United States v. Pettiford
U.S. Court of Appeals for the First Circuit
United States v. Pettiford
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 96-1045
UNITED STATES OF AMERICA,
Appellant,
v.
BRIAN A. PETTIFORD,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich and Bownes, Senior Circuit Judges. _____________________
____________________
James C. Rehnquist, Assistant United States Attorney, with whom ___________________
Donald K. Stern, United States Attorney, was on brief for appellant. _______________
George F. Gormley with whom John D. Colucci and Gormley & Colucci _________________ _______________ _________________
were on brief for appellee.
____________________
November 25, 1996
____________________
ALDRICH, Senior Circuit Judge. In March 1991 ______________________
appellee Brian A. Pettiford (hereinafter defendant) was
convicted of being a felon-in-possession of a firearm in
violation of 18 U.S.C. 922(g)(1). Because he had nine
prior state convictions for violent felonies, he received a
minimum mandatory sentence of fifteen years pursuant to the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e)(1).
In 1994, all but one of the prior convictions were vacated by
the Massachusetts state courts, and in 1995 the district
court granted federal habeas corpus relief under 28 U.S.C.
2255 in the form of a sentence reduction, on the ground
that the ACCA was now inapplicable to the computation. On
the government's appeal, we affirm.
I. Background __________
Approximately two years after his federal
sentencing, defendant requested audiotapes of his earlier
guilty pleas and sentencings in Boston Municipal Court and
Dorchester District Court. He was unsuccessful in obtaining
useful tapes, post, and subsequently attempted to reconstruct ____
the proceedings through the use of affidavits. Ultimately,
the courts vacated eight of the nine convictions. The Boston
Municipal Court judge, finding no record that the trial judge
had engaged in any colloquy with the defendant at the time of
his guilty plea, vacated the convictions on the ground that
the Commonwealth had failed to carry its burden of producing
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a "contemporaneous record affirmatively [showing] that the
defendant waived his rights voluntarily and knowingly," as
required under the federal Constitution and Massachusetts
law. The Dorchester District Court apparently did the same.
On the habeas petition, our district court, taking what
would, initially, seem to us the equitable view, granted the
relief and resentenced defendant to the term served, four and
one half years.
The government appeals, and with indignation: the
state action had been a "windfall;" the government had been
"sandbagged." In view of the fact that the mandatory
enhancement was based entirely upon the state's action in
convicting,1 and not simply a case where enhancement is
permitted for charges with no findings, see, e.g., U.S.S.G. ___ ____
4A1.3(e), to complain of state windfalls and government
sandbagging is strong language. The government criticizes
____________________
1. 18 U.S.C. 924(e)(1) reads:
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
with respect to the conviction under
section 922(g).
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the state's procedure as if the vacated convictions were
federal property, and the defendant as if he were attempting
a trespass. We are induced to start with the opposite
approach. First, however, we must consider a Supreme Court
case, United States v. Custis, 511 U.S. 485, 114 S. Ct. 1732 _____________ ______
(1994), decided after the imposition of defendant's original
sentence and its affirmance on appeal, United States v. _____________
Pettiford, 962 F.2d 74 (1st Cir. 1992). _________
II. United States v. Custis _______________________
In May 1994, the Supreme Court in Custis held that ______
under 924(e), unless a defendant in a federal sentencing
proceeding was claiming a violation of his right to counsel,
he had no right at that time to make a collateral attack on
prior state convictions. 114 S. Ct. at 1738. Rather, the
Court observed at the end of the opinion,
We recognize, however, as did the
Court of Appeals . . . that Custis, who
was still "in custody" for purposes of
his state convictions at the time of his
federal sentencing under 924(e), may
attack his state sentences in Maryland or
through federal habeas review. See ___
Maleng v. Cook, 490 U.S. 488 (1989). 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 1739. The district court, noting this dicta, held, in ___
an extensive opinion, Pettiford v. United States, 1995 WL _________ _____________
464920 (D. Mass. 1995), that defendant's enhanced federal
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sentence was now in violation of the Constitution. The
government has a variety of objections.
III. Jurisdiction ____________
The district court concluded from the Custis dicta ______
that 2255 was the appropriate vehicle by which to proceed.
The government objects on the ground that this section
applies only to prisoners incarcerated "in violation of the
Constitution or laws of the United States." While we
believe, post, that defendant has such a claim, the ____
government's attempt to limit the availability of 2255 that
permeates its case, is surprising. Section 2255 reads as
follows:
A prisoner in custody under sentence
of a court established by Act of Congress
claiming the right to be released upon
the ground that [1] the sentence was
imposed in violation of the Constitution
or laws of the United States, or that [2]
the court was without jurisdiction to
impose such sentence, or that [3] the
sentence was in excess of the maximum
authorized by law, or [4] is otherwise __________________
subject to collateral attack, may move ______________________________
the court which imposed the sentence to
vacate, set aside or correct the sentence
. . . .
(emphasis supplied.) Item 4 stands by itself sufficiently
without our having to resort to the familiar principle that
additional language is presumably separately meaningful
rather than redundant. Indeed, we have previously held that
the fourth prong of 2255 encompasses other than
constitutional or statutory error. See, e.g., United States ___ ____ _____________
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v. DiRusso, 548 F.2d 372, 374-75 (1st Cir. 1976) (noting that _______
2255 is often a vehicle for correcting sentences based upon
errors made by the sentencing judge). However, whether on
constitutional or grounds otherwise subject to collateral
attack, we concur with the district court's recognition of
federal habeas jurisdiction.
IV. Timing of Determination of Criminal History ___________________________________________
18 U.S.C. 921(a)(20), the statute hereto
appertaining, provides in relevant part:
What constitutes a conviction of
such a crime shall be determined in
accordance with the law of the
jurisdiction in which the proceedings
were held. Any conviction which has been
expunged, or set aside or for which a
person has been pardoned or has had civil
rights restored shall not be considered a
conviction for purposes of this chapter
. . . .
The government contends that the past tense phrases "has been
expunged" and "has been pardoned," indicate that only past
offenses vacated prior to the federal proceeding may be
discounted by the court, in effect etching the defendant's
criminal history record in stone as of that moment. We do
not agree. The wording would read equally well if applied to
convictions expunged, etc., subsequent to the federal
sentencing.
Thus with the rule of lenity, see United States v. ___ _____________
Boots, 80 F.3d 580, 588 (1st Cir. 1996), cert. denied, 117 S. _____ ____________
Ct. 263, 65 U.S.L.W. 3265 (U.S. Oct. 07, 1996) (No. 96-5631),
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the government is on the short end. And with the procedural
rule announced in Custis, that it is only after sentence that ______
a defendant may attack the convictions that contributed to
it, what sense would it make to say that he may attack pre-
sentence convictions, but not one whose flaw did not appear
until after the federal sentence? Obviously this is the
situation every time it is defendant who establishes the
flaw. The district court was correct. United States v. Cox, _____________ ___
83 F.3d 336 (10th Cir. 1996). See also United States v. ___ ____ ______________
Bacon, 94 F.3d 158, 162 n.3 (4th Cir. 1996); Young v. Vaughn, _____ _____ ______
83 F.3d 72, 77 (3d Cir.), cert. denied, 117 S. Ct. 333, 65 ____________
U.S.L.W. 3285 (U.S. Oct. 15, 1996) (No. 96-217); United ______
States v. Hofierka, 83 F.3d 357, 364 (11th Cir.), modified on ______ ________ ___________
other grounds on denial of reh'g, 92 F.3d 1108 (11th Cir. __________________________________
1996). No circuit has indicated otherwise.
V. Basis for Vacation of State Convictions _______________________________________
As we have said, defendant's motions to vacate the
state convictions were based on the ground that he had not
been furnished by the courts, before accepting his guilty
pleas, the information necessary for his pleas to be
considered voluntary, a constitutional requirement. See ___
Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States ______ _______ _____________
v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996). For the ________
Boston Municipal Court cases there were no records,
presumably because more than two and a half years had elapsed
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since the plea and they had been destroyed pursuant to
permissive Rule 211A(4). In the Dorchester District Court
there were tapes, but they were unintelligible. One court
demonstrably, and the other apparently, applied the
Massachusetts rule that the burden is on the state to show
the voluntariness of the plea, Commonwealth v. Duquette, 386 ____________ ________
Mass. 834, 841 (1982), and granted the motions to vacate.
This distresses the government, evoking the charges
of windfalls and sandbagging.2 It makes an elaborate
argument, based on the fact that the state courts could have
applied a presumption of correctness and found the plea
hearings valid, see Parke v. Raley, 506 U.S. 20, 31 (1992), ___ _____ _____
and that the Massachusetts courts did not go so far as to
hold the convictions unconstitutional. Putting aside the
fact that the Boston Municipal Court judge specifically found
a Boykin violation, we do not attach consequences to such ______
recondite thinking. The short answer is that Congress chose
to predicate sentence enhancement on state action. Surely it
is not for the federal court to read the statutory language,
"in accordance with the law of the jurisdiction in which the
____________________
2. See illuminating discussion in United States v. Payne, ______________ _____
894 F. Supp. 534, 537 n.7 (D. Mass. 1995). The one year
limitation contained in the recent amendment of 2255 will
diminish this problem. See the Antiterrorism and Effective ___
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1220 (April 24, 1996).
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proceedings were held" as permitting us to conclude that the
Massachusetts lower court decisions were wrongly decided.
The government makes a further point. Before
Custis, it was permissible for a defendant to raise the ______
invalidity of his state convictions at the time of his
federal sentencing. United States v. Paleo, 967 F.2d 7, 11 ______________ _____
(1st Cir. 1992). Because the defendant did not do so, the
government attempts to invoke the rule of cause and
prejudice. See Coleman v. Thompson, 501 U.S. 722, 750 ___ _______ ________
(1991). It presses this particularly because, federalwise,
the burden would have been on the defendant to prove an
inadequate plea colloquy, see United States v. Wilkinson, 926 ___ _____________ _________
F.2d 22, 28 (1st Cir.), cert. denied, 501 U.S. 1211 (1991), ____________
overruled on other grounds by Bailey v. United States, ___ ______________________________ ______ ______________
U.S. ___, 116 S. Ct. 501, 509 (1995), and having no memory on
the subject one way or the other, he would have had no proof.
Our reaction is the opposite of the government's. With no
memory there was no affirmative waiver. Exceptional
circumstances may excuse a delayed making of a claim, Knight ______
v. United States, 37 F.2d 769, 773 (1st Cir. 1994), and ______________
ignorance may be a factor.
Even if Custis is not regarded as retroactive, it ______
indicates the acceptability of this post-sentence proceeding.
We are content to recognize the district court's discretion.
Affirmed. _________
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