Farrow v. U.S., No. 74-2429

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: WALLACE, SNEED, KENNEDY and ANDERSON; CHOY; BROWNING
• Citation: 580 F.2d 1339
• Parties: Lawrence Leroy FARROW, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Docket Number: No. 74-2429
• Decision Date: 31 August 1978

Page 1339

580 F.2d 1339 Lawrence Leroy FARROW, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee. No. 74-2429. United States Court of Appeals,
Ninth Circuit. Aug. 31, 1978.

Page 1343

Lawrence Leroy Farrow, in pro per.

Terry J. Knoepp, U. S. Atty., San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN,

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WALLACE, SNEED, KENNEDY and ANDERSON, Circuit Judges.

CHOY, Circuit Judge:

Farrow appeals from the district court's determination upholding his sentence for jumping bail and failing to pay the special tax on 119 pounds of marijuana in violation of 18 U.S.C. § 3150 and 26 U.S.C. §§ 4755(a)(1), 7202. We affirm.

On January 24, 1972, appellant was sentenced to three years on the bail jump count and to five years on the tax count, subject to the early parole provisions of 18 U.S.C. § 4208(a)(2) (now 18 U.S.C. § 4201 et seq.). He subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 principally alleging that in passing sentence, the trial court considered four prior convictions rendered invalid by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Gideon was made fully retroactive in Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), and reliance on such retroactively invalid convictions to enhance punishment was proscribed in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971). The district court following the procedure adopted by the Fifth Circuit in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972) disposed of Farrow's Tucker contention saying "that even if all challenged priors are disregarded the sentence would be the same in this case," Farrow v. United States, 373 F.Supp. 113, 117 (S.D.Cal.1974). We have taken this case en banc to delineate the procedure for district courts to follow when a convict files a § 2255 motion claiming a Tucker violation. ¹

I

Tucker And its Progeny

In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court affirmed the decision of a panel of this Circuit, 431 F.2d 1292 (9th Cir. 1970), and remanded to the trial court for reconsideration of the defendant's sentence where the trial court had given explicit consideration to two prior convictions which were later held to be invalid under Gideon. The Court relied in part on its decision in Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), that "(t)o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case." 404 U.S. at 449, 92 S.Ct. at 593.

The Court made clear that its decision was not meant to limit the wide discretion that a trial judge in the federal judicial system generally has in determining what sentence to impose, or to restrict the kind or source of information that he may consider in making that determination. ² Instead,

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the Court emphasized that in Tucker, it was dealing with "a sentence founded at least in part upon misinformation of constitutional magnitude," rather than one imposed in the informed discretion of the trial judge. 404 U.S. at 446-47, 92 S.Ct. at 592. The "real question," according to the Court, was whether the original sentence might have been different if the sentencing judge had known that two of the defendant's prior convictions were unconstitutionally obtained. Id. at 448, 92 S.Ct. 589.

A successful challenge to a presumptively valid sentence based on Tucker thus requires three elements: (1) a prior conviction rendered invalid by Gideon ; (2) the sentencing judge's mistaken belief that the prior conviction was valid; and (3) enhancement of the defendant's sentence because of it. In Tucker, the existence of the first two elements was clear from the record, and the case was remanded for the trial judge to resolve whether the third element was also present.

Following Tucker, a trial judge faced with a similar § 2255 motion to vacate sentence could very simply "reevaluate" and "reconsider" the original sentence, as that case instructs, ³ to decide whether it was enhanced by his mistaken reliance on the invalid priors. See, e. g., Wheeler v. United States, 468 F.2d 244, 245 (9th Cir. 1972). ⁴ In many cases since Tucker, however, the invalidity of the prior convictions was not conclusively determined at the time of the defendant's § 2255 motion, as it was in Tucker. The procedure to be followed in disposing of the motion in these situations, where the invalidity of the defendant's prior convictions is only alleged, was not immediately clear.

The Fifth Circuit was the first to address this problem directly. In Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972), that court dealt with it as follows:

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 (original) sentence would still be the appropriate sentence . . . . If (so), 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 . . . the (original) 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.

Id. at 1323. The Fifth Circuit's approach of reconsidering the sentence without reliance on the allegedly invalid priors in order to determine whether a hearing on their validity is necessary was adopted just six weeks after Lipscomb, apparently independently, by the Eighth Circuit in McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972). That case involved a § 2255 motion which asserted that the sentencing judge had given explicit consideration to three prior felony convictions alleged to be invalid under Gideon. The Eighth Circuit affirmed the following ruling by the district judge:

Even assuming that petitioner's contentions are correct in that these previous convictions are invalid . . . it does not become necessary to resentence petitioner. . . .

(T)his judge (who was the sentencing judge) was and still is of the opinion that

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regardless of any invalidity or absence of previous convictions, under the facts and circumstances of this case, six years was the appropriate sentence for this conviction . . . . Thus, no prior convictions or materially false assumptions enhanced petitioner's sentence.

McAnulty v. United States, 341 F.Supp. 927, 928-29 (E.D.Mo.1972).

We had our first opportunity to deal with the question shortly after Lipscomb and McAnulty, and chose to follow the approach of those cases. In United States v. Eidum, 474 F.2d 581 (9th Cir. 1973), the defendant brought a § 2255 motion to modify his sentence, alleging that three of his prior convictions were defective. The district court denied the motion without a hearing into the validity of the priors, stating that the challenged convictions constituted "a very insignificant part of a very long criminal record." 474 F.2d at 582. We affirmed the sentencing judge's finding of no enhancement on the basis of Tucker, both because "the judge's own estimation of the deleterious impact of the prior convictions on his determination of sentence" would not be refuted on appeal, and because the record showed that the judge did not consider the challenged priors in imposing sentence. Id.

Following the independent adoption of this approach by three Circuits, including our own, the Fourth Circuit had occasion to rule on the question in Brown v. United States, 483 F.2d 116 (4th Cir. 1973). Brown, too, accepted the Lipscomb approach of reconsidering the sentence without reliance on the allegedly invalid priors in deciding whether a hearing on their validity is necessary; but it added the requirement that if a hearing is necessary (i. e., if the original sentence would have been different had the judge known that the priors were invalid), and if the challenge is to the validity of state convictions, then the § 2255 proceedings should be dismissed as premature, and the validity of the priors determined in collateral proceedings directly attacking them. This suggestion that the federal courts may not pass on the constitutional validity of prior state convictions under Gideon without requiring initial resort to the state courts of conviction was rejected by the Fifth Circuit just two weeks later in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), the court there noting:

The Tucker opinion itself contains no requirement that a defendant return to the court or state of a prior conviction to secure a ruling of invalidity to support his § 2255 motion nor any hint that Tucker had exhausted Louisiana and Florida procedures for attacking any of the three convictions challenged in that case. (Footnote omitted.) . . . Since the Supreme Court affirmed the Ninth Circuit's order remanding the case for resentencing "without consideration of any prior convictions (invalid under Gideon )," and did not suggest that the determination of the third conviction's validity should be made in a state court before resentencing, it seems apparent that the determination was to be made in the district court.

Id. at 293. ⁵

The Lipscomb -sans-Brown formulation of Mitchell was later successively adopted by the Tenth Circuit in United States v. Green, 483 F.2d 469 (10th Cir.), Cert. denied, 414 U.S. 1071, 94 S.Ct. 583, 38 L.Ed.2d 477 (1973), the First Circuit in United States v. Sawaya, 486...