Mitchell v. United States, No. 72-3661.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, AINSWORTH and RONEY, Circuit
Citation482 F.2d 289
PartiesWilliam A. MITCHELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date01 November 1973
Docket NumberNo. 72-3661.

482 F.2d 289 (1973)

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

No. 72-3661.

United States Court of Appeals, Fifth Circuit.

August 16, 1973.

Rehearing and Rehearing Denied November 1, 1973.


482 F.2d 290

William Mitchell, Paul L. Cummings, Pensacola, Fla., Court-appointed, for petitioner-appellant.

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

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 1, 1973.

THORNBERRY, Circuit Judge:

Mitchell appeals from the district court's denial of his 28 U.S.C.A. § 2255 motion for vacation of sentence, 350 F. Supp. 366, in which he contended that in sentencing him originally the court had improperly taken into account prior convictions which were invalid under Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We vacate the

482 F.2d 291
denial of his motion and remand with directions

On June 14, 1971 Mitchell pleaded guilty to concealing an escaped prisoner in violation of 18 U.S.C.A. § 1072 and was sentenced to a three-year term of imprisonment, the statutory maximum authorized for that offense. In determining the sentence the district court considered1 three prior convictions of appellant: a 1955 Florida state conviction for breaking and entering, a 1956 federal conviction in North Carolina for interstate transportation of a stolen motor vehicle, and a 1958 Florida state conviction for unlawfully escaping from prison. At the hearing on his subsequent § 2255 motion to vacate the sentence below appellant sought to establish that he had been denied his Sixth Amendment rights to counsel in each of the three prior cases and argued that he was entitled to relief under the recent case of Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

Tucker, also a § 2255 case, applied to the sentencing stage of a criminal prosecution the principle established in Burgett v. Texas, 1967, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 that "a conviction obtained in violation of Gideon v. Wainwright may not be used against a person either to support guilt or to enhance punishment for another offense." Tucker had been convicted of armed bank robbery and sentenced to twenty-five years' imprisonment, the maximum term authorized for the offense. In determining his sentence the district court had considered three prior felony convictions, two in Florida and one in Louisiana. Several years after sentencing for the bank robbery conviction, the Superior Court of Alameda County, California had determined in a collateral proceeding that one of the prior Florida convictions and the prior Louisiana conviction were invalid because Tucker had not been accorded his Sixth Amendment rights to counsel in those two prosecutions. Tucker attacked his bank robbery sentence in a § 2255 motion, arguing that the sentencing judge's consideration of constitutionally invalid convictions in arriving at his sentence rendered it invalid. The district court denied the motion originally, 299 F.Supp. 1376, but the Court of Appeals for the Ninth Circuit agreed with Tucker and remanded for resentencing "without consideration of any prior convictions which are invalid under Gideon v. Wainwright." 431 F.2d 1292. The Supreme Court affirmed. It viewed the critical issue as "whether the sentence in the 1953 bank robbery case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained." United States v. Tucker, supra, 404 U.S. at 448, 92 S.Ct. at 592. In answering in the affirmative, it reasoned that "if the trial judge in the bank robbery case in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding." Id. A showing of such constitutional infirmity fatally weakens for purposes of sentencing the reliability of a purported determination of guilt beyond a reasonable doubt, for denial of appellant's right to counsel

482 F.2d 292
substantially affects the integrity of the fact-finding process at a trial as well as the reliability of a conviction upon a plea of guilty. See Linkletter v. Walker, 1965, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743 n. 20, 14 L.Ed.2d 601; Rice v. Olson, 1945, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367

Appellant Mitchell contended below, as he does on this appeal, that the Tucker holding is directly applicable to his case. The district court rejected this contention after an evidentiary hearing on three distinct grounds, each one of which appellant contests and the Government defends. The three grounds were: (1) that Mitchell had waived his right to attack the prior convictions by admitting the correctness of his criminal record as it was presented to the district court at the time of sentencing in 1971; (2) that the Gideon-based attack on the prior convictions must be made initially in the federal court or in the courts of the state where the prior convictions were obtained; and (3) that the evidence at the § 2255 hearing was "clearly insufficient to establish conclusively the invalidity of the prior convictions."

I. Waiver

While it is true that a defendant may lose his right to file a § 2255 motion on a given ground by consciously and deliberately electing not to raise that ground at the time of conviction or on direct appeal, see Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Brown v. Allen, 1952, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469; Brown v. United States, 5th Cir. 1973, 480 F.2d 1036; Larson v. United States, 5th Cir. 1960, 275 F.2d 673, we cannot agree with the district court that Mitchell waived his right to attack the validity of the prior convictions in this case. We note first that by admitting the correctness of his criminal record at the time of sentencing Mitchell did not admit that he was in fact guilty of the three prior offenses charged, but only confirmed through his counsel that the record of convictions and prison disciplinary proceedings presented to the court was substantially correct. Neither Mitchell's statements nor those of his attorney at sentencing can fairly be construed as more than admissions that Mitchell had been previously convicted of three crimes, as reflected on his record. They were not admissions of guilt and did not constitute an express waiver of the right to attack the constitutional validity of the prior convictions. Further, the record does not suggest, nor can we imagine, any tactical or strategical reason for deliberately failing to challenge the prior conviction at sentencing. Of importance in determining whether a waiver or intentional by-pass may be inferred from the record is the fact that United States v. Tucker, supra, the case on which Mitchell's § 2255 motion is primarily based, had not been decided at the time of his sentencing; it was decided six months later. While Mitchell's pre-1971 litigation in Florida courts in pursuit of post-conviction remedies shows that he was aware of the possibility of challenging the prior convictions on Sixth Amendment right-to-counsel grounds before he was sentenced in 1971, the significance of such a challenge for the sentence Mitchell then faced was not entirely clear before Tucker was decided. Under these circumstances, we hold the record fails to demonstrate a clear waiver, express or implied, or an intentional by-passing of an opportunity to assert a known right. Thus, appellant's § 2255 attack on the prior convictions was not barred by waiver.

II. Exhaustion

The district court's second basis for denying Mitchell's motion to vacate sentence was that Mitchell had not travelled all available avenues of attack on the three prior convictions in the courts where they were entered. Under this view, in order to mount a successful Tucker attack on the 1971 sentence, appellant was obliged first to exhaust the Florida state remedies still available to attack the two Florida convictions and

482 F.2d 293
to return to the North Carolina federal court to attempt to have the 1956 federal conviction there adjudicated invalid.2 Thus, the district court fashioned a rule analogous to the exhaustion-of-state-remedies doctrine which normally applies to direct habeas corpus challenges to state convictions and to the parallel rule that a habeas attack on a federal conviction must normally be preceeded by a § 2255 motion in the court of conviction

We do not agree that any such exhaustion requirement applies when the conviction whose validity is at issue is a prior one, not the very conviction which authorized the sentence sought to be vacated in the § 2255 motion. The Tucker opinion itself contains no requirement that a defendant return to the court or state of a prior conviction to secure a ruling of invalidity to support his § 2255 motion nor any hint that Tucker had exhausted Louisiana and Florida procedures for attacking any of the three convictions challenged in that case.3 In Tucker the movant had secured an adjudication in a California court that a prior Louisiana conviction and a prior Florida conviction were invalid, and this ruling, which was not contested by the Government, was considered adequate to support the motion. The constitutional validity of Tucker's third conviction had not been determined before he filed his § 2255 motion. Since the Supreme Court affirmed the Ninth Circuit's order remanding the case for resentencing "without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799," and did not suggest that the determination of the third conviction's validity should be made...

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40 practice notes
  • Tisnado v. U.S., No. 75-1066
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 3, 1976
    ...v. Walters, 526 F.2d 359, 361-62 (3d Cir. 1975); Crovedi v. United States, 517 F.2d 541, 546 (7th Cir. 1975); Mitchell v. United States, 482 F.2d 289, 293 (5th Cir. 1973). But see, e. g., Brown v. United States, 483 F.2d 116, 118-19 (4th Cir. 1973); Young v. United States, 485 F.2d 292, 294......
  • Wilson v. U.S., No. 74-1124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 1974
    ...862; Jefferson v. United States (1974) 488 F.2d 391; Russo v. United States (1972) 470 F.2d 1357. But see Mitchell v. United States (1973) 482 F.2d 289, 297; Franchi v. United States (1972) 464 F.2d 1035, 1035-36; Davis v. Wainwright (1972) 462 F.2d 1354, 3 In United States v. Dorman (1974)......
  • U.S. v. Clark, 020800, No. 98-20550
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 8, 2000
    ...and Louisiana convictions obtained in violation of Gideon v. Wainwright, 83 S.Ct. 792 (1963). We pointed out in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), that it was evident in Tucker that the prior convictions had not been set aside, either by the courts of the respe......
  • Farrow v. U.S., No. 74-2429
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1978
    ...initial resort to the state courts of conviction was rejected by the Fifth Circuit just two weeks later in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), the court there The Tucker opinion itself contains no requirement that a defendant return to the court or state of a pr......
  • Request a trial to view additional results
40 cases
  • Tisnado v. U.S., No. 75-1066
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 3, 1976
    ...v. Walters, 526 F.2d 359, 361-62 (3d Cir. 1975); Crovedi v. United States, 517 F.2d 541, 546 (7th Cir. 1975); Mitchell v. United States, 482 F.2d 289, 293 (5th Cir. 1973). But see, e. g., Brown v. United States, 483 F.2d 116, 118-19 (4th Cir. 1973); Young v. United States, 485 F.2d 292, 294......
  • Wilson v. U.S., No. 74-1124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 1974
    ...862; Jefferson v. United States (1974) 488 F.2d 391; Russo v. United States (1972) 470 F.2d 1357. But see Mitchell v. United States (1973) 482 F.2d 289, 297; Franchi v. United States (1972) 464 F.2d 1035, 1035-36; Davis v. Wainwright (1972) 462 F.2d 1354, 3 In United States v. Dorman (1974)......
  • U.S. v. Clark, 020800, No. 98-20550
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 8, 2000
    ...and Louisiana convictions obtained in violation of Gideon v. Wainwright, 83 S.Ct. 792 (1963). We pointed out in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), that it was evident in Tucker that the prior convictions had not been set aside, either by the courts of the respe......
  • Farrow v. U.S., No. 74-2429
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1978
    ...initial resort to the state courts of conviction was rejected by the Fifth Circuit just two weeks later in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), the court there The Tucker opinion itself contains no requirement that a defendant return to the court or state of a pr......
  • Request a trial to view additional results

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