Strader v. Troy

• Decision Date: 28 March 1978
• Docket Number: No. 77-1617,77-1617
• Parties: Franklin D. STRADER, Appellant, v. Anthony F. TROY, Attorney General of Virginia, and Commonwealth of Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1263

571 F.2d 1263

Franklin D. STRADER, Appellant, v. Anthony F. TROY, Attorney General of Virginia, and Commonwealth of Virginia, Appellees.

No. 77-1617.

United States Court of Appeals Fourth Circuit.

Argued Oct. 3, 1977.

Decided Feb. 14, 1978.

Rehearing and Rehearing En Banc Denied March 28, 1978.

Eugene W. Purdom, Greensboro, N. C. (Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief) for appellant.

Richard N. League, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of Raleigh, N. C., on brief) for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

In a pro se petition for a writ of habeas corpus, Franklin Strader, presently confined in North Carolina under a sentence of a North Carolina court, sought to effect his release on the ground that certain uncounseled Virginia convictions were permitted to enhance his North Carolina sentence. He also sought to have them removed from the consideration of the North Carolina Parole Board in its determination of his eligibility for parole. ¹ Relying upon the certificate of the sentencing state judge, the district court ruled that the Virginia convictions did not affect his North Carolina sentence. It therefore denied the writ. It also ruled that he had failed to exhaust his available state court remedies with regard to his claim against the parole board, and it dismissed his action.

Strader appeals, and we reverse. We hold that the certificate of the state trial judge fails to establish that the North Carolina sentence was not imposed in contravention of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We hold also that, to the extent there has not been exhaustion, Strader may pursue his claims about the validity of the North Carolina sentence and against the parole board in the district court without further resort to Virginia or North Carolina state courts. We remand for further proceedings.

I.

Between 1959 and 1964, Strader was convicted of numerous misdemeanor offenses in Virginia. He received jail sentences in only four instances. He was later convicted of second degree murder in North Carolina. In pronouncing sentence, the North Carolina trial judge mentioned Strader's Virginia criminal record. The North Carolina sentence, imposed March 25, 1969, was for a term of twenty-five to thirty years. Having served more than a fourth of his minimum sentence, Strader is eligible to be considered for parole. 3C N.C.G.S. § 148-58 (1975).

On December 23, 1974, Strader filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia. He challenged as unconstitutional nineteen uncounseled misdemeanor convictions secured against him by the State of Virginia, including the four which had resulted in jail sentences, and he moved that the convictions be vacated and an order be entered expunging them from his records. In response to the petition, the Attorney General for the State of Virginia filed a motion to dismiss, stating unequivocally, "petitioner has exhausted his available state remedies." ²

The district court dismissed the petition, ruling that Strader's North Carolina imprisonment had no relationship, direct or collateral, to his Virginia misdemeanor convictions, and Strader appealed. We granted a certificate of probable cause to appeal, and perceiving that the Virginia convictions, if invalid, might have an adverse effect on the likelihood that Strader would be granted parole, we remanded the case to the district court (a) directing it to transfer the case to the United States District Court for the Middle District of North Carolina, and (b) directing the latter to defer considering the case on its merits pending exhaustion of available North Carolina remedies or a showing that no effective North Carolina remedies were available. Strader v. Miller, No. 75-1923 (Order entered March 3, 1976) (unpublished).

The Virginia district court then transferred the case to the North Carolina district court. After the transfer, Strader filed a pro se pleading, alleging that he had exhausted all North Carolina remedies. He attached his pleadings in various North Carolina courts. From them, it appears that he sought to have his North Carolina sentence set aside and that he be resentenced or given other relief solely on the ground that the sentencing judge had relied on material misstatements of his prior criminal record. He did not introduce a claim that the allegedly uncounseled Virginia convictions played any part in his North Carolina sentence until his petition to the North Carolina Court of Appeals for a writ of certiorari to review the trial court's denial or relief. While North Carolina admits that Strader sought to introduce the issue at the appellate level, it argues that there has not been exhaustion in North Carolina of the claim that uncounseled Virginia convictions affected Strader's North Carolina sentence. It is perfectly clear, however, that Strader made no attempt to litigate in the North Carolina courts his claim that the parole board should be ordered not to consider his Virginia convictions in deciding his application for parole.

Before the North Carolina district court decided the instant case, the trial judge who sentenced Strader upon his conviction for second degree murder filed a certificate pursuant to 28 U.S.C. § 2245. This certificate stated that before imposing sentence, he received and was familiar with the contents of the F.B.I. report reciting Strader's allegedly uncounseled Virginia convictions but that "regardless of the F.B.I. Report, a lesser sentence would not have been imposed and to send (Strader) back for resentencing would result in the same sentence . . . and . . . would serve no useful purpose. . . ." There was an additional certification that the judge "feels there would not have been a lesser sentence (had the judge) been unaware of the prior convictions or had assumed their invalidity."

II.

The ultimate question raised by Strader's two claims for relief is the effect of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), if Strader is successful in proving that he was convicted and sentenced in Virginia at a time when he was indigent and he was neither afforded counsel nor waived his right to counsel. Tucker holds that prior convictions obtained in violation of an accused's Sixth Amendment right to counsel may not be used to enhance punishment in a subsequent prosecution. The Sixth Amendment right to counsel extends to prosecutions for misdemeanors punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and we have held that Argersinger extends retroactively to misdemeanor convictions that resulted in confinement. See Marston v. Oliver, 485 F.2d 705, 707 (4 Cir. 1973). It would follow that, if Strader's four Virginia convictions for which he was confined were invalid and were considered and affected the imposition of his North Carolina sentence, Strader is entitled to be resentenced or released. We think that it follows also that if the four Virginia convictions were invalid, the North Carolina Parole Board should not consider them in determining whether to grant Strader parole. See Williams v. Peyton, 372 F.2d 216, 220 (4 Cir. 1967). ³

We must first resolve preliminary and procedural questions relating to which judicial forum should determine the merits of Strader's claims. They are: (1) with respect to the claim of a Tucker violation in the imposition of the North Carolina sentence, whether the certificate of the sentencing judge establishes that no Tucker violation occurred, and, if not, what court should make the determination of the validity of the prior convictions; and (2) with respect to the relief sought against the parole board, what court should pass upon Strader's claim of a Virginia denial of his Sixth Amendment right to counsel.

III.

We treat first North Carolina's contention that the certificate of the North Carolina sentencing judge establishes that there was no violation of Tucker.

In Brown v. United States, 483 F.2d 116 (4 Cir. 1973), we established the procedure to be followed in a case where there is a claimed Tucker violation, and we reaffirmed and refined the test in Stepheney v. United States, 516 F.2d 7 (4 Cir. 1975). In these cases, we held that if the sentencing judge can say with certainty that the prior allegedly invalid convictions did not influence the sentence that he imposed, the case is at an end; otherwise, there must be resentencing or further proceedings to determine the validity of the prior convictions. As expressed in Stepheney :

Tucker's holding seems to require resentencing or a determination of the validity of a challenged conviction unless the sentencing judge can find and affirm that at the time of sentencing he would have imposed the same sentence if the challenged prior conviction had not been called to his attention. If he cannot say that the sentence actually imposed was uninfluenced by the prior conviction in question, Tucker requires that the defendant either be resentenced without consideration of the prior conviction or that further proceedings be permitted to determine the validity or invalidity of the prior conviction. The fact of seeming general appropriateness now is not enough if the sentencing judge cannot say that he would not have imposed a lesser sentence had he been unaware of the prior conviction or had assumed its invalidity at the time of sentencing. Stepheney v. United States, 516 F.2d at 9.

Of course Brown and Stepheney both involved federal prisoners who, by motion under 28 U.S.C. § 2255, were attacking their sentences in a federal forum. We think their holdings are applicable here to a state prisoner who attacks the validity of a state sentence in a federal forum. As we have noted earlier, 28 U.S.C. § 2245 au...