Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 1189 Bernard M. Decker, Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 74 C 342 Julius J. Hoffman, Judge. Appeal from the United States District Court for the Southern District of Illinois, Northern Division - No. 74 3 Civ RI Robert D. Morgan, Judge.
Hastings, Senior Circuit Judge, Cummings and Pell, Circuit Judges.
The principal issue raised by these three appeals is founded on United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), and basically is that sentences were enhanced by consideration of prior unconstitutionally obtained convictions. The enhancing of sentence doctrine had been enunciated in Burgett v. Texas, 389 U.S. 109, 115, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), although that case involved a conviction based on a tainted prior conviction. Enhancement of sentence was directly involved as an issue in Tucker and upon the facts before it the court remanded for reconsideration of the sentence. The underlying rationale was not particularly new; thus, for example, in Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948), a conviction was reversed because the "prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue."
A principal theme in post- Tucker cases is that the prior convictions were obtained in situations in which the defendant was not represented by counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963).
As background for the consideration of the individual appeals here involved we note some of the various applications of the Tucker -based enhancement principle since the issuance of that opinion.*fn1
United States v. Lufman, 457 F.2d 165 (7th Cir. 1972), a felon-firearms case, 18 U.S.C. App. § 1202(a), did not involve an enhancement of sentence but since the pyramiding aspect of Burgett, crystalized by Tucker, appears in some circuits to march arm in arm with the impact of a tainted conviction on obtaining a later conviction, we do note the refutation in Lufman of the Government's contention that the defendant should have attacked his conviction by a writ of coram nobis prior to indictment in the present case. "Such a [constitutionally invalid] conviction is infirm from its incipiency." Id. at 168 n.3. Further, a significant principle in this type of case, again laid down in a footnote, is the refutation of the Government's claim that since the docket entries of the prior conviction were silent as to whether the defendant was represented by counsel, although defendant submitted an affidavit stating that he was not and was not advised that he had a right to counsel, he should be held to strict proof and should carry the burden of that proof. "This is incorrect. Once a defendant raises the constitutional invalidity of a prior conviction, the government has the heavy burden of proving absence of constitutional defect or waiver of rights. . . . When the record of a prior conviction is silent as to the presence of counsel, it is presumed that the Sixth Amendment rights of the defendant have been violated. The government must affirmatively prove otherwise. . . . As the court in Burgett added, 'Presuming waiver of counsel from a silent record is impermissible.'" (Citations omitted.) Id. at 167 n.2. Accord, Woods v. United States, 457 F.2d 185 (7th Cir. 1972).
United States v. Janiec, 464 F.2d 126 (3d Cir. 1972), goes beyond the factual situation of Tucker in which the misinformation was of constitutional magnitude and was given specific consideration by the sentencing judge to that in which there is only a possibility that the sentencing judge based the sentence on misinformation of constitutional magnitude, the possibility existing because the judge had chosen not to disclose the defendant's list of prior convictions which was before him. In such a situation, according to the opinion, a balancing test should be utilized. In the case before it under the circumstances outlined above, the Third Circuit remanded for resentencing inasmuch as the sentencing court did not state that prior convictions played no part in its decision and it was therefore impossible for the defendant to guard against a sentence founded at least in part upon misinformation of a constitutional magnitude. Id. at 132. It is also to be noted that the Janiec court reached the same result this court did in United States v. Miller, 495 F.2d 362 (7th Cir. 1974), that while the entire presentence report need not be made available to the defendant, with discretion being exercised on a case by case basis, if a judge "hereafter" regards any information as sufficiently important to affect the sentence the substance should be made available to the defendant or his counsel. In Janiec, this result was related specifically to the prior conviction record.
In Rogers v. United States, 466 F.2d 513 (5th Cir. 1972), cert. denied, 409 U.S. 1046, 34 L. Ed. 2d 498, 93 S. Ct. 546, the record*fn2 failed to disclose that the sentencing judge gave explicit consideration to the prior conviction. In denying relief, the district court specifically certified that the sentence was not enhanced by the existence of the prior conviction. The Fifth Circuit affirmed since the present sentence was not founded upon a prior invalid conviction. In a footnote, the court also found it significant that two co-defendants, who presumably made no claim of enhancement, had received identical sentences.
The same circuit had in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972), a situation in which the district court had not had an opportunity to pass upon the Tucker claim that three prior convictions were unconstitutionally counselless but in which the claim was based only upon Lipscomb's assertions rather than, as in Tucker, upon a full adjudication of unconstitutionality of the prior convictions in the state courts. The court held this differentiation of no significance and remanded for further consideration under the following guidelines. The district court should review the records involved in the conviction claimed to have been enhanced and in so doing should assume the prior convictions to be invalid. The district court without regard to these convictions should determine whether the sentence given in the present conviction was appropriate. If so an order should be entered to that effect. If, however, without regard to the prior convictions, the sentence given would have been inappropriate, then a hearing should be held to allow the defendant to present evidence on his claim that the prior convictions were unconstitutional under Gideon. If the district court is convinced of the validity of the claim after such a hearing, then resentencing should follow.
In McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972), cert. denied, 411 U.S. 949, 36 L. Ed. 2d 411, 93 S. Ct. 1933 (1973), the judge before whom the § 2255 petition was filed had also been the sentencing judge. In denying the petition, which asserted that the sentencing judge had given explicit consideration to three prior felony convictions which rested upon uncounselled guilty pleas, the sentencing judge expressly stated that he "was and still is of the opinion that regardless of any invalidity or absence of previous convictions," the sentence given was appropriate. The Eighth Circuit in affirming denial of relief distinguished Tucker where a remand had occurred despite the claim that it would be pointless, indicating that in view of the express statement of the sentencing judge remand in McAnulty would indeed be pointless.
Mitchell v. United States, 482 F.2d 289 (5th Cir. 1973), confirmed that which was implicit in Lipscomb, supra, namely that the defendant in the Tucker situation need neither exhaust state remedies by returning to the state where the challenged conviction occurred nor return to the federal court in the state where convicted and bring a § 2255 attack. In addition, the court held that it is not necessary in order to prevail to show that the consideration of the prior invalid sentences enhanced the present sentence but only that there was consideration thereof. The fact that the defendant at the time of sentencing had admitted the correctness of the prior convictions was held to be just that and not to be an admission of guilt on those occasions nor a waiver of right to attack their constitutional validity. The court also addressed itself at some length to the question of burden of proof, holding on the principal issue that when a convicted defendant attacks collaterally prior convictions on the Gideon ground, and was indigent at the time of the prior convictions, and the record shows that he was not represented by counsel, or the record is silent on the matter, then the party defending the prior convictions has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel.*fn3
In Brown v. United States, 483 F.2d 116 (4th Cir. 1973), the court while remanding for further proceedings and while approving generally the guidelines laid down in Lipscomb, supra, did reach a significantly different result at the point at which a district court has determined that there was no counsel in prior convictions in state cases, at least those in states other than the one in which the federal court was sitting. Drawing a distinction between the recidivist type of situation, where the proof of the prior conviction was an essential element in the proof of the present crime, the court took the position that in the § 2255 case the prior convictions should first be attacked in the court where they occurred. Mitchell, supra, which reached the opposite conclusion on exhaustion, although reported in an earlier volume of the Federal Reporter, was actually filed subsequent to Brown. The court in Mitchell in part relied upon Martinez, supra, note 1, although that case did involve the second offender, rather than the present enhancement situation. Mitchell was a § 2255 proceedings. Judge Craven dissented in Brown arguing that the comparison between the recidivist and the § 2255 situations was a distinction without a difference. If the majority opinion in Brown on this point is correct it might appear that references to "convictions void under Gideon " should be rephrased to "convictions voidable under Gideon."
The Tenth Circuit without extended discussion in United States v. Green, 483 F.2d 469, 470-71 (10th Cir. 1973), cert. denied, 414 U.S. 1071, 38 L. Ed. 2d 477, 94 S. Ct. 583, found the Tucker claim without merit where the sentencing ...