US v. Hardy, Cr. No. 91-10180-K.

• Decision Date: 10 August 1993
• Docket Number: Cr. No. 91-10180-K.
• Citation: 829 F. Supp. 478
• Parties: UNITED STATES of America, v. Frederick HARDY, Defendant.
• Court: U.S. District Court — District of Massachusetts

829 F. Supp. 478

UNITED STATES of America, v. Frederick HARDY, Defendant.

Cr. No. 91-10180-K.

United States District Court, D. Massachusetts.

August 10, 1993.

COPYRIGHT MATERIAL OMITTED

Stanley Greenidge, Fed. Defender Office, Boston, MA, for defendant.

Michael J. Pelgro, U.S. Attys. Office, Crim. Major Crimes Div., Boston, MA, for U.S.

MEMORANDUM AND ORDER

KEETON, District Judge.

I. Introduction.^*

On November 14, 1991, defendant was found guilty of two violations of 18 U.S.C. § 922(g)(1) (convicted felon in possession of a firearm and ammunition) and one violation of 26 U.S.C. § 5861(d) (possession of an unregistered firearm).

On January 23, 1992, the court conducted a sentencing hearing. The United States Probation Department, in its Presentence Report ("PSR"), concluded that defendant qualified for an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Under the ACCA, a defendant with three previous convictions for "a violent felony or a serious drug offense, or both" receives a mandatory minimum term of imprisonment of 15 years. 18 U.S.C. § 924(e)(1). The Department of Probation's recommendation was based on three "violent felony" convictions and one "serious drug offense" conviction. The convictions were:

1. A 1985 conviction for assault and battery with a dangerous weapon (a shod foot) on Heavenly Mitchell. (The "1985 conviction.")

2. A 1987 conviction for assault and battery on Heavenly Mitchell and Leila Ray. (The "1987 conviction.")

3. A 1989 conviction for assault and battery on Kenneth Tanguay — a police officer. (The "1989 conviction.")

4. A 1991 conviction for possession of a Class B controlled substance with intent to distribute. (The "1991 conviction.")

Under the ACCA enhancement, the Probation Department concluded that the applicable sentencing range was 262-327 months. After hearing, the court sentenced defendant to 262 months incarceration followed by 60 months supervised release.

Defendant appealed his sentence. On August 13, 1992, this court, taking the view that the appeal had not necessarily terminated this court's jurisdiction and responsibility, under First Circuit precedent, to consider defendant's motion to reconsider his sentencing, allowed the motion and set a schedule for further submissions.

On November 5, 1992, the First Circuit retained jurisdiction over the appeal but remanded the case "for further proceedings in view of United States v. Paleo, 967 F.2d 7 (1st Cir.1992)." (Docket No. 108). Paleo was decided several months after the original sentencing hearing.

Defendant contends that application of the section 924(e) sentencing enhancement was inappropriate. In support of this contention, defendant challenges the constitutionality of each of the four state court convictions listed above. In addition, defendant contends that the 1987 conviction cannot be considered a "violent felony" conviction, 18 U.S.C. § 924(e) (emphasis added), on the ground that the court records do not demonstrate that the conviction was for a violent (as opposed to a nonviolent) assault and battery.

II. Review of the Constitutionality of Defendant's Past Convictions.

A. Paleo.

In Paleo, the First Circuit reviewed a district court's refusal to consider three past convictions for purposes of sentence enhancement under section 924(e) on the ground that those convictions were not constitutionally obtained. The district court determined that two convictions resulted from guilty pleas that were "the product" of inadequate colloquies and another conviction included constitutionally infirm resentencing proceedings. 967 F.2d at 11; 738 F.Supp. 611 (D.Mass. 1990). As a result, the district court determined that the defendant in Paleo did not qualify for an ACCA enhancement. The government appealed the sentence. The court held that "a defendant may challenge, in a federal sentencing proceeding, the constitutionality of past convictions, offered to increase the length of a present sentence." 967 F.2d at 13.

In Paleo, the court did not base its decision on any constitutional right to challenge past state convictions in a federal sentencing hearing. Rather, the court interpreted the statute (ACCA) as permitting, in a federal sentencing hearing, a challenge to the use of an allegedly constitutionally infirm state conviction as a factor in a federal sentencing decision.

See Paleo, 967 F.2d at 14 (Memorandum and Order denying petition for rehearing), withdrawn and issuing new Memorandum and Order to same effect, No. 90-1774, Order of the Court and Memorandum and Order (Sept. 14, 1992). See also United States v. Isaacs, No. 92-2068, slip op. at 10-16 1993 WL 210537 (June 22, 1993) (constitution requires sentencing court to entertain challenges only to past convictions that are constitutionally infirm on their face).

Accordingly, to the extent that the parties rely on cases decided in a context other than statutory interpretation of section 924(e), those cases are of limited assistance in resolving the issues in the present case.

See Paleo, 967 F.2d at 14 (distinguishing interpretation of the sentencing guidelines, U.S.S.G. § 4A1.2, from interpretation of section 924(e)). Compare United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d 592 (1972) (defendant may raise constitutional challenge to past conviction, based on violation of right to counsel, used to enhance sentence); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) with Lewis v. United States, 445 U.S. 55, 63-65, 100 S.Ct. 915, 919-21, 63 L.Ed.2d 198 (1980) (defendant may not raise constitutional challenge to past conviction, based on violation of right to counsel, used as predicate conviction for charge of being a felon in possession of a firearm).

In Paleo, the court specifically stated the procedure and burden of proof for a constitutional attack on a past conviction to be used for enhancement under the ACCA.

Should the defendant wish to challenge the validity of a past conviction evidenced by a certified copy of a court record of conviction, or a presentence report's account of a past conviction, that does not on its face demonstrate the unconstitutionality of the conviction, he must say that he wishes to do so, explain the constitutional defect, and convince the sentencing court that the conviction was indeed obtained in violation of the federal Constitution.

967 F.2d at 13.

Though explaining this requirement of proof, the court did not undertake in Paleo to decide other issues bearing on the use of previous convictions in federal sentencing proceedings. Rather, the court observed that

it may become necessary to decide, for example, what kinds of constitutional infirmity make a past conviction unusable in the sentencing context, when a constitutional error is harmless, when a defendant has waived a constitutional objection, and when (or to what extent) a federal sentencing court must accept some other court's determination of these matters.

Id. The court also declared that

in answering such questions, the habeas analogy may ... prove helpful, for similar issues arise in federal habeas corpus proceedings. It may well be the case (although we need not, and do not, now hold) that (with the exception of exhaustion requirements) the answers courts have found satisfactory in the habeas context will also prove satisfactory in this one.

Id.

B. Standard of review for defendant's constitutional challenges.

For each of his convictions, defendant challenges the procedures in the Massachusetts courts by which he waived constitutional rights. Before considering each of his convictions, I first turn to an overview of the standard for reviewing his waiver of constitutional rights.

1. Federal constitutional requirements.

In Paleo, the court addressed only constitutional attacks based on the federal Constitution. See Paleo, 967 F.2d at 13 (defendant must "convince the sentencing court that the conviction was indeed obtained in violation of the federal Constitution"). Defendant cites no authority, state or federal, directly ruling on permissibility under section 924(e) of disregarding a previous state conviction of record (that is, one that has not actually been set aside by a state court) on grounds other than violation of federal constitutional rights. In attacking his past convictions, defendant here relies primarily on Massachusetts case law. Accordingly, the cases cited by defendant are useful only by analogy and for their persuasive value and not as precedent binding on this court in relation to federal constitutional rights.

Under the federal Constitution, a guilty plea is valid only if it is "intelligent and voluntary." Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). See also Parke v. Raley, ___ U.S. ___, ___, 113 S.Ct. 517, 520, 121 L.Ed.2d 391 (1992). For a plea to be voluntary and intelligent,

it must be "an intentional relinquishment or abandonment of a known right or privilege." Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.

McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). A plea does not meet this standard if the defendant either (1) does not "understand the nature of the constitutional protections that he is waiving," or (2) "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976).

The law governing whether a plea is intelligent and voluntary is federal law.

See Brewer v. Williams, 430 U.S. 387, 403-404, 97 S.Ct. 1232, 1241-1242, 51 L.Ed.2d 424 (1977); Boykin, 395 U.S. at 243, 89 S.Ct. at 1712 ("The question of an effective waiver of a

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