US v. Payne

• Decision Date: 20 July 1995
• Docket Number: Civ. A. No. 90-10229-WGY.
• Parties: UNITED STATES of America v. Leonard M. PAYNE.
• Court: U.S. District Court — District of Massachusetts

894 F. Supp. 534

UNITED STATES of America v. Leonard M. PAYNE.

Civ. A. No. 90-10229-WGY.

United States District Court, D. Massachusetts.

July 20, 1995.

Owen S. Walker, Federal Defender Office, Boston, MA, for Leonard M. Payne.

Despena F. Billings, U.S. Atty's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

YOUNG, District Judge.

"Three strikes and you're out" is the popular phrase, universally understood here in America.¹ Despite the popular catchwords, however, as politics is not beanbag² so law is not baseball. A hallmark of the law is its capacity for further, reflective proceedings. To exhaust the metaphor, this case presents the intriguing question, "What happens if, long after the game is over, one of the strikes is ultimately ruled to have been a ball?" This issue — a common one in this district, see the comprehensive opinion decided today by Judge Keeton, Pettiford v. United States, 94-12626-REK, 1995 WL 464920 (July 20, 1995), reveals four other curiosities viz., Congress appears not to have considered the matter; the Department of Justice has left United States Attorneys without guidance though the problem appears to be a national one; our United States Attorney has embraced the narrowest possible construction to the apparent surprise of his staff; and, perhaps most curious, Massachusetts criminal convictions appear remarkably vulnerable to direct attack so that the problem is particularly acute in this district. Each of these important issues figures in the discussion below.

I. BACKGROUND

Leonard Payne ("Payne") was convicted on May 1, 1991 of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1).³ Given Payne's then-existing criminal history, the government moved that the Court sentence Payne under the Armed Career Criminal Act ("ACCA"), which states in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person ... and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

18 U.S.C.A. § 924(e) (West Supp.1993). Payne contested the applicability of the ACCA, arguing that neither of two previous convictions for attempted breaking and entering constituted a "violent felony" necessary to draw him under the coverage of the ACCA.⁴ The Court agreed with Payne and refused to sentence him to the mandatory minimum fifteen years, instead sentencing him to ten years as a career offender under the then-governing Sentencing Guidelines.⁵

The Government appealed, arguing that the two attempt crimes were violent felonies. The First Circuit agreed, vacating the sentence and remanding the case for resentencing under the ACCA. See United States v. Payne, 966 F.2d 4, 9 (1st Cir.1992). During the pendency of the appeal, Payne filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, alleging denial of right to counsel, ineffective assistance of counsel, and that the Court had erred in sentencing him as a career offender.

In September of 1992, pursuant to the mandate of the Court of Appeals, the Court sentenced Payne to fifteen years under the ACCA. The Court did not enter judgment at that time, but rather appointed an attorney to represent Payne on his pending habeas petition and any other challenges to the sentence. In early 1993, the Court denied his habeas petition on the merits. At a hearing on November 15, 1993, the Court entered judgment on the fifteen-year sentence.⁶ At that hearing, Payne, through counsel, had alerted the Court that he believed one or more of his prior convictions were constitutionally infirm. Rather than collaterally challenge the validity of the state convictions during the federal sentencing proceeding which, at the time, was open to Payne, see United States v. Paleo, 967 F.2d 7, 11 (1st Cir.1992); United States v. Desmarais, 967 F.2d 17, 20 (1st Cir.1992), he went instead to state court to attack the convictions at their source with the hope of returning to this Court if successful.

To that end, Payne moved for a new trial on his larceny conviction in West Roxbury District Court. Payne claimed that the presiding justice had engaged in an inadequate colloquy in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), at the time Payne pleaded guilty to that offense. On May 24, 1994, the state court allowed the motion and vacated Payne's larceny conviction. The Commonwealth chose not to retry Payne, and dismissed the case.⁷

Having successfully knocked out one of his predicate convictions, Payne filed a motion in this Court for resentencing on May 27, 1994.⁸

II. DISCUSSION

A. Custis v. United States

Analysis must begin with Custis v. United States, ___ U.S. ___, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). That case addressed the issue of whether a defendant in a federal sentencing proceeding subject to the ACCA may collaterally attack the validity of his previous state court convictions. The Supreme Court held that sentencing was not a proper occasion — with one exception not here relevant — for a federal court to examine the propriety of a defendant's prior state convictions. See id. at ___, 114 S.Ct. at 1734. The Court held that collateral attacks were not authorized by section 924(e), noting that "the statute focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential constitutional errors before it may be counted." Id. at ___, 114 S.Ct. at 1736 (emphasis supplied). The provision of the statute prohibiting a court from counting a conviction which has been expunged or set aside or for which the defendant has been pardoned "creates a clear negative implication that courts may count a conviction that has not been set aside." Id. The Court's conclusion also furthered the goals of ease of judicial administration and the finality of judgments. Id. at ___-___, 114 S.Ct. at 1738-39.

Most importantly for present purposes, Chief Justice Rehnquist, writing for the Court, concluded his opinion with the following dictum:

We recognize ... that Custis ... may attack his state sentences in Maryland or through federal habeas review. If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. We express no opinion on the appropriate disposition of such an application.

Id. at ___, 114 S.Ct. at 1739. In dissent, Justice Souter noted:

The Court acknowledges that an individual still in custody for a state conviction relied upon for enhancement may attack that conviction through state or federal habeas review and, if successful, "may ... apply for reopening any federal sentence enhanced by the state sentence." And the Court 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.

Id. at ___, 114 S.Ct. at 1746 (Souter, J., dissenting) (citing JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §§ 8.2, 8.4, at 62-64 & n. 13.2, 89 n. 27 Michie Supp.1993) (emphasis supplied).

Only one post-Custis reported decision has addressed the situation currently before the Court. See United States v. Nichols, 30 F.3d 35 (5th Cir.1994). In Nichols, the defendant was sentenced as a career felon under section 4B1.1 of the Sentencing Guidelines based on his two prior state drug convictions. One of those convictions was vacated by a state appellate court, and the defendant filed a petition under section 2255 to reopen his sentence. In that case the government conceded at oral argument that Custis entitled Nichols to the benefit of the invalidation, and the court thus remanded the case to the district court for resentencing. Id. at 36. In the case at bar the government makes no such concession and argues, therefore, that Nichols does not apply. Nichols is nonetheless strong evidence of the precarious nature of the Government's present posture.⁹ Indeed, in dicta one district court in this circuit has already rejected the position urged by the government here. United States v. Acosta, 861 F.Supp. 1, 3 (D.R.I.1994) (Pettine, J.) (if state courts determine prior convictions to be unconstitutional, defendant may petition for review of enhanced sentence).

Moreover, federal courts around the country, in applying the holding of Custis to deny collateral review of state convictions in sentencing proceedings under the ACCA (and other sentence enhancement statutes), have noted and relied upon the availability of subsequent sentence review upon invalidation of a predicate conviction.¹⁰ The case law makes clear that Custis deals with the timing, but not the ultimate availability, of collateral attack on sentence-enhancing predicate convictions. See Nichols v. United States, ___ U.S. ___, ___, 114 S.Ct. 1921, 1937, 128 L.Ed.2d 745 (1994) (Ginsburg, J., dissenting) (arguing that Custis presented a "forum question" of "where, not whether, the defendant could attack a prior conviction for constitutional infirmity"); Brock v. Weston, 31 F.3d 887, 890 (9th Cir.1994) (Custis holding that sentencing courts not constitutionally obligated to examine validity of predicate convictions "clearly premised on the fact that collateral attacks based on other defects may be heard on habeas review").¹¹

The Appeals Court of Massachusetts, in reviewing the denial of a motion for a new trial on an old conviction brought by a...