Flippins v. U.S., 84-5060

• Decision Date: 09 November 1984
• Docket Number: No. 84-5060,84-5060
• Citation: 747 F.2d 1089
• Parties: Donnell FLIPPINS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1089

747 F.2d 1089

Donnell FLIPPINS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 84-5060.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 25, 1984.

Decided Nov. 9, 1984.

Donnell Flippins, pro se.

Willie E. Peale, Jr. (argued), Frankfort, Ky. (court-appointed), for petitioner-appellant.

Ronald Meredith, U.S. Atty., Hancy Jones, III, Alan Sears (argued), Asst. U.S. Attys., Louisville, Ky., for respondent-appellee.

Before JONES and CONTIE, Circuit Judges, and GILMORE, District judge. ^*

PER CURIAM.

The petitioner, Donnell Flippins, appeals from the district court's summary dismissal of his petition for a writ of error coram nobis. We reverse and remand for an evidentiary hearing on the merits of petitioner's claim.

Donnell Flippins is currently serving a ten-year sentence on one count of Criminal Possession of a Forged Instrument, and one count as a Persistent Felony Offender, First Degree. Both counts originate under Kentucky law. Flippins' petition for a writ of error coram nobis challenges a 1971 federal felony conviction. Flippins seeks removal of the present effects of the 1971 federal conviction under Kentucky's persistent felony offender statute. The 1971 conviction in part depended upon a 1969 state felony conviction.

In 1971, Flippins was charged with attempting to board an aircraft with a weapon, unlawful possession of a firearm, and unlawful transportation of a firearm. The statutes upon which the second and third counts were based made it unlawful for a convicted felon to possess a firearm and to transport a firearm through interstate commerce. Those counts were based upon evidence that in 1969 Flippins had pled guilty to Kentucky criminal charges of attempted robbery and carrying a concealed weapon. Flippins pled guilty to all three counts in 1971.

Flippins alleges that his guilty plea was coerced by his court-appointed counsel and that the counsel's assistance during trial was otherwise deficient. Counsel was appointed for Flippins at the time of his release on bail several months before trial. He claims to have attempted unsuccessfully to contact his attorney through six phone calls and two letters. He first met the appointed attorney when the attorney appeared beside him as Flippins was called to the bench. The attorney apparently was unfamiliar with the charges in the case and had not even read the indictment. At the attorney's request, a two-hour recess was granted so that he could consult with Flippins.

Flippins claims that the attorney then asked him two questions and left for a luncheon appointment. The attorney reappeared only moments before the court reconvened. Flippins contends he told the attorney that the 1969 conviction was faulty and that the attorney replied, "that can be straightened out later."

Flippins further claims that the attorney then coerced him into pleading guilty by stating that if he pled guilty, the attorney would get him a suspended sentence. Flippins claims the attorney told him that the judge did not tolerate defendants who "talked back" to him. He claims that the attorney told him to agree with the judge's questions. Flippins says counsel promised to get him a suspended sentence, represented that he and the judge were friends, and said that Flippins had "no defense in this case at all."

The trial transcript reveals that the trial judge tested Flippins' plea along the lines required by Federal Rule of Criminal Procedure. Flippins answered that he understood he was not compelled to plead guilty, that he was satisfied with the advice of counsel, and then affirmatively responded to each of the judge's other questions. The record also reveals that after questioning Flippins, the judge asked him whether he wanted to speak on his own behalf. The court then interrupted the defendant as he spoke of mitigating circumstances.

Flippins claims that, after the plea was entered, his defense counsel promised to examine the legality of the 1969 state court conviction. He claims he never again heard from the attorney.

In 1980, Flippins was convicted of four felony counts involving forgery, credit card fraud, theft, and receiving stolen property. In 1982, he was convicted of one count of forgery and one count as a persistent felony offender in the first degree under Kentucky law. The 1971 felonies and the 1980 felonies each serve as one felony conviction for the purposes of Kentucky's persistent offender statute. If the 1971 felony were vacated his present sentence would be reduced because only one prior felony conviction would remain and thus he would be only a second-degree persistent felon.

On or about June 22, 1983, proceeding pro se, Flippins filed the petition for writ of error coram nobis on which he now appeals to this court. Three months later, after twice extending the Government's time to reply, a magistrate recommended summary dismissal of the petition. The magistrate concluded in part that the issues presented did not require an evidentiary hearing. The district court adopted the magistrate's Findings of Fact, Conclusions of Law and Recommendation. This appeal followed.

The writ of error coram nobis is available to a convicted criminal at any time following the entry of judgment against him or her. A writ of error coram nobis may be sought where, as here, the challenged sentence has been completely served. United States v. Dellinger, 657 F.2d 140, 144 (7th Cir.1981); United States v. Norman, 391 F.2d 212, 213 (6th Cir.), cert. denied, 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163 (1968). The court's scope of review of the challenged judgment on a petition for writ of error coram nobis is of limited scope. United States v. Norman, 391 F.2d at 213. Under coram nobis the court reviews errors of fact committed in the original proceeding which are "of the most fundamental character, that is, such as...