that should these prior convictions be proven unconstitutional and void that the maximum sentence would not be appropriate, then it should grant petitioner an evidentiary hearing and allow him to present evidence on his claim that the prior convictions in question were unconstitutional due to Gideon. If the district court is convinced of the validity of petitioner's allegations after such a hearing, it may then properly resentence. Such a procedure seems best designed to fully protect petitioner's rights. Lipscomb, supra, at 1323.
Following this recommended procedure, the court has reviewed all of the records including the presentence report and has concluded that even if all challenged priors are disregarded the sentence would be the same in this case. Farrow has challenged the first four sentences listed above. Two unchallenged sentences arising from convictions for burglary and robbery remain. When the facts that were before the court are considered with the unchallenged priors, there is clearly justification for the sentence that was imposed and it should remain intact irrespective of Farrow's allegations of violations of Gideon v. Wainwright, supra.
The Lipscomb approach has also been adopted by the First Circuit in United States v. Sawaya, 486 F.2d 890 (1st Cir. 1973), and appears to be the most meritorious manner to protect the rights of the petitioner without unduly consuming judicial resources. Other circuits have demanded that petitioner first invalidate all priors in the courts that originally obtained the convictions before seeking relief under the...
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