Tinsley v. U.S.
| Decision Date | 12 February 1997 |
| Docket Number | No. 95-5564,95-5564 |
| Citation | 107 F.3d 871 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Scott Lee TINSLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: NELSON, MOORE, and COLE, Circuit Judges.
Defendant Scott Lee Tinsley appeals the district court's denial of a motion under 28 U.S.C. § 2255 to vacate the sentence he received upon conviction. For the following reasons, we affirm the judgment of the district court.
Following a jury trial, Defendant Scott Tinsley was convicted in the district court on two counts of possession by a felon of firearms or ammunition in violation of 18 U.S.C. § 922(g)(1) and ten counts of making false and fictitious statements in connection with the purchase of firearms in violation of 18 U.S.C. § 922(a)(6). Tinsley was sentenced to fifteen years imprisonment and assessed a $600 fine.
At the trial on his firearms charges, Tinsley stipulated that he had been convicted on June 11, 1980 of first-degree manslaughter, a felony, and was sentenced to fifteen years imprisonment. On February 18, 1982, the Kentucky Court of Appeals vacated his conviction and remanded his case to the Jefferson Circuit Court for an evidentiary hearing to determine whether Tinsley was entitled to a new trial. 1 While awaiting the disposition of his case in the Jefferson Circuit Court, Tinsley became eligible for early release and was paroled on March 17, 1982.
On April 28, 1982, while Tinsley was on parole, the Jefferson Circuit Court held its evidentiary hearing, determined that he was not entitled to a new trial, and reinstated his felony conviction for first-degree manslaughter. At the hearing, Tinsley's attorney stated that he had informed Tinsley of the hearing, but that Tinsley waived his right to be present. No further appeal was taken from the order of reinstatement.
As required by his conditions of release, Tinsley reported to his parole officer, William Rogers, and acknowledged that it would be a violation of federal law for him, as a convicted felon, to purchase, own or possess a firearm. During the two and one-half years of Tinsley's active parole status, Rogers had 116 parole contacts with Tinsley.
Tinsley was indicted on October 25, 1983 in the Lincoln County District Court for first-degree assault of his former wife. He was also charged with being a persistent felony offender. The jury was unable to reach a verdict on the assault charge, and the persistent felony offender charge was subsequently dropped on July 19, 1984, based on representations from Tinsley's attorney, Raymond Overstreet, who stated that Tinsley's 1980 felony conviction had been overturned by the Kentucky Court of Appeals. Overstreet made these representations after Tinsley showed him a copy of the Court of Appeals judgment vacating his conviction.
On August 29, 1984, Tinsley's active parole status was reduced to inactive supervision. Tinsley states that, at this time, he resumed his former avocation as a gun dealer. Between February 23, 1987 and October 26, 1987, Tinsley signed ten forms issued by the Bureau of Alcohol, Tobacco and Firearms for the purchase of firearms on which he indicated that he had never been convicted in any court of a crime punishable by imprisonment of more than one year.
Tinsley was found guilty of disorderly conduct in the Lincoln Circuit Court on October 3, 1987 for discharging a Charter Arms .44 Special handgun within or near the city limits in a threatening manner. The Charter Arms handgun was confiscated by the court following the disorderly conduct charge. Later that month, on October 30, 1987, Tinsley was arrested for the murder of his live-in girlfriend, Tammy Marie Brier, who was found shot to death in Tinsley's house. In the course of executing a search warrant for Tinsley's home, officers seized fourteen firearms and a pad of paper detailing seventy-five firearms transactions.
Tinsley stood trial for the murder charge on May 9, 1988 in the Lincoln Circuit Court. Prior to trial, Tinsley successfully moved for suppression of the firearms and pad of paper seized during the search of his home. The court declared a mistrial on May 11, 1988, and rescheduled his trial for February 1989. State officers subsequently turned over to federal officers the firearms evidence seized from Tinsley's residence and the Charter Arms .44 caliber pistol seized from Tinsley as a result of his disorderly conduct violation. A federal indictment was returned against Tinsley on August 18, 1988 charging him with several firearms offenses, and Tinsley was subsequently convicted.
Following trial on the firearms offenses, the district judge sentenced Tinsley to fifteen years imprisonment, to be served "consecutive[ly] to any state sentence that [Tinsley] may now or hereafter have to serve." Tinsley was thereafter tried in state court for the murder of Tammy Brier. He was found guilty of murder on August 30, 1989, and sentenced to seventy-five years imprisonment. Tinsley's federal sentence is to commence after he serves his state sentence.
In a direct appeal from Tinsley's federal conviction, this court affirmed the judgment of the district court. See United States v. Tinsley, 888 F.2d 1392, 1989 WL 136097 (6th Cir. (Ky.)). On appeal of the district court's refusal to vacate his sentence, Tinsley asserts that the trial court erred by (1) imposing a federal sentence consecutively to an unimposed state sentence; (2) failing to afford him an entrapment by estoppel defense; (3) failing to consolidate Counts 1 and 2 of his indictment; and (4) improperly admitting evidence that was suppressed in a previous state court proceeding.
In order to obtain habeas relief under 28 U.S.C. § 2255, the record must reflect an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also United States v. Ross, 40 F.3d 144, 146 (7th Cir.1994) (). To obtain relief for nonconstitutional error, the record must reflect a fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process. Reed v. Farley, 114 S.Ct. 2291, 2300 (1994); Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994) (citations omitted). Where nonconstitutional issues are at stake, collateral attack should not substitute for a direct appeal. Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 116 S.Ct. 1701 (1996). Nonconstitutional errors are therefore waived for purposes of collateral review unless the error amounts to a denial of due process. Id. In addition, the petitioner must demonstrate cause for, and prejudice from, his failure to present his section 2255 claims at trial or on direct appeal. United States v. Frady, 456 U.S. 152, 167-68 (1982). We review the denial of a motion filed under 28 U.S.C. § 2255 de novo, while examining the district court's factual findings for clear error. Gall, 21 F.3d at 109 (citations omitted).
Tinsley argues that the district court violated his due process rights by sentencing him to serve his federal sentence consecutively to any state sentence that might be imposed. Because this is a pre-guidelines case in which Tinsley was charged with violating federal law on or before October 30, 1987, the applicable sentencing statute is 18 U.S.C. § 3568. The language of section 3568 provides in pertinent part: "The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory or jail for service of such sentence ... No sentence shall prescribe any other method of computing the term."
This statute must be read in conjunction with 18 U.S.C. § 4082(a), which provides:
A person convicted of an offense against the United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.
Thus, the plain language of the applicable statutes does not directly address the issue before us. The Ninth Circuit, in United States v. Eastman, 758 F.2d 1315, 1317 (9th Cir.1985), interpreted these statutes in regard to a prospective federal sentence, similar to Tinsley's, which was imposed by a district court to "run consecutive[ly] to any sentence that the defendant receives from the State of California." In Eastman, the defendant had been previously convicted in state court, but had not yet received his state sentence at the time of the federal sentencing. The Ninth Circuit determined that for the federal sentence to be enforceable, Id. at 1318. The court therefore ruled that the district court erred in exercising authority which by statute belonged exclusively to the Attorney General. 2 Id. at 1317.
The Second Circuit took the opposing view in Salley v. United States, 786 F.2d 546 (2d Cir.1986). In Salley, the district court ordered that the defendant's federal sentence was to run consecutively to any sentence the defendant received in connection with a pending robbery charge in state court. The state court subsequently ordered that the defendant's state sentence run concurrently with the...
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