Mitchell v. United States, PCA 2553.

• Decision Date: 07 November 1972
• Docket Number: No. PCA 2553.,PCA 2553.
• Citation: 350 F. Supp. 366
• Parties: William A. MITCHELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Florida

350 F. Supp. 366

William A. MITCHELL, Petitioner, v. UNITED STATES of America, Respondent.

No. PCA 2553.

United States District Court, N. D. Florida, Pensacola Division.

November 7, 1972.

Paul L. Cummings, Pensacola, Fla., for petitioner.

William H. Stafford, U. S. Atty., Pensacola, Fla., for respondent.

MEMORANDUM DECISION

ARNOW, Chief Judge.

This proceeding came before the court on a motion to vacate and set aside sentence under 28 U.S.C. § 2255. An evidentiary hearing was held at which the petitioner, represented by court-appointed counsel, was present and testified.

Petitioner contends that the sentence he received in this court on June 14, 1971 was enhanced by three prior convictions obtained when he was not represented by counsel. He relies on United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). The court considered, on sentencing, the three convictions but cannot state with certainty whether or not they enhanced the sentence and so makes no determination respecting such.

Tucker has been carefully considered; it goes a long way. The conclusion reached is that the Tucker court, in its zeal to avoid erosion of the principles of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), contributes to the erosion of sentencing philosophy. Under Tucker, as this Court understands it, a sentencing judge may not give consideration to the question whether a defendant was, in fact, guilty of offenses charged in prior convictions when those convictions have been established as invalid under Gideon. Under Gideon a conviction in violation of it is set aside on due process grounds without regard to the question of actual guilt. Yet a sentencing judge, striving to do justice to society and convicted persons,¹ must endeavor to determine from all the surrounding circumstances and background available to him whether a convicted defendant is the type of person who has learned from previous mistakes and may be placed on probation, or whether justice to society requires that defendant be imprisoned and, if so, the extent. Whether that defendant has been in fact guilty of prior criminal offenses, and the nature, kind and extent of them necessarily must be a relevant factor, though, of course, not the only one, in reaching proper decision. As is pointed out by Robert A. Dawson in his book on sentencing containing the report of the American Bar Foundation Survey of the Administration of Criminal Justice in the United States, arrests not resulting in convictions, though usually ignored in making the probation decision, are taken into consideration if they form a pattern clearly indicating the defendant is guilty of the offense for which arrested.²

When, as here, a defendant has entered a plea of guilty to the prior charges against him and does not contend or assert—as he does not here— that he was not in fact guilty of those charges, surely a strong inference arises that he was in fact guilty of them. Yet under the rationale of Tucker, these convictions, if determined to be invalid under Gideon, cannot be considered in imposing sentence.

Tucker, seeking more certain justice, nonetheless places another possible roadblock in the search in this nation for swift as well as sure justice.³

Because of the foregoing, this court concludes Tucker, and its rationale, should be construed strictly.

There does not appear, from the report of the case, presented in Tucker any question of prior record confrontation. While in Tucker the defendant had acknowledged three prior convictions, it does not appear whether he had been queried concerning their correctness; moreover, the sentencing occurred in 1953, long before Gideon. At the time of sentencing of this defendant by this court in this case, he was confronted with his prior criminal record then before the court and requested to advise the court concerning its correctness. Notwithstanding petitioner was then aware of Gideon, he advised this court the record was correct. It was not until the subsequent decision of Tucker that he asserted, for the first time before this court, that these three convictions were invalid under Gideon. The court concludes he may not now assert such invalidity.

In reaching this conclusion, this court is mindful of Hilliard v. Beto, No. 72-1869 (5th Cir. Sept. 1, 1972). But that case and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), which it followed, dealt not with imposition of sentence, but adjudication of guilt, and this case is distinguishable for that reason.

To the contrary, the reasoning of the Court of Appeals for the Fifth Circuit in cases prior to Santobello, referred to in Hilliard, is applicable here. A convicted defendant confronted with a prior criminal record by a sentencing judge, aware at the time of Gideon's requirements and stating the record is correct, should not be allowed later, and after he knows the sentence given him, to change his story and claim incorrectness of that record as not meeting Gideon requirements.

Beyond that, this case is also distinguishable from Tucker in that the three convictions petitioner complains of have not heretofore been conclusively determined to be constitutionally invalid. Their invalidity could and should not, regardless of the evidence here presented, be determined in this proceeding before this court. The proper forum in which to seek determination of invalidity of a prior conviction on Gideon principles is the court in which such prior conviction was had—and no one of the three prior convictions here challenged arose in this court.

One of the prior convictions involved a 1956 conviction in the United States District Court for the Middle District of North Carolina. The action here is a civil matter; the process of this court could not reach to those involved in that conviction, and who should be given opportunity to be heard on any determination of validity vel non of that conviction. Moreover, under 28 U.S.C. § 2255, a motion to attack a sentence must be filed in the sentencing court. Petitioner has never filed any such motion in the sentencing court; that court, and not this one, should properly be given first opportunity, in any event, to consider the matter.

While the other two convictions complained of are Florida state court convictions, and witnesses would be within the territorial reach of this court's civil process, the same reasoning in other respects applies to them. Those courts, and not this one, should be given first opportunity, respectively, to consider the validity of those convictions. Under 28 U.S.C. § 2254, this petitioner is required to exhaust all remedies available to him in the state courts before coming into federal courts; Florida's Rule 3.850, 33 F.S.A., and the habeas corpus power of the Supreme Court of Florida provide petitioner with available remedies, and he has not exhausted them.

Respecting the Bay County conviction, this petitioner heretofore filed a petition for writ of habeas corpus in the Circuit Court of Bay County, Florida, alleging he was not represented by counsel in the proceeding there. That petition was denied; rather than appealing, petitioner filed another petition for writ of habeas corpus in the Supreme Court of Florida alleging the same grounds of relief. That court denied the petition on the ground that the proper course of action was an appeal from the Circuit Court's denial of the first petition, and without prejudice to any rights petitioner had to such review in the District Court of Appeal. Petitioner took no further action in the case; clearly it cannot be said on the record here he has exhausted his state court remedy.

Petitioner has not attacked in the state courts his other state conviction, nor has he...