Brown v. United States

• Decision Date: 01 August 1973
• Docket Number: No. 72-1312.,72-1312.
• Citation: 483 F.2d 116
• Parties: Edward Eugene BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

483 F.2d 116 (1973)

Edward Eugene BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 72-1312.

United States Court of Appeals, Fourth Circuit.

Argued April 3, 1973.

Decided August 1, 1973.

David H. Erisman and John E. Skvarla, III, Third Year Students (Daniel H. Uollitt, Chapel Hills, N.C., Court-appointed counsel on brief), for appellant.

Oscar W. Bannister, Jr., Asst. U.S. Atty. (John K. Grisso, U.S. Atty., on brief), for appellee.

Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

On October 7, 1968 the petitioner plead guilty in the district court to two counts of mail fraud under Section 1341, 18 U.S.C. Since the petitioner had not consented to a pre-sentence report prior to the entry of his plea, no such report was available at the time his plea was entered. He, however, asked to be sentenced without delaying to secure such a report. In an effort to learn something about the petitioner in the absence of any presentence report, the trial court requested a Federal Bureau of Investigation report or sheet of prior charges against the petitioner. It developed that the petitioner was not unversed in criminal law. The report indicated that he had been engaged in a number of brushes with the law. The Court did not rely on the report, however, but carefully went over each charge appearing on the sheet with the petitioner. The petitioner admitted three prior state convictions, as set forth on that sheet.¹ The Court then sentenced the petitioner to the maximum penalty of five years on one count of the indictment, and one year on the other count, to run consecutively with the sentence imposed on the first count.

On February 28, 1972, following the issuance of United States v. Tucker (1972) 404 U.S. 443, 92 S.Ct. 589, 30 L. Ed.2d 592, the petitioner filed a petition under Section 2255, 28 U.S.C. In his petition, the petitioner alleged that the three prior state convictions he had admitted to at his sentencing had all occurred without the benefit of counsel. Citing Tucker, the petitioner asked that his original sentence be vacated and that he be re-sentenced without the court considering the three prior convictions.

The district court dismissed the petitioner's petition without requiring a response by the Government. The petitioner has appealed that dismissal, contending that Tucker, applied retroactively, renders his sentence invalid and compels re-sentencing without any consideration of the three prior challenged convictions. We reverse and remand for further proceedings.

It is the position of the Government in its brief that the issue of retroactivity of Tucker is not ripe for adjudication on the undeveloped record in this case. It emphasizes that there has been no determination that the petitioner was without counsel at the convictions in issue. All that was before the district court on this issue was the bare allegation of the petitioner's petition to the effect that he was not furnished counsel at these trials. The Government was afforded no opportunity to answer that claim or to be heard. It argues that it may well be that the petitioner had counsel or had validly waived counsel and that, if so, it would be unnecessary—in fact, it would be improper—for the district court to consider the retroactivity of Tucker. In short, the Government contends that it is entitled to put at issue by a response the petitioner's allegation that he was without counsel at his prior convictions or had validly waived counsel and to have this fact, if put in issue by the Government's response, determined at an evidentiary hearing. Until that right has been accorded it, the retroactivity of Tucker, it contends, is not ripe for decision.

Lipscomb v. Clark (5th Cir. 1972) 468 F.2d 1321, suggests that the proper procedure to be followed by District Courts, confronted with a petition raising issues such as those posed under Tucker by this petition, contemplates an initial preliminary review of the records in the case in order to determine whether, assuming that the state convictions which the petitioner asserts are constitutionally invalid are invalid, the sentence imposed on the petitioner "would still be the appropriate sentence." If the District Court finds that the sentence "would still be the appropriate sentence", this decision holds that an order setting forth such finding and dismissing the petition for that reason "would seem sufficient to comply with the requirements of Tucker."² We are disposed to approve this procedure. It may be that the able District Judge, who dismissed this petition, followed the procedure suggested. Unfortunately, though, the order of dismissal did not make the basic finding that the sentence imposed "would still be the appropriate sentence" as the reason for its dismissal. It would accordingly be necessary in any event to remand the proceeding to the District Court in order that it might review the record to determine whether, assuming the invalidity of the three state convictions in question, its sentence would be the same.

Of course, should the District Court find that its sentence would be different, assuming that the state convictions are constitutionally invalid, it will then be in order for the District Court to consider the state convictions themselves. If the state convictions have been invalidated for want of counsel in habeas proceedings begun initially in the state court where such convictions were had, there is no problem; Tucker mandates re-sentencing. If, on the other hand, the state convictions have not been assailed in habeas proceedings begun in the state court where convictions were had, the District Court might well give consideration to dismissing the proceedings as premature.

A petitioner under Section 2255, it would seem, should not be able to assail a sentence imposed on him in federal court on the basis of an unresolved claim of invalidity leveled at other and different state sentences, especially if those sentences were imposed in another state and jurisdiction than that within which the federal conviction was had. In short, a 2255 proceeding based on Tucker, which is itself a collateral proceeding, should not have as its essential predicate a collateral attack on still another sentence, especially if the sentence was imposed by a state court of another jurisdiction, which has not been invalidated in proceedings originally begun in that latter jurisdiction. A contrary conclusion would mean that a petitioner might use a collateral proceeding in one jurisdiction to make "a collateral second-level" attack on judgments of convictions rendered in state courts, in which there had been not the slightest attempt at exhaustion of state remedies. Cf., Loper v. Beto (1972) 405 U.S. 473, 500, 92 S.Ct. 1014, 31 L.Ed.2d 374 (Rehnquist, J., dissenting). If the state conviction is in another state from that in which the 2255 proceedings are had, the State procuring the challenged conviction would not be a party to the proceeding, would not have been heard on the invalidation of its conviction, and would have been denied the right to a prior exhaustion of state remedies as required under Section 2254(b), 28 U.S.C. All of these reasons were recognized and commented on in Word v. State of North Carolina (4th Cir. 1969) 406 F.2d 352, 356-357, and represent in substantial degree the basis for the decision in Braden v. 30th Judicial Circuit Court of Kentucky (1973) 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443, filed February 28, 1973.³ They appear sufficient warrant for requiring that a prisoner who bases his attack against one sentence on a collateral attack on another state sentence, particularly, when imposed in a foreign jurisdiction, to attack first the underlying sentence in the court imposing that sentence. See, United States v. Wilkins (2d Cir. 1962) 303 F.2d 883; Jacobs v. Texas (5th Cir. 1973) 470 F.2d 1366; and Mitchell v. United States, supra, 350 F.Supp. 366.⁴ After all, it can hardly be gainsaid that a more orderly and justiciable review of the validity of a conviction can be afforded by the sentencing court than by a court of a foreign jurisdiction and this seems to have been the primary thrust of Braden.⁵

We recognize that, contrary to our conclusion, Lipscomb would seemingly permit a prisoner to use a collateral attack on a conviction and sentence as a vehicle for a collateral attack on another state sentence or conviction, even though there had been no prior challenge of this underlying latter sentence or conviction and no exhaustion of state remedies with respect to it.⁶ That ruling is certainly contrary to the procedure followed in United States v. Wilkins, supra. In that case, the prisoner employed an attack on a New York conviction and sentence as a basis for attacking an underlying South Carolina conviction.⁷ The Court, in considering jurisdiction to entertain such an indirect attack on the South Carolina conviction, predicated its finding of jurisdiction on the "uncontroverted" fact that there was no remedy in South Carolina for attacking the South Carolina conviction. Thus, the Court said (at 884, of 303 F.2d):

"* * * The district court has found that there is not presently available to petitioner any means by which he may challenge in South Carolina a conviction there rendered. We accept this finding, here uncontroverted, based on research by the district judge and concession at the habeas corpus hearing by the Assistant Attorney General."

It would seem to follow from this statement of jurisdiction that, had a state remedy been available to the petitioner in the state courts of South Carolina to attack the underlying South Carolina conviction, resort to such remedy would have been a jurisdictional requirement for the maintenance of the habeas proceeding attacking the New York conviction and sentence. Cf., Jacobs v. Texas, supra, 470 F.2d 1366; and Gutierrez v. Estelle (5th Cir., 1973) 474 F.2d 899.⁸

The procedure...