Ryan v. United States

Decision Date03 October 1973
Docket NumberNo. 73-1305.,73-1305.
Citation485 F.2d 295
PartiesRobert John RYAN, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Robert John Ryan, pro se.

Robert G. Renner, U. S. Atty., and Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and ROSS, Circuit Judges.

PER CURIAM.

Robert John Ryan appeals the dismissal of his 28 U.S.C. § 2255 motion. The motion alleged that prior constitutionally invalid sentences were used to enhance his sentence rendered after a conviction for violating the provisions of 18 U.S.C. § 2113(a) and (d). We affirm.

Ryan was found guilty, by a jury, of violating the provisions of 18 U.S.C. § 2113(a) and (d) and sentenced to less than the maximum allowable sentence. Ryan then filed a motion for reduction of the sentence, which was denied. Ryan's conviction was affirmed by this Court. Ryan v. United States, 71-1501 (8th Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 163, 34 L.Ed.2d 115 (1972). Ryan then brought the present § 2255 motion before the same judge who sentenced him with respect to the § 2113(a) and (d) conviction. When the judge dismissed the motion he said:

"Even were all prior convictions to be disregarded and eradicated the court would still not put defendant on probation but would meet and impose the same sentence considering the seriousness and character of the crime. . . ."

Ryan asserts that various state and federal convictions are invalid and were used to enhance the sentence involved here. Essentially Ryan relies upon the Supreme Court's decision in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In Tucker the Court ruled that where constitutionally invalid state sentences may have influenced a later federal sentence, the case must be remanded to the trial court for reconsideration of the sentence. In Tucker the state convictions had been determined to be invalid by a state court.

We do not believe that remand would be appropriate in this case despite United States v. Tucker, supra, for two reasons: First, the sentencing judge has made an express statement that the sentence imposed was appropriate regardless of the alleged invalidity of the prior convictions. Hence we believe that remand would be fruitless. Compare James v. United States, 476 F.2d 936 (8th Cir. 1973) and Taylor v. United States, 472 F.2d 1178 (8th Cir. 1973) with Jorgenson v. United States, 477 F. 2d 905 (8th Cir. 1973) and McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972).

Secondly, it appears that the state convictions which Ryan claims are void have not been challenged in state court. As we have stated in a similar case, Young v. United States, 485 F.2d 292 (8th Cir. 1973), a § 2255 motion of this type should not be used to obviate the generally recognized principle of exhaustion of state remedies.1

For the reasons hereinbefore expressed, the dismissal is affirmed.

1 The federal conviction for violation of the Dyer Act is challenged also, but in that case the question...

To continue reading

Request your trial
9 cases
  • Wilson v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 29, 1974
    ...of prior convictions, a remand for resentencing would be pointless. Accord Jorgenson v. United States, 477 F.2d 905 (1973); Ryan v. United States, 485 F.2d 295 (1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1568, 39 L.Ed.2d 876. See Taylor v. United States, 472 F.2d 1178 (1973). There the cou......
  • Johnson v. Wyrick
    • United States
    • U.S. District Court — Western District of Missouri
    • August 12, 1974
    ...attempt at exhaustion of state remedies." See also, Brown v. United States, 483 F.2d 116, 118 (4th Cir. 1973); Ryan v. United States, 485 F.2d 295, 296 (8th Cir. 1973). The exhaustion question present in the case at bar with respect to the above-noted precise issue is distinguishable from t......
  • Farrow v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 31, 1978
    ...accepted by the Eighth Circuit in two cases decided the same day, Young v. United States, 485 F.2d 292, 294 (1973), and Ryan v. United States, 485 F.2d 295, 296 (1973). But the Eighth Circuit's subsequent decision in Stead v. Link, 540 F.2d 923, 925-26 (1976), requiring exhaustion only unde......
  • Stead v. Link
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 12, 1976
    ...United States, 485 F.2d 292, 294 (8th Cir. 1973), cert. denied, 416 U.S. 971, 94 S.Ct. 1995, 40 L.Ed.2d 560 (1974); Ryan v. United States, 485 F.2d 295, 296 (8th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1568, 39 L.Ed.2d 876 (1974). Comity requires that a state court which rendered t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT