McAnulty v. United States, 72 C 173(1).

Citation341 F. Supp. 927
Decision Date10 April 1972
Docket NumberNo. 72 C 173(1).,72 C 173(1).
PartiesHarold Gene McANULTY, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Eastern District of Missouri

Harold Gene McAnulty, pro se.

Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., John P. Glynn, Asst. U. S. Atty., for respondent.

MEMORANDUM

MEREDITH, Chief Judge.

This matter is before the Court on petitioner's motion to vacate and set aside sentence under the provisions of 28 U.S. C. § 2255 in criminal case No. 68 Cr. 141(2). Leave to proceed in forma pauperis has been granted.

On September 9, 1968, petitioner, represented by counsel, was found guilty by a jury of violating the provisions of Title 18, U.S.C. § 659. On September 20, 1968, he was sentenced by this Court to a term of six years in the custody of the United States Attorney General.

Petitioner contends that his sentence is invalid in that this judge (who was the trial judge in the criminal case) unknowingly used and gave explicit consideration to three prior felony convictions which petitioner alleges to have been obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963) and to materially false assumptions as to another prior felony conviction, in order to enhance petitioner's sentence. Petitioner does not challenge the validity of his conviction in the above cause, only the sentence.

Gideon v. Wainwright, supra, made it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. That decision was retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963).

The United States Supreme Court has held that to permit a conviction obtained in violation of Gideon to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case. 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). In the earlier case of Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the Supreme Court held that there had been a denial of due process to a prisoner who, while disadvantaged by lack of counsel, was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.

The record in the instant case reveals that this judge questioned petitioner in regard to his prior convictions before imposing sentence. It is noted that neither petitioner nor his counsel questioned the validity of any prior convictions at that time. Petitioner...

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5 cases
  • Farrow v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 31 Agosto 1978
    ... ... Lawrence Leroy FARROW, Plaintiff-Appellant, ... UNITED STATES of America, Defendant-Appellee ... No. 74-2429 ... apparently independently, by the Eighth Circuit in McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972). That case ... Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232 (1952), must be similarly ... ...
  • Del Piano v. U.S., 77-2064
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 26 Abril 1978
    ...575 F.2d 1066 ... Frank R. DEL PIANO, Appellant, ... UNITED STATES of America ... No. 77-2064 ... United States Court ... 1974); McAnulty v. United States, 341 F.Supp. 927 (E.D.Mo.1972), aff'd 469 ... ...
  • Collier v. United States, Civ. A. No. 40099.
    • United States
    • U.S. District Court — Western District of Michigan
    • 21 Noviembre 1973
    ... ... See McAnulty v. United States, 341 F.Supp. 927 (W. D.Mo.1972) affirmed 462 F.2d 254 (8th Cir. 1972); Rogers v ... ...
  • Reyes v. Slayton, Civ. A. No. 72-C-5-D.
    • United States
    • U.S. District Court — Western District of Virginia
    • 17 Abril 1972
    ... ... Civ. A. No. 72-C-5-D ... United States District Court, W. D. Virginia, Danville Division ... April 17, ... ...
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