Lipscomb v. Clark

• Decision Date: 15 November 1972
• Docket Number: 72-3022 Summary Calendar.,No. 72-1150,72-1150
• Citation: 468 F.2d 1321
• Parties: Robert Edward LIPSCOMB, Petitioner-Appellant, v. J. J. CLARK, Warden, U. S. Penitentiary, Respondent-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Robert E. LIPSCOMB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

468 F.2d 1321 (1972)

Robert Edward LIPSCOMB, Petitioner-Appellant, v. J. J. CLARK, Warden, U. S. Penitentiary, Respondent-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. LIPSCOMB, Defendant-Appellant.

Nos. 72-1150, 72-3022 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 2, 1972.

On Rehearing November 15, 1972.

Robert Edward Lipscomb, pro se.

John W. Stokes, U. S. Atty., George H. Connell, Jr., Asst. U. S. Atty., Atlanta, Ga., for J. J. Clark, Warden.

Ira DeMent, U. S. Atty., Montgomery, Ala., for the United States.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The name of Robert Lipscomb, petitioner in this action, should be familiar to a majority of the judges on this circuit. During the past three years no less than three other panels have passed on issues he has raised in connection with this conviction and sentence to five years on a Dyer Act charge by the District Court for the Middle District of Alabama.

After struggling through a massive compilation of pro se petitions of various shades and hues, we find that petitioner raises essentially two issues which merit further discussion and which have not precisely been the subject of any of our prior rulings. First, the petitioner claims that the recent case of United States v. Tucker, 404 (also on page 3) U.S. 443, 92 S.Ct. 589, 30 L.Ed. 2d 592 (1972), requires remand to the district court for possible resentencing. Secondly, petitioner contends that federal prison authorities have failed to give him full credit for time spent in jail without bail due to the existence of a federal detainer warrant.

The TUCKER Issue

Petitioner now asserts that a string of three old Michigan state court convictions were obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Such invalid convictions may not, of course, be used to "enhance punishment for another offense". Burgett v. Texas, 389 U. S. 109, 114, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Supreme Court recently applied these rules in a case where the district court had before it at sentencing, in the record of the accused, prior convictions which were later held invalid under Gideon. The court found that remand for resentencing was required since the district court might not impose the maximum sentence when aware that the priors were unconstitutionally obtained. United States v. Tucker, 404 U. S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

We find that this case, despite some factual differences from Tucker, is controlled by that decision and that remand is necessary. This determination is clearly in accord with the position of the Solicitor General of the United States before the Supreme Court in one of the earlier rounds of this petitioner's long battle with the United States. The Supreme Court denied certiorari in Lipscomb v. United States, 404 U.S. 1021, 30 L.Ed.2d 670 (1972), the day before Tucker was announced. In a supplementary memorandum, the Solicitor General joined with Lipscomb's petition for rehearing, urging that the case should be remanded to the district court in light of Tucker. Although the Supreme Court ultimately denied the petition for rehearing, 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823 (1972), this is, of course, not dispositive of the merits of the case. Neither this court nor the district court has had the opportunity to consider this claim by petitioner since the Tucker decision until now.

The primary difference between the facts in Tucker and this case is that in Tucker the unconstitutionality of the prior convictions had been fully adjudicated in the state courts. Here there is only Lipscomb's allegation that the priors were obtained in violation of Gideon. The Solicitor General did not find this distinction sufficient to place this case outside the scope of Tucker. We agree.

On remand, we feel that the following procedures by the district court would be appropriate. 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 five-year maximum sentence would still be the appropriate sentence based on the records of the trial and petitioner's adjusted conviction record (which would still consist of a twenty-five year sentence on a federal counterfeiting charge). If the district court finds that the maximum sentence would still be appropriate, 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 should these prior convictions be proven unconstitutional and void that the maximum 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. Such a procedure seems best designed to fully protect petitioner's rights.

The "Jail Time" Issue

Petitioner also alleges that the federal penal authorities have not properly given him credit for all the time he spent in jail unable to make bail due to the existence of an unexecuted mandatory release violator's warrant. The very detailed and accurate computation of Lipscomb's remaining time by the federal prison authorities clearly refutes this claim.

Petitioner does not seem to grasp that there are two non-concurrent sentences involved. First, there is the time remaining on the 1950 federal counterfeiting conviction which was covered by the mandatory release violator's warrant; secondly, there is the five-year...