United States v. Walters, 74-2101.

• Decision Date: 12 November 1975
• Docket Number: No. 74-2101.,74-2101.
• Parties: UNITED STATES of America ex rel. James Morris FLETCHER, Appellant, v. Gilbert A. WALTERS, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

526 F.2d 359

UNITED STATES of America ex rel. James Morris FLETCHER, Appellant, v. Gilbert A. WALTERS, Appellee.

No. 74-2101.

United States Court of Appeals, Third Circuit.

Argued September 5, 1975.

Decided November 12, 1975.

Lee H. Goldberg, Mark S. Frank, Pittsburgh, Pa., for appellant.

W. Bertram Waychoff, James A. Caldwell, Waynesburg, Pa., for appellee.

Before VAN DUSEN, ADAMS and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Fletcher appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1970).¹ The relator is currently in custody on a sentence of 8 1/2 to 19 years imprisonment imposed on September 17, 1966, following his plea of guilty in the Court of Quarter Sessions, Greene County, Pennsylvania, to three counts of receiving stolen goods² and to one count of prison breach.³ While no direct appeal was taken from the judgment of sentence, Fletcher, without assistance of counsel, did seek relief from the judgment under Pennsylvania's Post Conviction Hearing Act, 19 P.S. §§ 1180-1 to 1180-14 (Supp.1975-1976). The Court of Common Pleas of Greene County denied relief, and the denial was affirmed. Commonwealth of Pennsylvania ex rel. Fletcher v. Maroney, 210 Pa.Super. 96, 232 A.2d 206 (1967). The Pennsylvania Supreme Court denied allocatur, whereupon Fletcher filed the instant petition.⁴

In his petition for habeas corpus, Fletcher contended that in imposing sentence the state court judge had improperly considered convictions which, because uncounselled, were constitutionally invalid. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In 1940 and 1942 the relator had entered pleas of guilty in the Superior Court of Watauga County, North Carolina to charges of breaking and entering, larceny and resisting an officer.⁵ While he had never challenged the validity of the North Carolina convictions in the North Carolina courts, he asserted in the instant petition that he had not been represented by counsel in these cases and that he had not intelligently waived his right to counsel.⁶ The Commonwealth of Pennsylvania admitted that Fletcher had been without counsel in the North Carolina cases,⁷ but denied that these convictions had influenced the sentencing judge. Answer to Rule at ¶ 3(g).

The district court referred Fletcher's petition for habeas corpus to a United States magistrate in accordance with 28 U.S.C. § 636(b)(3) (1970). In her report and recommendations, the magistrate concluded that the petition should be dismissed because of Fletcher's failure to exhaust state remedies by challenging the North Carolina guilty pleas in the North Carolina state courts. On May 30, 1974, the district court entered an order adopting the recommendations of the magistrate and dismissing the petition. We granted a certificate of probable cause on October 25, 1974. For the reasons set forth below, we vacate the district court's order and remand with directions.

I.

It is well settled that a conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may not be considered by a sentencing judge in imposing punishment in a subsequent criminal case. United States v. Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); see United States v. Radowitz, 507 F.2d 109, 112 (3d Cir. 1974). In Tucker, the Supreme Court ordered a remand for resentencing because in imposing sentence a federal district court had considered prior state convictions that were invalid under Gideon.⁸ Resentencing was required, reasoned the Court, because if the district court had been aware of the constitutional infirmity of the prior convictions, Tucker's background would have "appeared in a dramatically different light" and then, faced with a less blemished record, the district court might have imposed a different sentence. 404 U.S. at 447-48, 92 S.Ct. at 592. As the Tucker Court stated, "`to permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . is to erode the principle of that case.'" Id. at 449, 92 S.Ct. at 593, quoting Burgett v. Texas, supra, 389 U.S. at 115, 88 S.Ct. 258.⁹

Fletcher contended below, as he does on appeal, that Tucker controls the disposition of his petition. The district court, in adopting the magistrate's report, found Tucker distinguishable from the present case because in Tucker the unconstitutionality of the prior convictions had been fully determined by a state court. The lower court, in accepting the magistrate's recommendations, held that a petitioner seeking to assail a sentence under Tucker by way of a collateral proceeding in federal court must first attempt to have the prior convictions invalidated in the state courts in which the convictions were obtained. Accord, Young v. 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); Brown v. United States, 483 F.2d 116, 118 (4th Cir. 1973). Since Fletcher had not challenged the validity of the convictions in North Carolina, reasoned the lower court, he had failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) (1970).

We do not agree that the exhaustion requirement of section 2254(b), or any rule analogous to that requirement, applies to prevent the federal district court from considering the validity of the 1940 and 1942 North Carolina convictions. Mitchell v. United States, 482 F.2d 289, 293 (5th Cir. 1973).¹⁰ The exhaustion of state remedies requirement applies only to the district court's consideration of the validity of the sentence from which Fletcher seeks section 2254 relief, namely, the Pennsylvania sentence. Since Fletcher has travelled all available avenues of attack on the Pennsylvania sentence, see note 4 supra, he has complied with section 2254(b).

The Tucker decision itself does not contain a requirement that a habeas corpus petitioner must return to the state of a prior conviction to secure a ruling on its validity before he can petition a federal court for relief from a subsequent sentence which was enhanced by the prior conviction. In Tucker, only two of the three convictions considered by the federal sentencing judge had been determined invalid by a state court. See note 8 supra. Yet, the Supreme Court affirmed a remand for resentencing "without consideration of any prior convictions which are invalid under Gideon" and did not suggest that the validity of the third conviction be determined by a state court before resentencing.¹¹

The Supreme Court's decision in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), also supports our conclusion that Fletcher need not return to North Carolina to attack the validity of the 1940 and 1942 convictions before seeking section 2254 relief from the Pennsylvania sentence. In Loper, the defendant had been impeached at a trial in a Texas state court by prior convictions in Mississippi and Tennessee. Thereafter, asserting that the Mississippi and Tennessee convictions were invalid under Gideon, he sought habeas corpus relief in a federal court in Texas. Relying on Tucker and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court reversed the district court's denial of habeas relief, even though no state court had determined the constitutionality of the prior convictions. Nowhere in the opinion did the Court suggest that the defendant be required to return to Mississippi or Tennessee to obtain a ruling on the validity of the convictions before the federal court could consider the constitutionality of the Texas trial. To the contrary, the Court's disposition of the case suggests that on remand, the federal district court would be under a duty to determine whether the prior state convictions were infirm under Gideon. See 405 U.S. at 479 n. 6, 92 S.Ct. 1014; 405 U.S. at 485, 92 S.Ct. 1014 (White, J., concurring).

We recognize that there exists a split among the Circuits on whether a petitioner seeking to challenge a sentence under Tucker by way of a collateral proceeding in federal court must first attempt to procure a ruling on the constitutionality of the prior convictions in the state courts in which the convictions were obtained.¹² In our opinion, however, the better view is that such a petitioner not be required to travel such a circuitous route. To demand that Fletcher return to North Carolina to challenge the 1940 and 1942 convictions would be to erect a high barrier to the effective vindication of his constitutional rights. See Mitchell v. United States, 482 F.2d 289, 293 (5th Cir. 1973). "Exhaustion of the movant, rather than exhaustion of other collateral attack possibilities, would be the likely result." Id. at 294.

II.

We face two additional issues: 1) whether Fletcher's 1940 and 1942 North Carolina convictions were violative of Gideon; and 2) whether the sentencing judge considered these North Carolina convictions in imposing sentence.¹³

Under Gideon, which is retroactive,¹⁴ the 1940 and 1942 North Carolina convictions are valid only if Fletcher was represented by counsel or competently waived his right to counsel. 372 U.S. at 340, 83 S.Ct. 792.¹⁵ The Commonwealth admits that Fletcher was unrepresented by counsel in the North Carolina cases but suggests that appellant might have waived his right to counsel.

When a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds and the record shows that he was not represented by counsel or is silent as to representation of counsel, the government has the burden to prove affirmatively that the defendant waived his right to counsel. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Carnley v....