Collier v. United States, Civ. A. No. 40099.

• Citation: 367 F. Supp. 554
• Decision Date: 21 November 1973
• Docket Number: Civ. A. No. 40099.
• Parties: Joe Buck COLLIER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Michigan

367 F. Supp. 554

Joe Buck COLLIER, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 40099.

United States District Court, E. D. Michigan, S. D.

November 21, 1973.

Joe Buck Collier, pro se.

Ralph B. Guy, Jr., U. S. Atty., Kenneth J. Haber, Asst. U. S. Atty., Detroit, Mich., for respondent.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This is a motion to vacate sentence filed in pro per by Joe Buck Collier pursuant to 28 U.S.C. Section 2255. This court sentenced petitioner to a term of four years on July 6, 1972 for violation of 18 U.S.C. Section 473, "Transfer of Counterfeit Federal Reserve Notes." The sentence is presently being served in the federal prison at Atlanta, Georgia. The petitioner asks this court to resentence him in view of the mandate of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971). He asserts that this court considered and relied upon his prior state criminal record in imposing his present sentence and that this record contains state sentences that are constitutionally infirm. Thus, petitioner contends that the federal sentence merits reconsideration upon a basis which does not include misinformation derived from the record.

Petitioner brings to the court's attention the following matters which appear in his criminal record and which are claimed to be infirm under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963):

(1)(a). A 1959 arrest for larceny from a building. Petitioner was given a two-year probation, some county jail time, and a fine. The record of the guilty plea and waiver of counsel in regards to this charge are submitted by respondent as Exhibit A.

(1)(b). A 1960 violation of the probation referred to above and the subsequent revocation of that probation. Petitioner was sentenced to 1½ to 4 years. An outstanding car theft charge was suspended at that time. Petitioner contends that this reference to a car theft charge has remained on his record, thereby influencing the parole board to deny him parole.

(2). A 1964 charge of attempted Larceny and a 1966 charge of Uttering and Publishing. Petitioner pled guilty to both charges with the aid of court appointed counsel. Both pleas are allegedly tainted by coercion in that he was told to "either plead guilty or get the maximum!"

(3). A 1970 arrest for Attempted Murder. The charge was dropped when the victim testified that the shooting was an accident. Petitioner was then charged with Careless and Reckless Use of Firearms and fined $25. He had no counsel.

None of these matters have been attacked in the state court.

The petitioner then quotes the following passage from the transcript of the sentencing proceeding, where the court stated:

I have received a pre-sentence report in this case, as I requested at the time I accepted your plea of guilty. I have gone over it carefully and it has been considered by a Sentencing Council of this court. It indicates, among other things, that Mr. Collier does have what I consider a very serious record. He has been incarcerated in the State Prison on three different occasions. (Transcript, p. 4, Cr. # 46904)

From this quotation, petitioner wishes to show that this court relied solely on the allegedly invalid prior state convictions, or at least to such a degree that re-evaluation of the sentence is now in order.

While it is true that Tucker mandates resentencing where the record relied upon contained matters which should have played no part in considering the ultimate sentence, the mere fact that the prisoner's prior record was considered is not, by itself, enough to merit resentencing. Tucker does not condemn a sentence which resulted from reference to matters not on the prior criminal record or pertinent factors on the criminal record which meet the proper requisites of constitutionality. To paraphrase Tucker, the real question presented in this matter is whether this court would have imposed a different sentence on petitioner if it had known at the time of sentencing that any of the state convictions appearing on the record were invalid.

The court has reviewed the pre-sentence report which it had before it at the time the present sentence was set. It contains references to numerous criminal convictions, although most of them are not of a serious nature and like the charge of Careless and Reckless Use of Firearms, played no part in the consideration of the present sentence. However, several matters which are part of the petitioner's prior criminal record are of a serious nature, and this court cannot say that were these matters to be invalidated on constitutional grounds that it would have given the sentence that it did.

The matters which this court refers to are the 1964 conviction for attempted larceny and the 1966 conviction for uttering and publishing. Were these convictions shown to be the product of coercion, as claimed by petitioner, a different sentence on the federal charge would be in order. On the other hand, if these two convictions are not invalid, then even assuming arguendo, that the 1959 larceny from a building charge is invalid, this court can certify that the present sentence of four years is, under the facts of this case, an appropriate sentence for a conviction which provided a maximum of ten years. See McAnulty...