Lawrence Leroy Farrow v. United States

HUFSTEDLER, Circuit Judge,

dissenting; in which Judge ELY concurs:

Farrow alleged that his sentence had been enhanced by the sentencing court’s consideration of prior convictions constitutionally invalid under Gideon v. Wainwright (1963) 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 , in violation of United States v. Tucker (1972) 404 U.S. 443 , 1 and he attacked some other aspects of the sentencing proceedings. Following the procedure adopted in Lipscomb v. Clark (5th Cir. 1972) 468 F.2d 1321 , the district court rejected the Tucker contention, stating that “even if all challenged priors are disregarded the sentence would be the same in this case.” (Farrow v. United States (S.D.Cal.1974) 373 F.Supp. 113, 117 .) The majority opinion holds that the district court correctly followed Lipscomb , and that no evidentiary hearing was required either on the petitioner’s Tucker claims or his other challenges to deficiencies in the sentencing procedures.

*1363 I would not follow Lipscomb because it is contrary to the teaching of Tucker . Instead, I would adopt a simple, straightforward procedure: Upon the petitioner’s showing that prior convictions obtained in violation of Gideon were brought to the sentencing judge’s attention and that the sentence imposed was more than the statutory minimum, the original sentence would be deemed defective, requiring vacation of the original sentence and resentencing of the petitioner after the invalid prior convictions were stricken.

Because I would vacate and remand for resentencing, it is unnecessary to reach the other issues. On resentencing, the petitioner can correct the claimed deficiencies in the sentencing process.

Other circuits, as well as our own, have had difficulty in creating satisfactory procedures to be followed by the district courts in deciding whether a Tucker error occurred, and, if it has occurred, the appropriate remedy for violation. Three elements are required to support a claim of Tucker error: (1) Prior convictions obtained in violation of Gideon, (2) were brought to the sentencing court’s attention, (3) that created a “ ‘reasonable probability’ ” that the invalid priors enhanced the sentence imposed. (United States v. Tucker, supra, 404 U.S. at 445 , 92 S.Ct. 589 .)

I

Lipscomb tells the district court first to assume that the challenged prior convictions are invalid and, on that assumption, to “review the records involved in this conviction” to decide whether the sentence given “would still be the appropriate sentence.” ( 468 F.2d at 1323 .) If the district court decided that' the sentence it earlier gave was appropriate, Tucker relief is denied. Only if it decides that the sentence would be inappropriate does the court then hold an evidentiary hearing to decide whether the prior convictions were unconstitutional, and, if they were, the district court then vacates the sentence and resentences.

The Lipscomb procedure complies neither with Section 2255 nor with Tucker . The question is not whether the sentence would have been “appropriate,” even if the sentencing judge had not known about the invalidity of the prior convictions. The question is whether, at the time of the sentencing, the judge would have given the same sentence if he had known that the prior convictions were invalid and that he could not consider them. The Supreme Court in Tucker specifically rejected the Government’s argument that resentencing should not be required because “it is highly unlikely that a different sentence would have been imposed even if the judge had known that two of the respondent’s previous convictions were constitutionally invalid . [and] to now remand this case for resentencing would impose an ‘artificial’ and ‘unrealistic’ burden upon the District Court.” ( 404 U.S. at 446 , 92 S.Ct. at 591 .) If a Tucker error could be cured simply by the district judge’s reviewing the initial sentencing record, deleting the invalid priors, and deciding whether the sentence was still “appropriate,” the Supreme Court’s rejection of the Government’s argument would be incomprehensible. The Supreme Court, in fact, refused to permit the harmless error doctrine (disguised under the “appropriateness” rubric) to be applied to avoid resentencing.

In the Tucker case, prior convictions had been brought to the sentencing court’s attention which were constitutionally invalid under Gideon. The invalidity of the challenged prior convictions appeared upon the face of the record in support of Tucker’s Section 2255 petition. The district court disclaimed its reliance on the invalid prior convictions, concluded that error in admitting the priors was harmless beyond a reasonable doubt, and, upon reconsidering the sentence, denied relief. On appeal, this court agreed that the introduction of the prior convictions for impeachment was harmless error, but we concluded from the fact that the district court imposed the maximum penalty that there was a “reason *1364 able probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed.” ( 431 F.2d 1292, 1294 .) We remanded the case for resentencing, and the Supreme Court affirmed.

Stripped of its unnecessary trappings, the Lipscomb procedure directs the sentencing judge to strike the invalid prior convictions from his mind, and without any resentencing, to decide whether he would now give the same sentence to the petitioner. That is the procedure that the Government recommended to the Supreme Court in Tucker and that both we and the Supreme Court rejected in that case.

The Lipscomb formulation is also defective because it requires an assumption of invalidity of the prior convictions before reconsideration of the sentence. In my view, this approach is backwards. Unless the petitioner establishes that the convictions he challenges were invalid under Gideon, the sentencing judge has no occasion to reconsider the sentence. An evidentiary hearing challenging the validity of prior convictions on Gideon grounds will rarely be necessary. Ordinarily, the face of the record of the prior conviction will reveal either the presence or the absence of counsel. If the record clearly shows that counsel was present, an evidentiary hearing will not be required unless the petitioner claims that the record does not truly reflect the proceedings. If the record is silent concerning the presence of counsel, or if the record is equivocal, the absence of counsel is presumed. (Burgett v. Texas (1967) 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 .) In absence of proof from the record that the petitioner knowingly and intelligently waived his right to counsel, the prior conviction is constitutionally infirm. Waiver of counsel cannot be presumed from a silent record. (Carnley v. Cochran (1962) 369 U.S. 505 , 82 S.Ct. 884 , 8 L.Ed.2d 70 ; Burgett v. Texas, supra. Cf. Boykin v. Alabama (1969) 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 ; Halliday v. United States (1969) 394 U.S. 831 , 89 S.Ct. 1498 , 23 L.Ed.2d 16 .) The Government bears the burden of proving that the petitioner knowingly and intelligently waived his right to counsel where the record is either silent or equivocal. If the Government makes a showing that petitioner knowingly and intelligently waived counsel, the petitioner must then come forward with evidence to rebut the Government’s proof. In almost all cases, the Gideon issue will be resolved by the combination of the record of the prior proceedings together with the allocations of the respective burdens of proof. Because the burdens are very difficult to overcome, there will be few occasions in which any kind of evidentiary hearing will be necessary.

The convoluted procedure of Lipscomb and such cases as Brown v. United States (4th Cir. 1973) 483 F.2d 116 , is based upon an unarticulated premise that evidentiary hearings may be required to resolve potential disputes concerning the validity of the prior convictions or the state of the judge’s mind at the time of the initial sentencing, or both. The courts have understandably sought to avoid a factual inquiry into the sentencing judge’s state of mind when he first sentenced the petitioner. Not only does that inquiry involve the familiar difficulties of reconstructing the mental processes of a person, but also the unhappy prospect that the person whose state of mind is to be reconstructed is that of the sentencing judge. The only person who can testify about the judge’s state of mind is the judge himself. If the sentencing judge’s testimony is needed to decide the enhancement issue, the hearing must be conducted by a different judge because the judge presiding at the trial cannot testify in that trial as a witness. (Fed.R.Evid. 605.) The sentencing judge’s informal disclaimer of reliance, of course, is not testimony, and it cannot be used to support factual findings that Section 2255 mandates.

The purpose of Tucker is to prevent the use for any purpose of a conviction obtained in violation of Gideon. That purpose is fully achieved by imposing the burden on the petitioner to establish a prima facie case *1365 Tucker violation by showing that: (1) from the records of the challenged prior convictions, the petitioner neither had counsel nor was there a valid waiver of counsel on the record, (2) the constitutionally invalid prior convictions were called to the attention of the sentencing judge, (3) the sentencing judge did not place on the record at the time of the initial sentencing a denial of reliance on the unconstitutional prior convictions, and (4) the challenged sentence exceeded the minimum sentence that the court could have imposed for the offense or offenses of which the petitioner was convicted. When that showing is made, the sentencing judge should vacate the sentence and resentence the petitioner. That approach follows both the letter and the spirit of Tucker .

No reason appears for requiring evidentiary hearings the only purpose of which is to decide whether the sentence should be vacated and the petitioner resentenced. It does not make sense to devote more judicial time in deciding whether to decide than to decide. The simple and straightforward approach is to treat the initial sentencing as defective when the petitioner has made the prima facie showing and to follow the procedure which we routinely use for other kinds of defects in sentencing, namely, to vacate and to resentence. (E. g., United States v. Read (9th Cir. 1976) 534 F.2d 858 ; United States v. Weston (9th Cir. 1971) 448 F.2d 626 .) This is the procedure which we used, not only in Tucker itself, but also in Leano v. United States (9th Cir. 1974) 494 F.2d 361 .

Accordingly, following both Tucker and Leano , I would overrule contrary authority in the circuit following Lipscomb , and I would vacate the sentence and remand the petitioner for resentencing to the district court.

. Six prior convictions were listed in the presentence report which the sentencing judge states he had “read and considered” prior to imposing sentence. Of these, four were uncounseled priors. The remaining priors were challenged on other constitutional grounds.