# United States v. Benton D. Burt

> Court of Appeals for the Ninth Circuit · October 10, 1986 · 802 F.2d 330

URL: https://www.frixlaw.com/law-library/cases/9475412

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Benton D. BURT, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 10, 1986
- **Citations:** 802 F.2d 330; 1986 U.S. App. LEXIS 32078
- **Precedential status:** Published
- **Opinion:** Dissent by Sneed
- **Judges:** Sneed, Farris, Ferguson
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SNEED, Circuit Judge,
dissenting:
I respectfully dissent.
Burt’s 1962 conviction is “valid” under the dangerous special offender (DSO) statute, 18 U.S.C. § 3575 . A defendant is entitled to dispute the validity of prior convictions at his DSO hearing; however, the standard by which the trial court determines validity should be the same as in other collateral proceedings. Specifically, if a defendant challenges a prior conviction on the basis of a Supreme Court decision that is not retroactive, so that the challenge would fail on direct or collateral review, then the sentencing court should not *337 ignore the conviction when applying 18 U.S.C. § 3575 (e).
Nothing in the legislative history of the DSO statute precludes this interpretation. The Senate Report implies that Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967), offers guidance as to what is an “invalid” conviction. S.Rep. No. 617, 91st Cong., 1st Sess. 164 (1969). Burgett holds that a trial court may not admit, either to support guilt or to enhance punishment for another offense, a prior conviction that might have been obtained in violation of the Sixth Amendment right to counsel. Id. at 115 , 88 S.Ct. at 262 . However, the right to counsel, as defined in Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), was applied retroactively in Pickelsimer v. Wainwright, 375 U.S. 2 , 84 S.Ct. 80 , 11 L.Ed.2d 41 (1963) (per curiam), and was the basis of the reversal of a conviction under a recidivist statute in Greer v. Beto, 384 U.S. 269 , 86 S.Ct. 1477 , 16 L.Ed.2d 526 (1966) (per curiam). Thus, Burgett supports the position of this dissent.
The Supreme Court, however, chose not to apply Griffin retroactively. Tehan v. United States ex rel. Shott, 382 U.S. 406 , 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966). Therefore a conviction obtained prior to 1965 may not be attacked on the basis of Griffin error in habeas corpus proceedings. Nor should it be disregarded in DSO sentencing hearings. 1
By declining to apply Griffin retroactively, the Supreme Court decided that defendants convicted in trials involving Griffin error would suffer different consequences depending on whether their trials took place before or after Griffin. I see no reason to depart from this approach. A trial tainted with Griffin error is as likely to result in a true verdict as any other trial, because “the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth.” Tehan, 382 U.S. at 416, 86 S.Ct. at 465 . Hence a pre Griffin conviction resting on Griffin error provides the required prerequisite to showing that a defendant is a habitual criminal. A gost-Griffin conviction tainted with Griffin error, however, cannot provide the required showing because it is invalid within the meaning of the DSO statute.
The majority is concerned with our standard of review. As I see it, this case presents a question of law. We are in as good a position as the district court to answer it. See United States v. DiFrancesco, 449 U.S. 117, 141 , 101 S.Ct. 426, 439 , 66 L.Ed.2d 328 (1980) (under 18 U.S.C. § 3576 , an appellate court is empowered to correct a lower court’s legal error). I think both the district court and the majority answered the question incorrectly. Therefore I dissent.
. In United States v. Scarborough, 777 F.2d 175 (4th Cir.1985), the court limited the grounds on which a prior conviction could be challenged in a DSO hearing to those that would support a challenge in other collateral proceedings. Scarborough complained that he was denied a DSO sentencing hearing. At the hearing, he would have attacked one of his prior convictions as invalid because it was based on evidence that should have been suppressed. Id. at 181 . The court ruled that denying Scarborough a hearing was harmless error. Scarborough had had a full and fair opportunity to litigate the suppression issue at his first trial. Hence Stone v. Powell, 428 Ü.S. 465, 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), would have barred him from raising the issue at his DSO sentencing hearing, just as it barred him from raising it in a habeas corpus attack. Id. at 182-83.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475412. Public record. Not legal advice.