Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division. No. 78-C-4227 -- James L. Foreman, Judge.
Before Pell, Sprecher, and Bauer, Circuit Judges.
On appeal from denial of his motion to vacate sentence, 28 U.S.C. § 2255, Lawary raises two issues. First he alleges that his sentence was improper because the court, at sentencing, failed to make an explicit finding that he would not benefit from sentencing under the Youth Corrections Act, 18 U.S.C. § 5010. Such a finding is mandated by Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974). The court made such a finding ex post facto in dismissing the § 2255 motion, but Lawary argues that this is insufficient. Since Dorszynski was decided four months after Lawary was sentenced, the underlying issue is whether Dorszynski applies retroactively. On this issue four circuits have said no, three circuits have said yes, but that an ex post facto finding at the post sentence proceeding is sufficient, and one circuit has given an unqualified yes.*fn1 This court has applied Dorszynski retroactively in United States v. Donner, 528 F.2d 276 (7th Cir. 1976), but has not expressly ruled on the issue of Dorszynski's retroactivity. Second, Lawary argues that the sentence was improper because the court considered prior convictions in which he had not been represented by counsel. The Government argues that Lawary is precluded from raising the Dorszynski issue, since he raised the same issues once before.
In April of 1973, Lawary was charged in State Court with armed robbery. He pled guilty on October 11 and was sentenced to four to twelve years in the penitentiary. Meanwhile, in August he committed another crime (it may be surmised that he held up a post office) and on January 24, 1974 he pled guilty to assaulting a United States Postal Clerk. He was sentenced for this crime to ten years in prison to run concurrent with the state sentence. This is the sentence challenged in this appeal. At the time of sentencing in 1974 Lawary was 18 years old, but no reference was made during sentencing to the Youth Corrections Act or his eligibility for sentencing under it. At the sentencing hearing the judge asked:
Mr. Lawary, do you have any explanation as to why you were charged in April of last year with armed robbery and then you go out and you commit this one in August? Is there any explanation for that?
The defendant replied "I just needed some money I couldn't get no job or nothing." The judge then said:
Well, Mr. Lawary, the Court has reviewed this presentence report and based upon your performance in school and the fact that you appear to be just totally unmotivated to do any type of or conduct yourself in an orderly, useful manner, I don't feel that I have any choice but to try to help you in some way, which I want to do. The only way that I know to do that is to sentence you to the penitentiary. Now, you are a young man. You are eighteen. But, you have seen more of some parts of life than most people will in a lifetime at eighteen. And here, you've had three commitments already to a penal institution and you were paroled three times and two of them you couldn't make it, isn't that right, Mr. Lawary?
On June 26, 1974 the Supreme Court decided Dorszynski v. United States, supra, reversing 484 F.2d 849 (7th Cir. 1973) and holding that if an eligible defendant is denied sentencing under the Youth Corrections Act, an explicit finding that he would derive no benefit therefrom must be made at sentencing. Relying on this decision Lawary moved on May 29, 1975 to vacate his sentence. In denying the motion on May 18, 1976, Judge Foreman in effect made an ex post facto finding of no benefit. He said:
This Court was fully aware of the Youth Corrections Act and petitioner's eligibility for treatment thereunder at the time of sentencing but determined that petitioner would derive no benefit from such treatment and, consequently sentenced petitioner as an adult. It would serve no useful purpose toward the administration of justice to now bring the petitioner before this Court to explicitly state on the record what this Court implicitly held at the time of sentencing.
Judge Foreman also ruled that Dorszynski should not apply retroactively, citing Marshall v. United States, 389 F. Supp. 729 (E.D.Wis.1975), and Jackson v. United States, 510 F.2d 1335 (10th Cir. 1975). No appeal was taken from the denial of that motion.
On June 12, 1978, Lawary filed a new § 2255 motion, alleging two grounds for relief. First, that the court in sentencing had impermissibly considered prior unconstitutional convictions obtained when he was not represented by counsel. Second, if those unconstitutional convictions had not been considered, the court would have found sentencing under the Youth Corrections Act appropriate. The court's failure to make an explicit no benefit ruling was not raised by Lawary in this motion.*fn2
In denying Lawary's motion on June 29, 1978 Judge Foreman raised that issue sua sponte, and rejected it again, repeating language borrowed from his order denying the first motion. On the Dorszynski issue he said:
At the time of sentencing, the Court made no express finding that the defendant would not benefit under the Federal Youth Corrections Act. Nevertheless, the Court was fully aware of the Act and petitioner's eligibility for treatment thereunder. The Court had determined that petitioner would derive no benefit from treatment under the Act.
On the second issue the court said:
Petitioner also claims the Court errored (sic) by taking into account juvenile adjudications obtained without the benefit of counsel. The Court, however, gave no consideration to these adjudications. Rather, it was more impressed by the fact that petitioner had recently been sentenced for armed robbery in the state court.
The District Court having raised sua sponte the Dorszynski issue of its failure to make explicit no benefit findings, that issue is properly before us on appeal.
The government argues that since Lawary's first § 2255 motion, seeking retroactive application of Dorszynski, was considered and denied by the district court, this second motion, in so far as it raises the same issue, should have been rejected. According to 28 U.S.C. § 2255, "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." This provision was given comprehensive interpretation in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). There the Court made clear that:
The judge is permitted, not compelled, to decline to entertain such an application, and then only if he "is satisfied that the ends of justice will not be served' by inquiring into the merits.
373 U.S. at 12, 83 S. Ct. at 1075. The decision to consider a successive § 2255 motion raising grounds raised before is in the district court's discretion.
The principles governing . . . . denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power and, if the ends of justice demand, the duty to reach the merits.
Sanders v. United States, supra, at 18, 83 S. Ct. at 1079. See United States v. Brown, 207 F.2d 310, 311 (7th Cir. 1953). The cases cited by the government are not to the contrary, but indicate only that when a § 2255 motion has been denied and appealed, a second motion raising the same issues may be dismissed. Cf. United States ex rel. Townsend v. Twomey, 452 ...