McAnulty v. United States, 72-1275.
| Decision Date | 14 November 1972 |
| Docket Number | No. 72-1275.,72-1275. |
| Citation | 469 F.2d 254 |
| Parties | Harold Gene McANULTY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harold Gene McAnulty, pro se.
Daniel Bartlett, Jr., U. S. Atty., and J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.
Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.*
Rehearing and Rehearing En Banc Denied December 7, 1972.
Appellant, Harold Gene McAnulty, petitioned the district court under 28 U.S. C. § 2255 to vacate a six-year prison sentence which he was serving for theft of property from an interstate shipment in violation of 18 U.S.C. § 659. McAnulty asserted that the sentencing judge had given explicit consideration to three prior felony convictions which were allegedly invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), because they rested upon uncounselled guilty pleas. The judge also allegedly considered incorrect information that appellant had suffered a 1957 burglary conviction. Judge Meredith, who was both the sentencing judge and the judge on this § 2255 motion, denied McAnulty relief and this appeal followed.1 We affirm.
In ruling adversely on the motion, Judge Meredith specifically stated:
In the instant case, this judge (who was the sentencing judge) was and still is of the opinion that regardless of any invalidity or absence of previous convictions, under the facts and circumstances of this case, six years was the appropriate sentence for this conviction which provided for a maximum imprisonment of ten years. Thus, no prior convictions or materially false assumptions enhanced petitioner\'s sentence.
In light of this statement, appellant's reliance on United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), is not well taken. In Tucker, the Supreme Court ruled that where constitutionally invalid convictions may have enhanced the sentence in a federal prosecution, the case must be remanded to the trial court for reconsideration of the sentence. The Court, in rejecting the government's argument that resentencing would amount to useless procedure, commented, "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.'" Id. at 448-449, 92 S.Ct. at 592. In a footnote the Court ad...
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Wilson v. U.S.
...Cir. 1973) and cases cited in note 2. See Russo v. United States, 470 F.2d 1357 (5 Cir. 1972). In the Eighth Circuit, McAnulty v. United States, 469 F.2d 254, 256 (1972), cert. denied, 411 U.S. 949, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973) holds that where the trial judge expressly states that ......
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Farrow v. U.S.
...validity is necessary was adopted just six weeks after Lipscomb, apparently independently, by the Eighth Circuit in McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972). That case involved a § 2255 motion which asserted that the sentencing judge had given explicit consideration to three ......
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Brown v. United States
...propriety of this procedure was recognized and followed in Haynie v. United States (5th Cir. 1973) 474 F.2d 1051; McAnulty v. United States (8th Cir. 1972) 469 F.2d 254, 255; United States v. Janiec, supra, at 132, n. 14 of 464 F.2d; Rogers v. United States (5th Cir. 1972) 466 F.2d 513, cer......
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O'Shea v. United States, 73-1333.
...convictions were not a significant factor in considering the original sentence no further inquiry would be necessary. McAnulty v. United States, 8 Cir., 1972, 469 F.2d 254, cert. denied 411 U.S. 949, 93 S.Ct. 1933, 36 L.Ed.2d 411. But see United States v. Tucker, ante, 404 U.S. at 449 n. 8,......