Cline v. United States, Civ. No. 6589.

• Decision Date: 05 March 1970
• Docket Number: Civ. No. 6589.
• Citation: 311 F. Supp. 747
• Parties: Wallace Dean CLINE, Petitioner, v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Texas

311 F. Supp. 747

Wallace Dean CLINE, Petitioner, v. UNITED STATES of America.

Civ. No. 6589.

United States District Court, E. D. Texas, Beaumont Division.

March 5, 1970.

MEMORANDUM OPINION AND ORDER

FISHER, Chief Judge.

Leave to proceed in forma pauperis is granted, and the Clerk will file the petition.

Petitioner seeks to attack by writ of error coram nobis a judgment of conviction of a Dyer Act offense rendered by this Court on September 6, 1944. Service of the sentence was completed more than twenty-five years ago, and because he is no longer in federal custody the Petitioner's Motion to Vacate this same sentence pursuant to 28 U.S.C.A. § 2255 was denied by this Court by order entered October 31, 1968. That order was affirmed by the Court of Appeals (Summary Calendar), 412 F.2d 323, June 3, 1969, in an opinion which concluded as follows:

"We do not have properly before us and thus do not decide whether Cline might have been entitled to coram nobis relief if, as a fact, the California sentences were enhanced because of the federal conviction, see United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L.Ed. 248 (1954); Marcello v. United States, 5 Cir. 1964, 328 F.2d 961, cert. denied 377 U.S. 992, 84 S.Ct. 1916, 12 L.Ed.2d 1045; Azzone v. United States, 8 Cir. 1965, 341 F.2d 417, cert. denied 381 U.S. 943, 85 S.Ct. 1782, 14 L.Ed.2d 706."

In United States v. Morgan the Supreme Court held that a prisoner who had been convicted of a state offense and sentenced to a longer term as a second offender because of a prior federal conviction had standing to show by motion for writ of error coram nobis that his federal conviction should be set aside on the ground that his constitutional right to counsel had been violated. This Petitioner similarly alleges that he was not advised of his constitutional right to assistance of counsel at the time he plead guilty to the offense charged. He is presently incarcerated in California state prison serving several sentences. He alleges that the 1944 sentence of this Court has been used to enhance his sentence under California law.

The relevant statute is § 3024 of the California Penal Code, which reads in pertinent part as follows:

The following shall be the minimum term of sentence and imprisonment in certain cases, notwithstanding any other provisions of this code, or any provision of law specifying a lesser sentence:

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(b) For a person previously convicted of a felony either in this State or elsewhere, and armed with a deadly weapon, either at the time of his commission of the offense, or a concealed deadly weapon at the time of his arrest, 10 years;

(c) For a person previously convicted of a felony either in this State or elsewhere, but not armed with a deadly weapon at the time of his commission of the offense, or a concealed deadly weapon at the time of his arrest, five years;

(d) For a person convicted at one trial of more than one felony and upon whom are imposed cumulative or consecutive sentences the aggregate of the minimum terms of which exceed 10 years, 10 years;

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Petitioner states that in August, 1947, he was charged in Santa Clara, California, with several felony offenses and was subsequently convicted on five counts, receiving two consecutive sentences of five years to life. He further relates that in February, 1955, he was convicted of two more felony offenses; that in September,...