Edward Eugene Brown v. United States

CRAVEN, Circuit Judge

(concurring in part and dissenting in part):

I concur in that portion of the majority opinion which remands the case to the district court to determine if the sentence given the petitioner is an appropriate one without taking into account the challenged prior convictions which may have been constitutionally void. Such a conclusion is, of course, simply a finding of fact that the purported prior criminal record contributed nothing to the determination of the length of sentence. But if the challenged prior convictions did in fact affect the length of sentence, then I am unable to agree that the district court should dismiss the petition as premature unless the prior convictions have been invalidated in other collateral proceedings directly attacking the prior convictions.

I think United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972), requires that if a habeas petitioner or a moving prisoner under § 2255 can establish that a prior conviction obtained in violation of Gideon was considered by the sentencing judge, he is entitled to be resentenced without regard to the prior conviction, or at the very least, to a finding of fact that the sentence was nevertheless appropriate, i. e., not longer than it would have been had the sentencing judge been unaware of the prior invalid conviction. To determine in a habeas or § 2255 proceeding whether prior convictions were obtained in violation of Gideon conserves judicial resources. Only one court is required to determine appropriate relief. Under the majority approach, a habeas or § 2255 proceeding is required in the first instance to determine whether an appropriate sentence was given assuming all challenged prior convictions invalid. If the sentence would not have been appropriate, a new collateral proceeding must be commenced for each challenged conviction, e.g., in the present case three proceedings would be required. At the conclusion of the proceedings collateral to the pending collateral proceeding, the district court would then have to determine the appropriate relief. Moving a stack of petitions to some other court does not really advance the judicial process.

I do not think the policy of Braden v. 30th Judicial Circuit Court, 410 U.S. 484 , 93 S.Ct. 1123 , 35 L.Ed.2d 443 (1973), requires such a bifurcation of the judicial process. Determining the presence of counsel is not a complex issue.

The majority opinion notes with approval the invalidation of recidivist convictions resting on evidence constitutionally invalid, i. e., on a prior state conviction which is void under Gideon, even though the conviction has not been collaterally attacked. The present situation, where the sentence may have been enhanced because of the same constitutional infirmity, is distinguished on the ground the prior convictions did not rep *123 resent an essential element in the proof of petitioner’s crime. It is a distinction but without a difference: enhanced punishment rests upon a prior criminal record rendered void by Gideon. As stated by the Court in Tucker :

In Burgett we said that “[t]o 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.”

404 U.S. at 449 , 92 S.Ct. at 593 (Emphasis added).

The primary difference between the facts in Tucker and this case is that in Tucker the unconstitutionality of the prior convictions had been fully adjudicated in the state courts. Here there is only Lipscomb’s allegation that the priors were obtained in violation of Gideon. The Solicitor General did not find this distinction sufficient to place this case outside the scope of Tucker . We agree.

Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972). See also Russo v. United States, 470 F.2d 1357 (5th Cir. 1972); Davis v. Wainwright, 462 F.2d 1354 (5th Cir. 1972); United States ex rel. Lasky v. LaVallee, 472 F.2d 960 (2d Cir. 1973).