Garrett v. Swenson, 71-1559.

• Decision Date: 16 May 1972
• Docket Number: No. 71-1559.,71-1559.
• Parties: Billy Joe GARRETT, Appellant, v. Harold R. SWENSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.2d 464 (1972)

Billy Joe GARRETT, Appellant, v. Harold R. SWENSON, Warden, Appellee.

No. 71-1559.

United States Court of Appeals, Eighth Circuit.

Submitted February 18, 1972.

Decided May 16, 1972.

Robert Popper, Kansas City, Mo., for appellant.

Kenneth M. Romines, Asst. Atty. Gen., John C. Danforth, Atty. Gen., Jefferson City, Mo., for appellee.

Before BREITENSTEIN,^* BRIGHT, and STEPHENSON, Circuit Judges.

PER CURIAM.

Billy Joe Garrett appeals from an order of the district court denying his petition for habeas corpus relief. Garrett v. Swenson, 331 F.Supp. 1197 (E.D.Mo.1971). Petitioner was convicted of robbery by a jury in the Circuit Court of New Madrid County, Missouri. The trial court imposed a sentence of fifty years imprisonment. Following three unsuccessful appeals to the Missouri Supreme Court, petitioner filed the instant habeas corpus petition.¹

Petitioner raises five issues for review. We discuss only one issue here: whether petitioner is entitled to have his sentence reconsidered because the trial court considered an allegedly invalid conviction in imposing sentence. We have thoroughly reviewed the remaining issues raised by petitioner and find them either to be without merit or to present no constitutional question.²

Before imposing sentence on petitioner, the trial judge questioned the prosecutor about petitioner's prior criminal record. The prosecutor informed the judge that petitioner had suffered three prior felony convictions. One of these three convictions was a 1952 conviction for jail breaking. Petitioner asserts that this conviction is constitutionally invalid because he was not afforded the right to counsel at the 1952 proceeding. Neither the Missouri Supreme Court nor the District Court determined whether petitioner was represented by counsel at the 1952 proceeding. Instead, both courts assumed that, because petitioner had suffered two other unchallenged convictions, he was not entitled to any relief. The Missouri Supreme Court said:

The insuperable difficulty with the claim of Billy Joe Garrett * * is that * * * the state alleged numerous other felony convictions and these convictions with counsel were proved and found in the principal trial by the judge * * * and they are not challenged here. Garrett v. State, 459 S.W.2d 378, 380 (Mo.1970)

The District Court's decision was based on essentially the same reasoning.

This reasoning cannot be squared with the Supreme Court's recent decision in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). The Court there made clear that a sentence which is tainted by a trial judge's consideration of a constitutionally invalid conviction cannot stand. In Tucker, only two of the three convictions which the trial judge considered were conclusively determined to be invalid. The government argued that, given the trial judge's knowledge of the defendant's prior valid conviction and past conduct, a remand for resentencing would be a futile exercise. The Court soundly rejected this argument, stating:

If the trial judge * * * had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent\'s background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would have then been dealing with a man who, beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang. We cannot agree with the government that a re-evaluation of the respondent\'s sentence by the District Court even at this late date will be either "artificial" or "unrealistic." 404 U.S. at 448-449, 92 S.Ct. at 592 (footnotes omitted)

If petitioner can establish that he was not afforded the right to counsel at the 1952 proceeding, he is entitled under Tucker to have his sentence reconsidered.³ Since petitioner's claim has not yet been considered, we remand this case with an instruction to the district court to hold and evidentiary hearing on petitioner's claim.⁴

* Of the Tenth Circuit, sitting by designation.

1 See State v. Garrett, 416 S.W.2d 116 (Mo.1967); State v. Garrett, 435 S.W.2d 662 (Mo.1968); Garrett v. State, 459 S.W.2d 378 (Mo.1970).

2 These issues are:

1) Whether petitioner was denied due process of law because the trial court allegedly sentenced him under the wrong statute by mistake;

2) Whether petitioner was denied due process of law because the state allegedly utilized unfair procedures on petitioner's post-conviction motion in the state court;

3) Whether petitioner received a fair hearing in the state court on his constitutional...