Petition — Smith v. United States

80-197]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NO.

DONALD GILBERT SMITH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM T. WHITAKER

73 East Mill St., Suite 300

Akron, Ohio 44308

Telephone: (216) 762-0287

Counsel for Petitioner

II.

Il.

IV.

QUESTIONS PRESENTED

Whether the failure to state affirmatively on the record

what facts, if any, justify imposing a sentence nearly four

times harsher upon a Defendant for identical conduct

underlying his earlier conviction by plea bargain, (and with

essentially identical presentence investigation reports)

shows Constitutionally prohibited vindictiveness after suc-

cessful appeal.

Whether reindictment upon all six original counts, after

successfully setting aside a sentence imposed in excess of

the understood maximum to the charge upon which a Defen-

dant entered a bargained for guilty plea, rather than gran-

ting specific performance of the original plea bargain, con-

stitutes forbidden prosecutorial vindictiveness chilling

Defendant’s exercise of his due process rights.

Whether denial of a Section 2255 Motion without hearing

is permissible when a lack of facts justifying a harsher

sentence exists on the record.

Whether Defendant properly raises these issues, first fully

presented upon a Motion for Reconsideration upon his

direct appeal, by this Section 2255 Motion.

1

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISION INVOLVED........... 3

STATUTE INVOLVED. 6... ccédiccsaneen tees 3

STATEMENT OF THE CAGE. 63.0250 essen aubeudeneneee 4

REASONS FOR GRANTING THE WRIT................ 7

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APPENDICES:

A Order of Sixth Circuit Court of Appeals of

September 15, 1900. ...06c0sciseeeccunenewe eee Al

B Order and Opinion of United States District Court

for the Northern District of Ohio, Eastern

Division of October 31, 8979... +. ss00asekeessseeeeen Bl

C Order of United States District Court for the

Northern District of Ohio, Eastern Division

of Septeunber 23, 1970.0. isc cesdicwsateneeeus ieee Cl

D Memorandum Opinion and Order of the United

States District Court for the Northern District

of Ohio, Eastern Division of September 20, 1979...... D1

(ii)

TABLE OF AUTHORITIES

CASES

Blackledge v. Perry,

ee TES ¢ v'nd.u'h Ae oce'n 2 Ca ea he Wa KKeewen Ors 12, 14

Bordenkircher v. Hayes,

£88 a | eee Aida ie as wate i aie 15

DiAngelo v. United States,

SF. Ce ee es BO. TOT Bao ink ccs vccey tabese ccs 17

Fontaine v. United States,

ee RC hid Shaw cw k cae ceded encnewens 15

Heard v. United States,

ee a a SO i obs ce anceaubaeeiciuses 17

Kaufman v. United States,

ee ee, eS ea a Sains sb aee webs phouehuwe aa 16

Marano v. United States,

ee ee or ks ees once eadeaeaeekous 9

North Carolina v. Pearce,

ee A FE a ha ah ne cine hes chances 6, 9, 14, 18

Palermo vy. Warden, Green Haven State Prison,

ee DOPE bv vnc ape pbiawccvecdessanuas 13

Petition of Geisser,

ee ails SPT oo cab beeees as cadevcveeess 13

Santobello v. New York,

ee cls Lhe sa Spe ebauh oeenaseeonneees 13

Stephens v. United States,

ee gs sO dad coy ob 00s ta eee 16

Tooisgah v. United States,

se es Bs 5 i occ vohcsus teed savenes 17

United States v. Andrews,

GAs Fe are Cree Ges BGTOR oa cc vccccaces 9, 12, 14, 15, 18

United States v. Brown,

Be ee BAe Gs COTO chk vic Noob ae csr siveavaea 13

(iii)

United States v. Derrick,

ie ge ee. | reer

United States v. Grandinetti,

ke ge a.) Sr ere

United States v. Preciado-Gomez,

Ae ee eer re

United States v. Smith,

546 F. 2d 424 (6th Cir. 1976).......ccccccccees

United States v. Smith,

FP s Oe FIP COU Gals BOTEDe cic ccccevscceses

United States v. Sorenson,

308 F. Supp. 1268 (E.D. N.Y. 1970)...........

United States v. Stockwell,

ie ee ee os

United States v. Timmreck,

PCT p66 cian atosiccncessesees

Ward v. State,

444 P. 2d 252 (Okla. Cr. App. 1969)...........

STATUTES CITED

28 U.S.C. Section 2255

Rule 8, Section 2255 Motions

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NO.

DONALD GILBERT SMITH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Sixth

Circuit entered on September 15, 1980.

OPINIONS BELOW

The United States District Court for the Northern District of

Ohio, Eastern Division, by the Honorable Robert Krupansky,

issued an Opinion and Order of the trial court on September 21,

1979, (Case Number C79-809A), and a further opinion on

October 31, 1979, denying Petitioner’s Motion for New Trial

and Hearing. Neither opinion is published; they are attached

hereto as Appendix C, D and Appendix B respectively. The

2

United States Court of Appeals for the Sixth Circuit affirmed

the judgment of the trial court on September 15, 1980, without

opinion. (Case Number 79-5422). The Court’s order is attached

hereto as Appendix A.

JURISDICTION

The judgment of the United States Court of Appeals for the

Sixth Circuit (Appendix A) was entered on September 15, 1980,

denying Petitioner’s cause presented pursuant to 28 U.S.C. sec-

tion 2255. This petition for writ of certiorari invokes the

jurisdiction of the Supreme Court of the United States pursuant

to 28 U.S.C. section 1254 (1).

QUESTIONS PRESENTED

I. Whether the failure to state affirmatively on the record

what facts, if any, justify imposing a sentence nearly four

times harsher upon a Defendant for identical conduct

underlying his earlier conviction by plea bargain, (and with

essentially identical presentence investigation reports)

shows Constitutionally prohibited vindictiveness after suc-

cessful appeal.

II. Whether reindictment upon all six original counts, after

successfully setting aside a sentence imposed in excess of

the understood maximum to the charge upon which a Defen-

dant entered a bargained for guilty plea, rather than gran-

ting specific performance of the original plea bargain, con-

stitutes forbidden prosecutorial vindictiveness chilling

Defendant’s exercise of his due process rights.

III. Whether denial of a Section 2255 Motion without hearing

is permissible when a lack of facts justifying a harsher

sentence exists on the record.

IV. Whether Defendant properly raises these issues, first fully

presented upon a Motion for Reconsideration upon his

direct appeal, by this Section 2255 Motion.

3

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the militia, when in actual service

in time of war or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation.

STATUTE INVOLVED

28 U.S.C. Section 2255:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground the sentence was imposed in

violation of the Constitution or laws of the United States,

or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the max-

imum authorized by law, or is otherwise subject to col-

lateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto. If the court

finds that the judgment was rendered without jurisdic-

4

tion, or that the sentence imposed was not authorized by

law or Otherwise open to collateral attack, or that there

has been such a denial or infringement of the constitu-

tional rights of the prisoner as to render the judgment

vulnerable to collateral attack, the court shall vacate and

set the judgment aside and shall discharge the prisoner

or resentence him or grant a new trial or correct the

sentence as may appear appropriate.

A court may entertain anc determine such motion

without requiring the production of the prisoner at the

hearing.

The sentencing court shall not be required to entertain a

second or successive motion for similar relief on behalf

of the same prisoner.

An appeal may be taken to the court of appeals from the

order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it ap-

pears that the applicant has failed to apply for relief, by

motion, to the court which sentenced him, or that such

court has denied him relief, unless, it also appears that

the remedy by motion is inadequate or ineffective to test

the legality of his detention. As amended May 24, 1949,

c. 139, section 114, 63 Stat. 105.

STATEMENT OF THE CASE

Donald Gilbert Smith, Petitioner, was arrested and indicted

on six counts charging violations of 21 U.S.C. sections 841,

841(a) (1), and 846 on September 26, 1974. Several other per-

sons were indicted with him, in a nine count indictment. The

indictment specified amounts of the controlled substances in-

volved in each alleged offense. The Government had extensive

Grand Jury hearings in August 1974, and had telephone taps on

5

Donald Gilbert Smith, and a taped conversation between

Donald Gilbert Smith and Kathryn Carr. Armed with this infor-

mation and evidence, the Government negotiated with Donald

Gilbert Smith and his counsel, exchanging a plea of guilty to

Count VI of the indictment for dismissal of the remaining five

counts and a recommendation of not more than five years’ im-

prisonment. On December 9, 1974, Donald Gilbert Smith

entered his plea of guilty. In the course of the Rule 11 examina-

tion, no explanation of mandatory special parole was given. A

presentence investigation was ordered.

On February 12, 1975, Donald Gilbert Smith was sentenced

by the Court to four years’ imprisonment and three years’

special parole.

Defendant filed a petition pursuant to 28 U.S.C. section 2255

to vacate his plea and sentence because he was not informed of

the effective length of his sentence regarding special parole. The

Sixth Circuit Court of Appeals upheld the petition, and

remanded the matter to the District Court for vacation of

sentence and setting aside the plea for entry of a new plea.

United States v. Smith, 546 F. 2d 424 (6th Cir. 1976).

Donald Gilbert Smith was held for twenty-seven (27) days

after the sentence was vacated, during which time the United

States Attorney dismissed the old charge and obtained a

superseding indictment reinstating the original six counts

against Smith. After nearly two years of imprisonment on the

first charge, Donald Gilbert Smith was not given the opportunity

to plead anew to the remaining charge, but was required to

stand trial upon all six counts, five of which had been dismissed

and which he had no intention of reviving by having his

sentence correctly imposed.

At trial, the Government’s case consisted chiefly of substan-

tively impeaching their own witnesses with prior inconsistent

testimony before the Grand Jury - the very testimony in the

Government’s possession at the time of the first plea and

sentencing. The jury returned verdicts of guilty on all six counts

on March 30, 1977. On April 22, 1977, Donald Gilbert Smith

was sentenced to a total of 15 years’ imprisonment and 12 years’

special parole, after a presentence investigation. The 1975 and

6

1977 presentence investigations, part of the record below, are

essentially identical. At sentencing, the trial Court stated that at

the first sentencing he was familiar with the presentence in-

vestigation, and had considered only the offense pled to. He

relied on the new presentence, ard the trial evidence of the

magnitude of the drug operation and Defendant’s ‘‘key role’’

therein to impose the harsher sentence. No facts from the new

presentence or of conduct occurring after the original sentence

were stated in support of the sentence. Defendant asserts that a

review of both reports shows no new facts or identifiable con-

duct after the original sentence upon which the Court could rely

for increasing the sentence. The Government knew the factual

strength of its entire case against Donald Gilbert Smith prior to

February 12, 1975, and the presentence report is designed to

present the Government’s and the Defendant’s version of the

facts to the sentencing judge. Petitioner asserts that comparison

of the presentence investigation of 1974-75 with the trial

testimony and the report of 1977 does not reveal any of the ob-

jective facts required by North Carolina v. Pearce, 395 U.S. 711

(1969), before a harsher sentence is imposed after the exercise of

a procedural right.

Upon direct appeal, Petitioner’s counsel briefed and argued

that the reindictment placed Defendant in double jeopardy.

Smith himself (by Supplemental Brief pro se) attempted to raise

the issues of vindictiveness in the reindictment and/or increased

sentence and failure of the District Court to follow the mandate

of the Sixth Circuit by permitting him to plead anew to the

original charge. At the end of its opinion (Case No. 77-5281),

the Sixth Circuit sua sponte raised the question of the propriety

of the new indictment in light of the mandate issued, and sum-

marily determined it to be proper. United States v. Smith, 584

F. 2d 759 (6th Cir. 1978). Donald Gilbert Smith, by new

counse!, moved for rehearing on the issues of vindictive pro-

secution and sentence, but rehearing was denied on December

15, 1978. Petition for writ of certiorari to the United States

Supreme Court was denied on April 23, 1979.

Thereafter, on April 30, 1979, Defendant filed a petition pur-

suant to 28 U.S.C. section 2255, to vacate, modify, or correct

7

his sentence, imposed contrary to due process and in violation

of his plea bargain agreement and the Sixth Circuit’s mandate.

The United States District Court for the Northern District of

Ohio, Eastern Division denied the motion on September 21,

1979, without hearing. Defendant’s motion for new trial and for

hearing was overruled on October 31, 1979. Appeal was taken

to the United States Court of Appeals for the Sixth Circuit on

November 30, 1979. After briefing and argument, the Sixth Circuit

affirmed the District Court without further opinion, on

September 15, 1980. The Petitioner hereby presents this Court

with his timely petition seeking writ of certiorari to the lower

Court.

REASONS FOR GRANTING THE WRIT

,

NO FACTS EXIST OR ARE AFFIRMATIVELY

STATED ON THE RECORD WHICH JUSTIFY

THE IMPOSITION OF AN ALMOST FOUR-

FOLD SENTENCE UPON DEFENDANT FOR

THE IDENTICAL CONDUCT UNDERLYING HIS

INITIAL CONVICTION AND SENTENCE, AND

A HARSHER SENTENCE AFTER SUCCESSFUL

EXERCISE OF DEFENDANT’S RIGHTS IS

THEREFORE UNCONSTITUTIONALLY IMPOSED.

After indictment and conviction in 1974, Defendant received a

four year imprisonment, three year special parole sentence. A Sec-

tion 2255 Motion succeeded because of sentencing irregularities.

After identical indictment and multiple conviction in 1977, Defen-

dant received, cumulatively, a 15 year imprisonment, 12 year special

parole sentence. On its very face, this sentence Operates as a warning

to all not to seek reimposition of sentence in accord with Rule 1]

(d). The realistic likelihood or actuality of vindictiveness is

unavoidable.

To date no explanation has been offered for sentencing Donald

Gilbert Smith so much more harshly. There are no objective and

stated findings of Defendant’s indentifiable conduct after February

2, 1975 on the record to justify the harsher sentence.

The Government asserted in its brief in the direct appeal that facts

occurring before the original sentence may have come to the Court’s

attention during trial. The Court does not indicate in the sentencing

transcript anything more than the weight of the evidence and the

scope and magnitude of the drug operation in which Smith played a

“key role.”” All of these reasons are not identifiable conduct after

the original sentence. Indeed, these reasons are markedly devoid of

facts. Furthermore, the two presentence reports show that the

“‘scope and magnitude’’ and Smith’s position in the drug operation

were equally known to the Court at initial sentencing. No new facts

appear on the sentencing record.

The Court, in sentencing Petitioner, stated he had evaluated

the new presentence investigation. He did not cite any facts

from that report which differed from facts available to him at

the first sentencing or which related to subsequent conduct of

Defendant, much less facts sufficient to justify a four times har-

sher sentence. Marano v. United States, 374 F. 2d 583 (ist Cir.

1967). A comparison of the two reports reveals no later conduct

by Defendant to support a severer sentence and no significant

difference in the Government’s case against Smith. Surely,

Smith having stood trial cannot be used to increase his sentence,

especially when he did not desire to reopen his entire cause. See

United States v. Derrick, 519 F. 2d. 1 (6th Cir. 1975) (no matter

how overwlt Iming the evidence of guilt, sentence cannot be in-

creased because a Defendant went to trial); United States v.

Stockwell, 472 F. 2d 1186 (9th Cir. 1973) (a breakdown in

negotiations cannot result in a harsher sentence unless facts

show the sentence imposed was ‘‘soley upon the facts of his case

and his personal history, and not as punishment for his refusal

to plead guilty.’’ Jd. at 1188).

In denying the section 2255 motion here in issue, the District

Court stated that Pearce, supra, limited only more severe

punishment for the same offense. The Court went on to indicate

that for the particular offense of which Defendant had been

9

previously convicted, he actually received a lesser sentence (4

years imprisonment, 2 years special parole). Only the aggregate

sentence was harsher, which the Court justified because Smith

had been convicted of five additional offenses. However, the

conduct was the same and was known to be the same at the time

of sentencing. The Court was aware of the five counts it dismiss-

ed on February 12, 1975, and by presentence report was also

aware of the Government’s version of Smith’s involvement in

all six couuts. Yet, the sentence the Court imposed after plea of

guilty was not even the maximum allowable sentence. Thus, the

Court had exercised his discretion to the fullest. See United

States v. Andrews, 612 F. 2d 235 (6th Cir. 1979).

To sentence Smith after successful appeal and trial to the

severe sentence as imposed, given the same information and cir-

cumstances upon which two years earlier the Court had not even

imposed the maximum sentence, surely raises the spectre of

judicial vindictiveness as a ‘‘realistic likelihood.’’ This is not a

case where the original offense did not provide a ‘‘sufficient’’

penalty, and thus the Court took advantage of the opportunity

to expand beyond the maximum sentence available to be impos-

ed the first time. This is a case where a Defendant received an

additional sentence on the same facts and circumstances, after

the sentencing Judge had exercised his sentencing discretion fully

and had decided to impose less than the maximum in 1975.

Smith’s rights were violated by this sentence, and this Court

should exercise its power to correct the Constitutionally inade-

quate proceedings below and to modify the sentence to comport

with fairness and justice under all the premises, ie., to impose

sentence as imposed before or up to the bargained for maximum

of five years.

10

REINDICTMENT ON ALL SIX COUNTS,

RATHER THAN SPECIFIC PERFORMANCE OF

THE PLEA BARGAIN OR ENTRY OF A NEW

PLEA TO THE OLD CHARGE, WAS IMPROPER

AND VINDICTIVE AND CHILLS THE EXER-

CISE OF DUE PROCESS RIGHTS.

With full knowledge of Smith’s alieged involvement with con-

trolled substances, the Government negotiated a plea of guilty

to one charge and dismissed the other five counts against Defen-

dant in the 1974 indictment. Due to an omission to explain the

existence and meaning of mandatory special parole to Defen-

dant at plea and sentencing, this guilty plea was vacated. United

States v. Smith, 546 F. 2d 424 (6th Cir. 1976). Smith had already

been incarcerated for almost two years. )

Before Smith could plead anew, as directed by the Sixth

Circuit, the Government dismissed the old indictment and had

the Grand Jury return a six count indictment identical to the

1974 indictment. No reason or basis for this action existed.

Although content in 1974 to have Defendant convicted on

Count VI and serve no more than five years imprisonment for

conduct known as well in 1974 as in 1977, the United States

Attorney responded to Petitioner’s successful assertion of his

rights by reinstituting five dead charges against him. Smith

sought performance of his plea bargain and explanation of his

potential sentencing liability. He received a six count indictment

and a nearly four-fold sentence.

The extent of the prejudice to Smith is emphasized when one

considers that United States v. Timmreck, 441 U.S. 780 (1979),

now makes the failure to inform of mandatory parole a

technical violation which is not a collateral attack upon convic-

tion, but only sentence. Thus, under Timmreck, Smith would

have received the remedy he sought, vacation of sentence and

remand to be sentenced properly for the original single offense

with which he had been convicted. To permit the Government

herein to accomplish a vacation of conviction and to reinstitute

11

proceedings on five new charges as well, is to give the Govern-

ment absolute discretion to accomplish a vindictive purpose

which even a Court is precluded from accomplishing under

Timmreck.

Once the prosecution elects to accept a guilty plea to less than

the original indictment, it cannot retry a Defendant on the full

indictment and thereby exact a greater penalty. Ward v. State,

444 P. 2d 252 (Okla. Cr. App. 1968). Prosecutorial actions

which exact a penalty for the exercise of a procedural right

thereby creating the reasonable fear of vindictive motivation,

the realistic likelihood of vindictiveness, or actuality of vindic-

tiveness are violations of the principles of due process.

Blackledge v. Perry, 417 U.S. 21 (1974); United States v.

Andrews, supra. How can such an action be said not to

discourage seeking a remedy?

A retrial ‘‘seeking a heavier penalty for the same acts as

Originally charged is inherently suspect’’ as vindictive. United

States v. Preciado-Gomez, 529 F. 2d 935, 936 (9th Cir. 1976).

At all times the Government acted with full cognizance of the

conduct of Donald Gilbert Smith upon which the charges

against him were based. No new offenses were alleged or pro-

ven. In effect, the Government punished Donald Gilbert Smith

for asserting his constitutional and statutory rights by pro-

ceeding with a course of action open to them in 1974, but aban-

doned in return for the guilty plea.

In the situation where the Government has fully exercised its

discretion and actually carried that decision through and obtained

a conviction

absent an explanation encompassing factors unknown

or nonexistent at the time of the original decision was

made it could fairly be assumed that the sole factor in-

tervening between such decision and the shift to a more

punitive position - the defendant’s exercise of a protected

right - played a part in the determination. Hence, a

reasonable apprehension of the realistic likelihood of vin- °

dictiveness might arise. United States v. Andrews, supra.

(Emphasis added).

What intervened between the Government’s decision in 1974

12

and the decision in 1977 is even more critical to Petitioner’s

cause, because he stood convicted and was serving his sentence.

Without Smith’s exercise of his protected right, the Government

would not even have had the opportunity to reverse the essen-

tially final decision made in 1974. The Government must ex-

plain its action and dissipate the glaring evidence of vindictive

intent and effect. The Government never has offered an ex-

planation in defense of this action.

Santobello v. New York, 404 U.S. 257 (1971), lays guidelines

to enforce plea bargains. Therein it is recognized that the

minimum remedy is specific performance of the bargain. Jd. at

262-263. The Defendant’s choice should be given great weight.

(Op. Douglas, J., concurring, at 267). Sentencing before a dif-

ferent judge is indicated. E.g., United States v. Grandinetti, 564

F. 2d 723 (Sth Cir. 1977).

Herein, Smith had already served almost half of his imprison-

ment; prejudice would result unless specific performance were

‘equired. United States v. Brown, 500 F. 2d 375, 378 (4th Cir.

1975). A defendant who relies on promises ‘‘has a right to have

those promises fulfilled,’’ Palermo v. Warden, Green Haven

State Prison, 545 F. 2d 286, 296 (2d Cir. 1976), through specific

performance, Petition of Geisser, 554 F. 2d 698, 706 (5th Cir.

1977): the opportunity to replead is an unrealistic remedy. Surely,

the ‘‘opportunity’’ to replead to five new counts and be sentenced

consecutively on them is no remedy at all. Petitioner has never

rescinded his part of the bargin, he has merely sought to hold

the Government to its, and to have the Court properly impose

sentence.

PETITIONER IS ENTITLED TO A HEARING TO

ADDRESS THE DISPUTED FACTS OF THE

LACK OF OBJECTIVE CRITERIA JUSTIFYING

THE PROSECUTOR’S REINDICTMENT

AND/OR THE COURT’S SIGNIFICANTLY HAR-

SHER SENTENCE.

13

Donald Gilbert Smith is entitled to relief from his sentence if

that sentence is significantly harsher without there being objec-

tive, neutral facts on the record to dissipate both the realistic

likelihood and the actuality of vindictiveness by either the pro-

secution or the Court. Blackledge v. Perry, 417 U.S. 21 (1974);

North Carolina v. Pearce, 395 U.S. 711 (1969).

The new counts and harsher sentence, standing by

themselves, create a prima facie case of vindictiveness (and

reasonable apprehension thereof) by the prosecution and/or the

Court for Smith’s having exercised his procedural right to an ex-

planation of the sentence he exposed himself to by pleading

guilty in 1974. An evidentiary hearing at which Smith can offer

proof, of prosecutorial vindictiveness and of the lack of suffi-

cient objective criteria concerning conduct occurring after the

first sentence which was known to and relied upon by the Judge

in imposing the new sentence, is therefore the minimum re-

quired. Once this likelihood of vindictiveness is established, the

Government bears the heavy burden of justifying its actions and

those of the Court by proving valid neutral facts alone led to the

reindictment and the harsher sentence. Those facts must affir-

matively appear on the record and must dispel the likelihood of

vindictiveness which Petitioner has established. United States v.

Andrews, supra. At the very least, the Government should be

required to explain, and if the explanation is inadequate, Peti-

tioner is entitled to relief.

Under Rule 8, Section 2255 Motions, a hearing must be held

unless the files and record ‘‘conclusively show’’ that the peti-

tioner is warranted relief ‘‘under no circumstances.’’ Fontaine

v. United States, 411 U.S. 213, 215 (1973). Smith’s proof that

no new facts of the alleged crimes which can be detailed on the

record were known to the Government between the plea bargain

of 1974 and the indictment of 1977 would entitle him to relief.

Also, it is necessary for the judge to name the new information,

not known to him at the first sentencing and developed from

Defendant’s conduct after the sentencing, which justifies the

new sentence, beyond the statement that five new convictions

were involved.

14

The fact of the reasonable apprehension and/or actuality of

vindictiveness is the essence of the due process violation claimed

by Smith. E.g., Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978); United States v. Andrews, supra. The literalistic fact

that Smith was convicted of more offenses, despite it being for

the same known conduct, is no answer. The ‘‘ante’’ was increas-

ed for Petitioner for no identifiable reason - certainly none in

the records or files - other than his pursuing his remedies. The

realistic likelihood of vindictiveness required a hearing, and a

distinction between underlying offenses and charges being

made.

IV.

THESE ISSUES ARE PROPERLY RAISED BY A

SECTION 2255 MOTION.

Section 2255 provides a remedy for offenders seeking correc-

tion of their sentences. Section 2255 is neither a substitue for ap-

peal nor is it a means to relitigate an appeal. Section 2255 is

available to litigate issues upon which a full and fair considera-

tion has not yet occurred. Kaufman v. United States, 394 U.S.

217 (1969).

An analysis of the appellant’s brief and the Court’s opinion in

Case No. 77-5281, United States v. Smith, 584 F. 2d 759 (6th

Cir. 1978), demonstrates that none of the issues here presented

was given the kind of full and fair consideration which preclud-

ed their being advanced at this time. Defendant’s appellate

counsel attacked the reindictment on Counts I-V on the grounds

of double jeopardy. Prosecutorial vindictiveness was not raised.

Neither was judicial vindictiveness in sentencing raised. No rul-

ing on those issues was reached in the Court’s opinion. Defen-

dant had attempted, inartfully, to raise these issues and that of

specifically performing the plea bargain, but the questions were

never truly briefed until Motion for Rehearing was filed. Thus,

Defendant did not waive his ability to raise these issues; neither

15

were they fully litigated nor considered by the Court in its opi-

nion.

The only full briefing of these issues was never utilized by a

Court to consider the claim and reject it on its merits. Denials of

rehearing and of certiorari in no way amount to full and fair

consideration on the merits comparable to appeal. These issues

are just now being litigated. Only if disposition of the precise

points raised in the 2255 motion had occurred by an appellate

court deciding the issue against the Defendant is the motion not

well taken. Kaufman, supra at 230; Stephens v. United States,

341 F. 2d 101 (10th Cir. 1965); United States v. Sorenson, 308 F.

Supp. 1268, 1271 (E.D. N.Y. 1970) (adjudication on the merits

required). The benefit of counsel and argument are deemed

necessary to assure painstaking consideration and full examina-

tion of the issues. Tooisgah v. United States, 186 F. 2d 93 (10th

Cir. 1950); see DiAngelo v. United States, 406 F. Supp. 880

(E.D. Pa. 1976).

While it has not been asserted as a ground of error, it

should be noted that the previous remand of this Court on

November 22, 1976, contained the following instruction:

To vacate the sentence imposed, to set aside the plea of

guilty entered by appellant as hereinabove set forth, and

to permit him to enter a new plea to the within charge.

On December 29, 1976, The Defendant’s conviction and

sentence were vacated.

Before a new plea was entered, the 1974 indictment was

dismissed, and on January 31, 1977, a new indictment was

returned to which appellant pleaded not guilty to all

counts. Since appellant’s sentence and plea were vacated

and a new plea of not guilty to identical charges was

entered, it is clear that the mandate of this Court was car-

ried Out. 584 F. 2d at 764. (emphasis added).

This summary dismissal of the ground for error does not qualify

as previous hearing Heard v. United States, 390 F. 2d 866 (D.C.

Cir. 1968).

16

CONCLUSION

Petitioner was resentenced in a manner specifically disap-

proved of in North Carolina v. Pearce, supra, since no facts in

support of harsher sentence exist or are noted on the record.

Petitioner was reindicted after successful prosecution of a

Section 2255 Motion on a ground recognized in United States v.

Timmreck, supra, not to permit vacating a conviction. Further-

more, the reindictment violated the Sixth Circuit’s own stan-

dards for prosecutorial vindictiveness, iterated in United States

v. Andrews, supra, but not applied for Petitioner’s benefit by

the Sixth Circuit herein.

At the very least, if the fourfold sentence for identical

criminal activity is not an outright Constitutional violation,

Petitioner is entitled to a hearing to prove the existence of vin-

dictiveness and right-chilling activity.

The conflicts within the Sixth Circuit itself and with this

Court’s standards in the Pearce series of cases militate toward

granting the requested Writ of Certiorari.

Respectfully submitted,

WHITAKER & REILLY

Attorneys at Law

73 East Mill Street, Suite 300

Akron, Ohio 44308

Telephone: (216) 762-0287

WILLIAM T. WHITAKER

Attorney for Petitioner

17

PROOF OF SERVICE

I hereby certify that a copy of the foregoing was sent by First

Class United States Mail this 15th day of December, 1980, to

William C. Bryson & Terence J. Lynam, Attorneys, Depart-

ment of Justice, Washington, D.C. 20530.

WILLIAM T. WHITAKER

Attorney for Petitioner-Appellant

APPENDIX A Al

FILED

SEPT. 15, 1980

No. 79-5422

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DONALD GILBERT SMITH

Petitioner-Appellant, :

V. : ORDER

UNITED STATES OF AMERICA

Respondent-Appellee, :

Before WEICK and CELEBREZZE, Circuit Judges and

JOINER, District Judge.*

Upon consideration of the briefs, appendix and oral

arguments of counsel, it is ordered that the judgment of the

District Court denying the motion of the petitioner-appellant

Smith to vacate sentence pursuant to Section 28 USC 2255, be

and it is hereby affirmed for the reasons stated in the Memoran-

dum and Order of District Judge Krupansky.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

*Honorable Charles W. Joiner, United States District Judge

for the Eastern District of Michigan, sitting by designation.

APPENDIX B BI

FILED

OCT. 31, 1979

THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, ) CIVIL ACTION

Plaintiff-Respondent, ) NO. C79-809A

v. )

DONALD GILBERT SMITH, )

Defendant-Petitioner, ) ORDER

KRUPANSKY, J.

By motion filed October 1, 1979, petitioner, Donald Gilbert

Smith (Smith) seeks reconsideration of this Court’s Order of

September 20, 1979 denying his petition to vacate, modify or

correct sentence pursuant to 28 U.S.C. 2255.

Petitioner’s motion fails to direct the Court’s attention to any

argument or authority not previously considered. It is therefore

the conclusion of this Court now, as it was on September 20,

1979, that an examination of the record in this proceeding con-

clusively demonstrates that the increase in Smith’s sentence

upon retrial was not motivated by vindictiveness on the part of

the sentencing court. As this Court stated in its Order denying

Smith’s petition to vacate his sentence:

“‘athough in the aggregate, Smith’s sentence upon retrial

was significantly harsher than his initial sentence, the in-

crement reflects the fact that upon retrial, Smith was con-

victed of five additional crimes:

* + *

...the aggregate increase in sentence was due to the fact

that, upon retrial, Smith was sentenced on five additional

counts.”’

See, United States of America v. Donald Gilbert Smith, Case

No. C79-809A (N.D. Ohio September 20, 1979), slip. op. at 5.

B2

Accordingly, petitioner’s motion for reconsideration is

hereby denied.

IT IS SO ORDERED.

/s/ Robert B. Kraupansky

United States District Judge

APPENDIX C

SEPT. 21, 1979

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, ) No. C79-809-A

Plaintiff-Respondent, )

v. )

DONALD GILBERT SMITH, )

Defendant-Petitioner, ) ORDER

In accordance with the Memorandum and Order herein on

Sept. 20, 1979,

IT IS ORDERED that the motion of defendant-petitioner to

modify, vacate or correct sentence, pursuant to Title 28, Sec.

2255, U.S.C. is hereby denied.

/s/ Robert B. Kraupansky

ROBERT B. KRUPANSKY

United States District Judge

Cl

APPENDIX D

SEPT. 20, 1979

THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, ) CIVIL ACTION

Plaintiff-Respondent) No. C79-809-A

)

v.

= —=— =

DONALD GILBERT SMITH, MEMORANDUM

Defendant-Petitioner, ) AND ORDER

KRUPANSKY, J.

This is a proceeding upon a Motion to Vacate, Set Aside or

Correct Sentence instituted by the petitioner, Donald Gilbert

Smith (Smith), pursuant to 28 U.S.C. 2255.

A review of the record in this proceeding discloses the

following facts. On September 26, 1974, Smith was in-

dicted on a six-count indictment; the first count charging

conspiracy in violation of 21 U.S.C. (sec.) 841 and 846 and

the remaining five counts charging substantive offenses of

possession with intent to distribute and distribution of con-

trolled substances, in violation of 21 U.S.C. (sec.) 841 (a)

(1). On December 9, 1974, Smith voluntarily entered a plea

of guilty to Count VI of the indictment, and on February

12, 1975, the remaining five counts were dismissed. Also

on February 12, 1975, Smith was sentenced by this Court

to a four-year prison term and three years of special

parole. See, United States v. Smith, Case No. CR74-427

(N.D. Ohio, February 12, 1975).

On appeal, the Sixth Circuit Court of Appeals found the

judgment of conviction defective for failure of the trial court to

advise the defendan. of the mandatory special parole term re-

quired to be imposed pursuant to 21 U.S.C. (sec.) 841 (b) (1) (B)

and remanded the case to this Court with instructions to vacate

DI

D2

the guilty plea and judgment and sentence imposed thereon and

**to permit (Smith) to enter a new plea to the within charge.”’

See, Smith v. United States, Case No. 76-1560 (November 22,

1976), 546 F. 2d 424 (6th Cir., 1976). Thereafter, on December

29, 1976, pursuant to the mandate of the Sixth Circuit Court of

Appeals, the plea of guilty entered by the defendant on

December 9, 1974 and the sentence imposed thereon were

vacated by this Court. See United States v. Smith, Case No.

CR74-427 (N.D. Ohio, December 29, 1976).

On January 29, 1977, a superseding six-count indictment was

filed with this Court charging Smith with the same criminal

violations as charged in the original indictment, United States v.

Smith, CR77-18, and on January 31, 1977, the original indict-

ment was dismissed.

Smith then entered pleas of ‘‘not guilty’’ to all six counts con-

tained in the superseding indictment, and on March 30, 1977,

following a trial by jury, a verdict was returned finding him

guilty on all six counts. Thereafter, on April 22, 1977, Smith

again appeared before this Court for sentencing. He was

sentenced to an aggregate of fifteen years imprisonment and

twelve years of special parole. See, United States v. Smith, Case

No. CR77-18 (N.D. Ohio, April 25, 1977). On appeal, Smith’s

convictions were affirmed by the Sixth Circuit Court of Appeals

on August 11, 1978. See United States v. Smith, 584 F. 2d 759

(6th Cir., 1978) cert. denied, ___U.S._____ (April 23, 1979).

Smith has now petitioned this Court to ‘‘vacate, modify or

correct’’ the sentence imposed by this Court on April 25, 1977.

In support of his petition, Smith argues that the sentence is un-

constitutional because it is a significantly harsher sentence than

the one originally imposed on February 12, 1975. Relying on

North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.

Ed. 2d 656 (1969), Smith asserts that the harsher sentence im-

posed on him following his successful appeal of the original

sentence is the result of ‘‘vindictiveness’’ and violative of the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution.

In North Carolina v. Pearce, supra, the petitioner-Rice had

pled guilty to four separate charges of second-degree burglary

D3

and he was sentenced to prison terms aggregating ten years.

These convictions were subsequently set aside, however, in a

state coram nobis proceeding on the ground that Rice had not

been accorded his constitutional right to counsel. He was then

tried upon three of the charges, convicted and sentenced to

prison terms aggregating twenty-five years. The district court

granted habeas corpus relief concluding that in imposing a

significantly harsher sentence upon retrial, the sentencing court

was ‘‘punishing petitioner Rice for his having exercised his

postconviction right to review.’’ In affirming the district court’s

grant of habeas corpus relief, the United States Supreme Court

condemned the unexplained three-fold increase in Rice’s

sentence upon retrial and held that the Due Process Clause of

the Fourteenth Amendment required that vindictiveness on the

part of the sentencing judge against a defendant for having suc-

cessfully attacked his first conviction must play no part in the

sentence he receives following his subsequent conviction upon

retrial.

North Carolina v. Pearce, supra, is inapppsite to the case at

bar. The Pearce Court, at 2075, framed the precise issue before

it to be:

‘*the Constitutional limitations upon the imposition of a

more severe punishment after conviction for the same of-

Jfense upon retrial.’’ (emphasis added).

Unlike the petitioners in Pearce, Smith was not given a harsher

sentence upon retrial for the same offense. Smith’s initial

sentence of February 12, 1975 (four-year prison term and three

years of special parole) was imposed by reason of his conviction

(following a voluntary guilty plea) on only one count of the

original indictment; Count VI. The remaining counts had been

dismissed. The Court’s Judgment and Order of Commitment

entered February 12, 1975 reads as follows:

IT IS ADJUDGED that the defendant upon his plea of

guilty and the Court being satisfied there is a factual basis

for the plea has been convicted of the offense of having

knowingly possessed with intent to distribute and having

distributed lysergic acid diethylamide, a Schedule 1 con-

D4

trolled substance, in violation of Title 21, Sec. 841 (a) (1),

U.S.C. as charged in Count VI of the Indictment...

IT IS ADJUDGED that the defendant is guilty as charged

and convicted.

IT IS ADJUDGED that the defendant is hereby commit-

ted to the custody of the Attorney General or his authoriz-

ed representative for imprisonment for a period of four (4)

years.

IT IS FURTHER ORDERED that the defendant is fined

the sum of Ten Thousand ($10,000.00) Dollars, said fine to

be a committed fine.

IT IS FURTHER ORDERED that a special parole term of

three (3) years is imposed under the provisions of Title 21,

Sec. 841 (a) (1), U.S.C.

By contrast, the sentence imposed on Smith on April 25, 1977

was imposed by reason of his convictions (following a jury trial)

on all six counts of the superseding indictment. In its Judgment

and Order of Committment issued on April 25, 1977, this Court

stated:

IT IS ADJUDGED that the defendant upon his plea of not

guilty and a verdict of guilty has been convicted of the of-

fenses of having conspired to distribute controlled

substances, in violation of Title 21, Sec. 841 (a) (1),

U.S.C., as charged in Count I of the Indictment, and of

having possessed controlled substances with intent to

distribute, in violation of Title 21, Sec. 846, U.S.C., as

charged in Counts II, III, IV, V and VI of the Indictment,

and the Court having asked the defendant whether he has

anything to say why judgment should not be pronounced,

and no sufficient cause to the contrary being shown or ap-

pearing to the Court.

IT IS ADJUDGED that the defendant is guilty as charged

and convicted.

* * *

IT IS ADJUDGED that the defendant is hereby commit-

D5

ted to the custody of the Attorney General or his authoriz-

ed representative for imprisonment for a period of three

(3) years on Count I, plus a special parole term of two (2)

years pursuant to Title 21, Sec. 841 (b) (1) (A), U.S.C., two

(2) years on Count II, plus a special parole term of two (2)

years, to run consecutively to Count I; two (2) years on

Count III, plus a special parole term of two (2) years, to

run consecutively to the sentences imposed on Counts I

and II; two (2) years on Count IV, plus a special parole

term of two (2) years, to run consecutively to the sentences

imposed on Counts I, II and III; two (2) years on Count V,

plus a special parole term of two (2) years, to run con-

secutively to the sentences imposed on Counts I, II, III and

IV; and four (4) years on Count VI, plus a special parole

term of two (2) years, and a fine in the amount of Ten

Thousand ($10,000.00) Dollars, to run consecutively to the

sentences imposed on Counts I, II, III, IV and V.

Consequently, although in the aggregate, Smith’s sentence

upon retrial was significantly harsher than his initial sentence,

the increment reflects the fact that upon retrial, Smith was con-

victed of five additional crimes.

Moreover, it bears emphasis that that portion of the sentence

imposed on April 25, 1977 which relates to Smith’s conviction

on Count VI of the superseding indictment is even somewhat

more lenient than the sentence imposed on February 12, 1975

with respect to Smith’s prior conviction on that same count.

Thus, it is clear that Smith was not given ‘‘a more severe punish-

ment after conviction for the same offense upon retrial.”’

In summarizing the precedents controlling this issue, the

United States Supreme Court, in Blackledge v. Perry, 417 U.S.

21, 94S. Ct. 2098, 40 L. Ed. 628 (1974), stated at 2102:

‘*The lesson that emerges from Pearce, Colten and Chaffin

is that the Due Process Clause is not offended by all

possibilities of increased punishment upon retrial after

[successful] appeal but only by those that pose a realistic

likelihood of vindictiveness.’’

D6

To guard against the possibility of vindictiveness entering into

the resentencing process, the Pearce Court went on to hold that:

‘In order to assure the absence of such a motivation, we

have concluded that whenever a judge imposes a more

severe sentence upon a defendant after a new trial, the

reasons for his doing so must affirmatively appear.’’

It clearly appears from the record in this proceeding that the in-

crease in Smith’s sentence upon retrial was not motivated by

vindictiveness on the part of the sentencing court. Rather, the

aggregate increase in sentence was due to the fact that, upon

retrial, Smith was sentenced on five additional counts. Further-

more, the sentence imposed with respect to each count is within

the statutory limit permissible for that paricular crime. Under

these circumstances, the imposition of a more severe sentence

upon retrial following a successful appeal of the original

sentence infringes no constitutional rights.

As a second ground for his motion, Smith challenges his rein-

dictment on all six counts following this Court’s order vacating

his initial guilty plea to Count VI. It is Smith’s contention that

since Counts I through V of the original indictment had

previously been dismissed, and since the Court of Appeals

ordered that he be permitted to enter a new plea to the ‘‘within

charge’’, he should not have been reindicted on all six counts

but rather should have been permitted to enter a new plea to

Count VI only.

In Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068,

1074, 22 L. Ed. 2d 227 (1969), the United States Supreme

Court, while recognizing that new issues could, under proper

circumstances, be raised in a (sec.) 2255 motion, made it clear

that a federal court before which a (sec.) 2255 motio‘. is pending

need not entertain a collateral attack on a prior federal court’s

determination of the same issue. The Court stated at 2074, n. 8:

‘*Similarly, where the [federal] trial or appellate court has

had a ‘say’ on a federal prisoner’s claim, it may be open to

the (sec.) 2255 court to determine that on the basis of the

motion, files and records, the prisoner is entitled to no

relief.’’

D7

See also, Stephan v. United States, 496 F. 2d 527 (6th Cir.

1974), cert. denied, 423 U.S. 861 (1974); Van Buskirk v. United

States, 343 F. 2d 158 (6th Cir., 1965). A review of the record in

this case discloses that upon appeal of Smith’s convictions on all

six counts of the superseding indictment, the Sixth Circuit

Court of Appeals sua sponte raised the issue advanced here by

petitioner and disposed of it. In United States v. Smith, 584 F.

2d 759 (6th Cir., 1978) the Court stated at 764:

‘*While it has not been asserted as a ground of error, it

should be noted that the previous remand of this Court on

November 22, 1976, contained the following instruction:

To vacate the sentence imposed, to set aside the plea of

guilty entered by appellant as hereinabove set forth, and

to permit him to enter a new plea to the within charge.

On December 29, 1976, the defendant’s conviction and

sentence were vacated.

Before a new plea was entered, the 1974 indictment was

dismissed, and on January 31, 1977, a new indictment was

returned to which appellant pleaded not guilty to all

counts. Since Appellant’s sentence and plea were vacated

and plea were vacated and a new plea of not guilty to iden-

tical charges was entered, it is clear that the mandate of

this Court was carried out.

The convictions are hereby AFFIRMED.”’

It is clear from the above-quoted language that the Sixin

Circuit Court of Appeals, of its own volition, considered

the propriety of reindicting Smith on all six counts. In con-

cluding, however, that its prior mandate had been ‘‘carried

out,’’ the Court clearly indicated that it found nothing ob-

jectionable to Smith’s reindictment. Accordingly, peti-

tioner is not now entitled to relitigate that same issue.

Alternatively, inasmuch as petitioner relies on

Blackledge v. Perry, supra, the Court notes that the case

does not control the case at bar. In Blackledge, the United

States Supreme Court applied the principles enunciated in

North Carolina v. Pearce, supra, to prohibit from reindic-

D8

ting a convicted misdemeanant on a felony charge after the

defendant had initiated appellate review of his misde-

meanor conviction. The Court emphasized the possibility

of vindictiveness on the part of the prosecutor entering in-

to the indictment process. However, in Blackledge, after

appealing his initial conviction, the defendant was indicted

on a different and more serious charge. In the instant case,

after having his initial conviction set aside, Smith was rein-

dicted on the same charges on which ne had originally been

indicted. Thus, the potentiality for vindictiveness on the

part of the prosecutor found to exist in Blackledge is not

present in the instant case.

As further grounds for his motion, petitioner asserts

that (1) the trial court’s instruction to the jury on entrap-

ment constituted prejudicial error, and; (2) his reindict-

ment on all six counts caused him to be placed in double

jeopardy with respect to Count VI. These arguments were

also considered and rejected by the Sixth Circuit Court of

Appeals. See, United States v. Smith, 584 F. 2d 759,

761-763 (6th Cir., 1978), cert. denied, ___U.S.___ (April

23, 1979). Accordingly, this Court will not entertain a col-

lateral attack on that court’s determination of those issues.

The Court has considered petitioner’s other contentions

and finds them to be equally without merit.

In view of the foregoing and following a comprehensive

review of the motion, files and records in this proceeding,

the Court concludes that the petitioner is entitled to no

relief. The Motion to Vacate, Modify or Correct Sentence

is therefore denied.

IT IS SO ORDERED.

/s/ Robert B. Kraupansky

United States District Judge