Ex parte Garcia
| Decision Date | 18 January 1978 |
| Docket Number | No. 55329,55329 |
| Citation | 560 S.W.2d 948 |
| Parties | Ex parte Alfredo A. GARCIA, Jr. |
| Court | Texas Court of Criminal Appeals |
This a post conviction application for a writ of habeas corpus under Article 11.07, Vernon's Ann.C.C.P. The petitioner was convicted of possession of firearms by a felon, 1 enhanced by two prior felony convictions, 2 and the trial judge assessed punishment at life. Upon appeal, this Court affirmed the judgment by per curiam opinion delivered June 4, 1975. 3
The petitioner's sole contention is that a prior federal conviction, one of the two prior convictions alleged for enhancement purposes, is void and the life sentence is therefore invalid.
On June 11, 1970, the appellant pleaded guilty to the second count of a two-count federal indictment. 4 Count two, which alleged a violation of 18 U.S.C., App. Section 1202(a), is as follows:
The petitioner, relying on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), contends that the allegation of 18 U.S.C., App. Section 1202(a) to which he pleaded guilty was fundamentally defective because it failed to allege that he possessed a firearm "in commerce or affecting commerce."
In United States v. Bass, supra, the Supreme Court was confronted with the proper interpretation of 18 U.S.C., App. Section 1202(a). 5 The issue presented in Bass was whether a prosecution under 18 U.S.C., App. Section 1202(a)(1) could stand where "(t)here was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed 'in commerce or affecting commerce.' " United States v. Bass, supra at 338, 92 S.Ct. at 517. The Court concluded that ". . . 'in commerce or affecting commerce' is part of the offense of possessing or receiving a firearm." United States v. Bass, supra at 351, 92 S.Ct. at 524.
The threshold question, not unequivocally addressed in Bass, must necessarily be whether the phrase "in commerce or affecting commerce" constitutes an essential element of the offense of receiving or possessing a firearm. Of course, the Bass Court did conclude that this phrase was ". . . part of the offense of possessing . . . a firearm." United States v. Bass,supra at 351, 92 S.Ct. at 524. Also, two of the Circuit Courts of Appeals have directly held that the phrase "in commerce or affecting commerce" is an element of the offense of possession by a felon that must be alleged as well as proven. See Bryant v. United States, 462 F.2d 433 (8th Cir. 1972); United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972). 6 We are convinced by the foregoing authorities that the phrase "in commerce or affecting commerce" is an essential element of 18 U.S.C., App. Section 1202(a) that must be alleged (as well as proven), and that the appellant's claim is therefore facially meritorious.
However, we must also ascertain whether the federal courts 7 would grant relief pursuant to 28 U.S.C., Sec. 2254. 8 The petitioner pleaded guilty to the offense of possessing a firearm. See Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C., Rule 11. Federal decisions uniformly hold that a guilty plea waives all nonjurisdictional defects. 9 Broxson v. Wainwright, 477 F.2d 397 (5th Cir. 1973); Boyd v. Smith 435 F.2d 153 (5th Cir. 1970); Farmer v. Beto, 421 F.2d 184 (5th Cir. 1969); Rice v. United States, 420 F.2d 863 (5th Cir. 1969). Cf. Menna v. New York, 423 U.S. 61, 62, n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Ex Parte Taylor, 484 S.W.2d 748, 752 (Tex.Cr.App.1972). Where an offense is not alleged in an indictment, the indictment may be challenged at any time. United States v. Trevino, 491 F.2d 74 (5th Cir. 1974). An indictment that fails to allege each material element of an offense fails to allege that offense. United States v. London, 550 F.2d 206 (5th Cir. 1977). Thus, the omission of a material element of an offense is a jurisdictional defect susceptible to federal habeas corpus attack even though a plea of guilty was entered and no direct appeal was taken from the guilty plea. United States v. London, supra ; Hayes v. United States, supra ; Bankston v. United States, supra. We therefore conclude that the federal courts would probably grant relief to the petitioner. 10
However, even though the petitioner's claim is facially meritorious and apparently he would be entitled to relief in the federal courts, we must still ascertain whether we should grant the requested relief. Two important considerations affect our decision that the petitioner's relief should be denied.
First, the indictment alleging a violation of 18 U.S.C., App. Section 1202(a) was filed on April 2, 1970. On June 11, 1970, the petitioner entered his plea of guilty. United States v. Bass was not decided until December 1971. Thus, we must ascertain whether the Supreme Court's opinion in Bass is to be applied retroactively to cases arising under 28 U.S.C., Section 2254, where the indictment and trial were prior to Bass, but the appeal, if any, 11 may have been before or after Bass.
In this connection, our research has revealed no cases involving a retroactive application to such a fact situation. 12 In both United States v. Harris, 456 F.2d 62 (8th Cir. 1972), and Bryant v. United States, 462 F.2d 433 (8th Cir. 1972), the Eighth Circuit reversed, on direct appeal, prosecutions under 18 U.S.C., App. Section 1202(a)(1), where the indictment omitted the phrase "in commerce or affecting commerce," and where the indictment and trial were held prior to Bass. However, these cases fail to answer the retroactivity question given the present uncertain factual setting.
In Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App. 1972), this Court dealt with the Supreme Court's decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Leary held that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C., Section 4744(a), and that a federal statutory presumption of knowledge of illegal importation of marihuana from possession violated due process. In Taylor, the defendant, by writ of habeas corpus, attacked a federal conviction which had been used for enhancement purposes in a state proceeding, and alleged that Leary invalidated the federal conviction. This Court held that the first portion of Leary that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C., Section 4744(a) was retroactive, and that the federal conviction used for enhancement was therefore void.
However, our decision in Taylor was based on the fact that numerous courts had considered whether Leary was retroactive, and that the majority of the courts which had considered the question had held Leary retroactive. 13 Moreover, Leary involved a question of constitutional law, not federal law. 14
Thus, although "(s)tate courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law," Stone v. Powell, 428 U.S. 465, 493, n. 35, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976), principles of comity persuade us that it would be inappropriate to speculate whether the federal courts would apply Bass retroactively to a case where the indictment and plea of guilty were prior to Bass, but the appeal, if any, may have been before or after Bass.
Second, we are convinced that principles of comity should dissuade us from permitting collateral attack of federal indictments used for enhancement purposes in a state proceeding, particularly when the collateral attack involves matters of federal law rather than constitutional law. Indeed, we have been unable to locate even one case where a state court, either on direct appeal or in a habeas corpus proceeding, has permitted collateral attack of a federal indictment, used for enhancement purposes, on the basis that the federal indictment failed to state an offense. 15 While this may be understandable in light of the availability of federal relief pursuant to 28 U.S.C., Section 1651 or 2254, we believe that the federal courts will have the facts necessary to answer all the questions of federal law necessary to an accurate determination of this matter.
Petitioner's requested relief is denied.
VOLLERS, J., not participating.
I concur in the result reached in denying relief but for different reasons.
The State relied upon a conviction obtained under 18 U.S.C.A.App. Section 1202(a) to enhance petitioner's punishment to life. The dissent would grant petitioner relief on the basis that the indictment in that cause was fundamentally defective and that, as a result, the State failed to prove the prior federal conviction was valid.
It is not within the province of this Court to pass upon the validity of federal indictments. In essence, petitioner is collaterally attacking the validity of the federal conviction in the wrong forum. Since that conviction is final, and since neither the United States Fifth Circuit Court of Appeals nor any other federal court has declared the conviction invalid, we should give full faith and credit to the judgment of the federal district court and deny the relief sought.
Further, for reasons which follow, habeas corpus would be unavailable even in the federal courts to challenge the...
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Ex parte Garcia, 58981
...forbade us to permit collateral attacks on federal convictions used for enhancement purposes in state proceedings. Ex Parte Garcia, 560 S.W.2d 948 (Tex.Cr.App.1978). Taking us at our word, the petitioner turned to federal court for a determination of whether the federal indictment was inval......