Greene v. U.S.

• Decision Date: 21 August 1989
• Docket Number: No. 88-8475,88-8475
• Citation: 880 F.2d 1299
• Parties: James Alfonso GREENE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1299

880 F.2d 1299

James Alfonso GREENE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 88-8475.

United States Court of Appeals Eleventh Circuit.

Aug. 21, 1989.

Roy E. Paul, Savannah, Ga., for petitioner-appellant.

William H. McAbee, II, U.S. Dept. of Justice, U.S. Attorney's office, Savannah, Ga., for respondent-appellee.

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

Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

This case arises on appeal from the denial of a motion brought under 28 U.S.C.A. Sec. 2255 to vacate, amend, or set aside the sentence of James Alfonso Greene. Greene was convicted of violating 18 U.S.C.App. Sec. 1202(a), repealed, Pub.L. No. 99-308, Sec. 104(b), 100 Stat. 449, 459 (1986), ¹ by possessing a firearm after having been convicted of a felony. The district court sentenced Greene to fifteen years' incarceration without probation or parole pursuant to the enhanced penalty provision of section 1202(a) because he had been convicted of three prior felonies involving burglary. We affirm.

I. FACTS

On October 4, 1985, police officers in Savannah, Georgia, executed a search warrant on the apartment of petitioner's girlfriend. The officers discovered petitioner in possession of a stolen 9mm automatic pistol and two twelve-gauge shotguns. Petitioner was indicted under section 1202(a). The superseding indictment under which petitioner was convicted charged him with eight prior felony convictions: four 1962 convictions for burglary; a 1962 conviction for assault; a 1970 conviction for burglary; a 1973 conviction for embezzlement; and a 1977 conviction for burglary. Section 1202(a) provided for an enhanced sentence if the defendant had been convicted previously three or more times of robbery or burglary. ² The 1973 conviction for embezzlement and the 1962 conviction for assault could not have been used for penalty enhancement because section 1202(a) refers only to prior robbery or burglary convictions. On March 27, 1986, petitioner was convicted of possessing a firearm after having been convicted previously of a felony.

On April 24, 1986, the district court sentenced petitioner to fifteen years' imprisonment without parole, based on the 1977, the 1970, and the 1962 burglary convictions. On direct appeal, this Court affirmed the conviction and sentence. United States v. Greene, 810 F.2d 999 (11th Cir.1986).

On October 15, 1987, a Georgia state court struck petitioner's 1962 burglary convictions from his record because the court records did not show he had either pleaded guilty or been convicted after trial. Shortly thereafter, on December 3, 1987, petitioner filed a motion under 28 U.S.C.A. Sec. 2255 to vacate, set aside, or modify his sentence. ³ Petitioner argued that in light of the 1987 state court decision the district court incorrectly considered his 1962 convictions. Petitioner argued that the court could have used only his 1970 and 1977 convictions for enhancement purposes, and that because section 1202(a) provided for enhancement after three prior convictions, his sentence had to be modified.

The district court denied petitioner's motion in an order dated August 26, 1988, based on findings of fact and conclusions of law made orally on June 16, 1988. ⁴ The district court found petitioner had been convicted of at least three prior felonies involving burglary or robbery: the 1970 and 1977 convictions for burglary and a 1981 conviction for burglary. Petitioner argued that his 1981 conviction for burglary could not be used to enhance his sentence because he had been denied the effective assistance of counsel in that proceeding. The district court found that although petitioner had proceeded without counsel in the change of plea proceeding that resulted in his 1981 burglary conviction, he failed to establish that he did not waive his right to counsel. The district court also found petitioner was barred from challenging the use at sentencing of his 1962 convictions because he had failed to challenge those convictions at sentencing or on direct appeal. Thus, the district court denied petitioner's motion because sufficient prior convictions existed to support the enhanced sentence.

II. DISCUSSION

As a preliminary matter, petitioner has the burden of proving his sentence is infirm. See generally United States v. Gray, 626 F.2d 494, 502 (5th Cir.1980) (petitioner on section 2255 motion has burden of proving trial court considered an invalid prior conviction), cert. denied, 449 U.S. 1091, 101 S.Ct. 887, 66 L.Ed.2d 820 (1981). Petitioner raises three issues on appeal. Petitioner argues that the district court could not have considered his 1981 conviction, first because that conviction was not charged in the indictment, and second because he was not represented by counsel in the proceeding that resulted in his conviction. Petitioner also argues that the trial court could not have considered his 1962 convictions because he had never pleaded guilty or been convicted after trial of burglary. Finally, petitioner argues that his 1977 conviction could not have been considered to enhance his sentence because it was a conviction for theft, not burglary. We address each of these arguments in turn.

A. The 1981 Conviction

Petitioner argues his 1981 conviction was invalid because he entered a guilty plea without the assistance of counsel. As a general matter, convictions obtained in proceedings in which a criminal defendant lacked the effective representation of counsel cannot be used to enhance punishment upon a subsequent conviction. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (uncounseled conviction cannot be considered in sentencing); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (uncounseled conviction cannot be used for enhancement The Supreme Court decided Lewis on narrow statutory grounds. The Court held that in defining an offense under section 1202, Congress did not intend to make an exception for individuals whose prior convictions might prove infirm. Lewis, 445 U.S. at 62, 100 S.Ct. at 919. The Court stated that the proper course for an individual who suspected his conviction was infirm would be to vacate the conviction before possessing a firearm. Id. at 64, 100 S.Ct. at 920; accord United States v. Kolter, 849 F.2d 541 (11th Cir.1988).

under recidivist statute). In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), however, the Supreme Court held that a conviction obtained in a proceeding in which a defendant lacked the assistance of counsel could form the basis of a conviction under section 1202 if not vacated or otherwise removed prior to the possession of a firearm. Under Lewis, a defendant cannot challenge the validity of an underlying conviction as a defense to prosecution under section 1202. Id. at 65, 100 S.Ct. at 920; see, e.g., United States v. Davis, 773 F.2d 1180, 1181 (11th Cir.1985).

Congress can define an offense to include a prior conviction regardless of whether the conviction may be invalid. Lewis, 445 U.S. at 65-66, 100 S.Ct. at 920-921. In contrast, the Sixth Amendment prohibits the use to enhance a sentence of a conviction obtained in a proceeding in which defendant lacked the assistance of counsel. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court in United States v. Standridge, 810 F.2d 1034, 1038-39 n. 3 (11th Cir.), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987), implied that a conviction under section 1202(a) after three prior felony convictions is a different substantive offense from a conviction under section 1202(a) after one prior felony conviction. If this were true, under Lewis the invalidity of the prior convictions would not be a ground for challenging the sentence. We conclude, however, that Congress added this section as a punishment enhancement provision rather than as a different substantive offense. See United States v. Hawkins, 811 F.2d 210, 217-20 (3rd Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), cert. denied, 480 U.S. 920, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987); see also United States v. Hill, 863 F.2d 1575, 1576 n. 1 (11th Cir.1989) (collecting cases); United States v. Greene, 810 F.2d 999, 1000 (11th Cir.1986); see generally H.R.Rep. No. 1073, 98th Cong.2d Sess. 1, reprinted in 1984 U.S.Code Cong. & Admin.News at 3182, 3661 ("The Committee on the Judiciary, to whom was referred the bill (H.R. 6248) to amend title VII of the Omnibus Crime Control and Safe Streets Act of 1968 to provide enhanced penalties for certain persons possessing firearms after three previous convictions for burglaries or robberies....") (emphasis added); id. at 5, reprinted in U.S.Code Cong. & Admin.News at 3665 ("In 'enhancing' this offense [under section 1202(a) ] ..., if the defendant has been convicted three times of robbery or burglary, we are 'enhancing' an existing federal crime...."); but see United States v. Davis, 801 F.2d 754, 755 (5th Cir.1986); ⁵ H.R.Rep. No. 1073, 98th Cong., 2d Sess. 6, reprinted in 1984 U.S.Code Cong. & Admin.News at 3666 (stating that section 1202(a) is being amended through the addition of a new offense). Because this case involves punishment enhancement rather than a different substantive offense, it must be evaluated under the restrictions contained in the Sixth Amendment. We hold that the Sixth Amendment as interpreted in Tucker and Burgett prohibits the use of convictions obtained in proceedings in which a defendant lacked the effective assistance of counsel to enhance a sentence under section 1202.

Petitioner had the right under the Sixth Amendment to be represented by counsel at the 1981 change of plea proceeding in which he pleaded...