Sanders v. U.S., 1:97 CV 2000 (1:93 CR 184).
| Citation | 8 F.Supp.2d 674 |
| Decision Date | 10 April 1998 |
| Docket Number | No. 1:97 CV 2000 (1:93 CR 184).,1:97 CV 2000 (1:93 CR 184). |
| Parties | Lummie SANDERS, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Alan Curtis Rossman, Schreiber, Rossman & Assoc., Cleveland, OH, for Petitioner.
Joseph P. Schmitz, Office of the U.S. Attorney, Cleveland, OH, for Respondent.
Before the Court is petitioner's motion, pursuant to 28 U.S.C. § 2255, to vacate and set aside his sentence on the ground that one of the state convictions used to enhance his federal sentence under the Armed Career Criminal Act was improperly considered. For the reasons discussed below, petitioner's motion is granted.
On June 9, 1993, Sanders was indicted on three counts of firearms violations. Counts One and Three of the indictment charged violations of 18 U.S.C. § 922(g)(1) (felon in possession) and Count Two charged violation of 18 U.S.C. § 922(a)(6) (). The government gave notice of its intention to seek an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), listing as the predicate offenses three prior state convictions: (1) a 1986 conviction for involuntary manslaughter; (2) a 1972 conviction for assault with a dangerous weapon; and (3) a 1968 conviction for robbery.1 At his arraignment on June 28, 1993, Sanders entered pleas of not guilty on all three counts and was released on bail.
The case proceeded to trial on August 16, 1993, with the jury finding Sanders guilty on all three counts. After the case was referred for a presentence report, Sanders challenged the constitutional validity of both the 1968 robbery conviction and the 1972 conviction for assault with a dangerous weapon. This Court rejected the challenge to the 1968 conviction, See Order, November 22, 1993 (Docket No. 45, p. 2),2 but determined that the 1972 conviction was constitutionally invalid because of a defective jury instruction that was not harmless error. See Order, November 29, 1993 (Docket No. 47). Sanders was sentenced to 37 months imprisonment with two years of supervised release. See Minutes of Proceedings (Docket No. 49).
Sanders appealed his conviction and sentence and the government cross-appealed the Court's refusal to sentence under the ACCA. In an unpublished opinion, the Sixth Circuit affirmed the convictions on Counts One and Two, but vacated the conviction on Count Three as multiplicitous. United States v. Sanders, Nos. 93-4322, 94-3021, 1994 WL 714377 (6th Cir. Dec.22, 1994). On the government's cross-appeal, the Court of Appeals vacated the sentence on the strength of the intervening decision of the United States Supreme Court in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and held that this Court "should have counted the 1972 assault conviction in determining whether to sentence Sanders under the ACCA." 1994 WL 714377, at *2. The Court of Appeals, however, remanded the case for a ruling on "whether involuntary manslaughter is a violent felony for purposes of the [ACCA,]" Id. at *3, and for resentencing consistent with its opinion.
On remand, this Court determined that involuntary manslaughter as defined by Ohio law is a violent felony for purposes of the ACCA. See Order, May 10, 1995 (Docket No. 84). The Court also rejected Sanders' challenge to the constitutional validity of 18 U.S.C. § 922(g). See Order, June 22, 1995 (Docket No. 83). On July 3, 1995, Sanders was resentenced under the ACCA to a term of imprisonment of 188 months. Sanders filed his notice of appeal on the same day. The Sixth Circuit affirmed with respect to the rulings affecting sentencing under the ACCA. United States v. Sanders, 97 F.3d 856 (6th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 995, 136 L.Ed.2d 875 (1997). However, the Court of Appeals remanded for resentencing having concluded, contrary to this Court's determination, that there was authority under the U.S. Sentencing Guidelines to depart downward from criminal history category IV to category III. Upon remand, this Court departed downward under § 4A1.3 and, on July 9, 1997, resentenced Sanders to a term of imprisonment of 180 months.3 Sanders is presently in the custody of the Federal Bureau of Prisons. He has filed the instant motion under Section 2255 represented by counsel.
In the present motion, Sanders again attacks his 1972 conviction for assault with a deadly weapon and argues that trial counsel's failure to raise an objection to the jury instructions amounted to ineffective assistance of counsel in violation of his Sixth Amendment rights.4
The threshold question is whether Sanders can attack a prior state court conviction whose sentence has expired by way of a Section 2255 motion challenging the federal sentence he is currently serving, which sentence was enhanced because of the prior state conviction. The Sixth Circuit has not addressed this question in any published opinion.
The starting point for the discussion must be Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). The Custis Court held
that § 924(e) does not permit Custis to use the federal sentencing forum to gain review of his state convictions. Congress did not prescribe and the Constitution does not require such delay and protraction of the federal sentencing process.
511 U.S. at 497, 114 S.Ct. 1732. This language makes clear that the sentencing proceeding is not the place for a challenge to a state conviction which is being used to enhance a federal sentence.5 However, contrary to the government's position here, Custis does not preclude collateral attacks by way of other kinds of proceedings,6 such as habeas corpus proceedings or proceedings on motions under 28 U.S.C. § 2255.7
This is the position taken by the Third Circuit in Young v. Vaughn, 83 F.3d 72 (3d Cir.), cert. denied sub nom Abraham v. Young, ___ U.S. ___, 117 S.Ct. 333, 136 L.Ed.2d 245 (1996), an appeal from the dismissal of a Section 2254 petition challenging a conviction whose sentence had already expired. The district court had found the petitioner not "in custody" and dismissed the petition for lack of subject matter jurisdiction. The Court of Appeals stated that "since Young was serving another sentence when he filed his petition — a sentence that is a collateral result of his expired conviction — the district court should have construed his petition as challenging that sentence rather than his expired conviction." Id. at 73. From that perspective, Young was "in custody." Relying on Clark v. Pennsylvania, 892 F.2d 1142 (3d Cir.1989), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990),8 the Third Circuit held that
a federal habeas petitioner in custody under a sentence enhanced by a prior conviction may attack that prior conviction, even if he is no longer in custody for it. However, he may do so only in the context of a challenge to the enhanced sentence for which he is in custody.
83 F.3d at 77-78. The Young court rejected the state's argument that Custis precluded such an attack, finding instead that Custis only prohibited this type of challenge "during sentencing proceedings." Id. at 77. The court noted that "[i]f a general principle is to be derived from Custis, it is the much narrower one that `federal sentencing hearings are not the proper forum for addressing the validity of prior convictions.'" Id. (citations omitted).
The Young court also noted as follows:
Every court of appeals to confront the question allows a habeas petitioner to challenge a conviction whose sentence has expired if he is currently incarcerated as a result of that conviction, or if it was used to enhance a sentence presently being served. Most share our approach in Clark, interpreting Maleng as requiring the petitioner to do so by attacking the current sentence. See, e.g., Tredway v. Farley, 35 F.3d 288 (7th Cir.1994); Brock v. Weston, 31 F.3d 887 (9th Cir.1994); Collins v. Hesse, 957 F.2d 746 (10th Cir.1992); Crank v. Duckworth, 905 F.2d 1090 (7th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991); Gamble v. Parsons, 898 F.2d 117 (10th Cir.), cert. denied, 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 172 (1990); Taylor v. Armontrout, 877 F.2d 726 (8th Cir.1989); Feldman v. Perrill, 902 F.2d 1445 (9th Cir.1990).
83 F.3d at 78 (footnote omitted). Of the cited cases, only Tredway and Brock were decided after Custis. However, the result in Custis "does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction." Custis, 511 U.S. at 512 (Souter, J., dissenting).
As already noted, the Sixth Circuit has not addressed this question in any published opinion. However, it has spoken in two unpublished opinions.9 In Webb v. Parker, No 94-5650, 1995 WL 39528 (6th Cir. Feb.1, 1995), the court reversed the district court's dismissal of a Section 2254 petition for failure to meet the "in custody" requirements. The court stated:
Other circuits that have addressed the issue have uniformly held that where "a person currently serving a sentence that was enhanced on the basis of a prior conviction is still in custody, he may challenge the enhancing conviction as constitutionally invalid even though that prior conviction's original custodial term has expired." Smith v. Farley, 25 F.3d 1363, 1365-66 (7th Cir.1994) (citing Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990) ...). See also Collins v. Hesse, 957 F.2d 746, 747-48 (10th Cir.1992) ().
Id. at *2 (footnote added).
In another unpublished opinion, the Sixth Circuit has also noted that
Maleng [v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989)] does hold...
To continue reading
Request your trial
-
U.S. v. Sanders
...conviction. On April 10, 1998, the district court agreed with Sanders and vacated the fifteen year sentence. Sanders v. United States, 8 F.Supp.2d 674 (N.D.Ohio 1998). The court then resentenced Sanders to the original term of imprisonment of thirty-seven months and ordered him released fro......