IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20550
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CLIVE CLARK, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
February 8, 2000
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant James Clive Clark, Jr. (Clark) pleaded guilty to one count of possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). As a result of his three prior
state drug convictions, Clark was sentenced in December, 1992, to a mandatory minimum term of
fifteen years’ imprisonment under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §
924(e)(1). Clark appealed and in January, 1994, this Court affirmed his conviction and sentence. On
April 23, 1997, Clark filed the instant motion for post-conviction relief under 28 U.S.C. § 2255,
alleging that his sentence was enhanced under the ACCA on the basis of state convictions that were
constitutionally invalid because the evidence of his guilt was insufficient. The district court dismissed
Clark’s motion without prejudice on the ground that Custis v. United States, 114 S.Ct. 1732 (1994),
precluded Clark from thus challenging the prior state convictions that were used to enhance his
current sentence. Clark moved for reconsideration of this order or alternatively, for a certificate of
appealability (COA). The district court denied both motions. Clark then filed an application for a
COA in this Court, alleging that the district court misinterpreted Custis. This Court granted a COA
on that issue. We conclude that the district court erred in finding a jurisdictional impediment to
Clark’s challenge to the prior state convictions used to enhance the federal sentence he is currently
serving under the ACCA. Therefore, we vacate the district court’s dismissal of Clark’s section 2255
motion and remand for further proceedings consistent herewith.
Facts and Proceedings Below
On January 13, 1983, a Texas state jury convicted Clark in Tarrant County District Court of
three separate offenses occurring in January and February, 1982, for delivery of a controlled
substance, lysergic acid diethylamide (LSD). For each o ffense, the court sentenced Clark to five
years in t he Texas Department of Corrections (TDC), suspended for ten years probation, and a
$15,000 fine, with the sentences running concurrently. Clark was represented by counsel in the state
court proceedings. On August 16, 1986, Clark’s probation was revoked for failure to report to his
probation officer. At the probation revocation hearing, at which he was represented by counsel, Clark
was ordered to serve five years in the TDC. On February 18, 1987, he was paroled to Harris County,
Texas, with a scheduled parole expiration date of February 6, 1991. Clark did not appeal the state
convictions or his probation revocation.
On August 9, 1990, while still on parole, Clark was arrested by undercover agents of the Drug
2
Enforcement Agency (DEA) for trafficking in marihuana and carrying a semiautomatic Baretta .25
millimeter caliber pistol. On July 8, 1991, a federal grand jury in the Southern District of Texas
indicted Clark under 18 U.S.C. § 922(g)1 for one count of knowingly possessing, on or about August
9, 1990, a firearm, which had been shipped in interstate commerce, after he had been previously
convicted on January 13, 1983 of three felonies each punishable for a term exceeding one year. Clark
pleaded guilty to the indictment on December 10, 1991, but the district court allowed him to
withdraw his guilty plea at sentencing because Clark’s potential sentence under the ACCA was
“particularly harsh.” After appointing new counsel to represent Clark, the district court on July 16,
1992, conducted a subsequent sentencing hearing, at which Clark again pleaded guilty to the
indictment.2
On December 17, 1992, the district court sentenced Clark under the ACCA.3 The applicable
1
18 U.S.C. § 922(g) provides in relevant part:
“It shall be unlawful for any person–
(1) who has been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year;
...
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”
2
On June 26, 1991, Clark was also convicted in a Harris County court of illegal
drug trafficking, based on the same August, 1990 transaction as his federal conviction.
The state court sentenced him to fifteen years in the TDC and fined him $50,000.
3
18 U.S.C. § 924(e)(1), the codification of the ACCA, provides in relevant part:
“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
3
sentencing range under the Sentencing Guidelines for Clark’s offense would normally have been
seventy-seven to ninety-six months of incarceration. The ACCA, however, imposes a mandatory
minimum sentence of fifteen years and a maximum of life in prison without parole if a defendant has
three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1).
Clark’s three prior state drug convictions rendered him eligible for punishment under the ACCA.
U.S.S.G. § 5G1.1(b) provides that “[w]here a statutorily required minimum sentence is greater than
the maximum of the applicable guideline range, the statutorily required minimum sentence shall be
the guideline sentence.” Accordingly, the district court sentenced Clark to the minimum mandatory
term of fifteen years as required by the ACCA.4
Clark filed a timely notice of appeal to this Court. Clark’s counsel submitted a brief
withdrawing from the case pursuant to Anders v. California, 87 S.Ct. 1396 (1967), and in January,
1994, we dismissed the appeal on that basis in an unpublished order. See United States v. Clark, No.
93-2033 (5th Cir. Jan. 10, 1994). On September 6, 1996, Clark (represented by his third counsel)
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).”
4
Specifically, the district court sentenced Clark to fifteen years in the custody of the
Bureau of Prisons, with three years of supervised release, and payment of a $50
mandatory assessment. The district court’s sentencing order states: “The court makes the
following recommendations to the Bureau of Prisons: The federal writ has deprived the
defendant of consideration for a state parole hearing. It is the Court’s intent that the
federal sentence run concurrently with the state’s sentence imposed in No. 571728 [the
1991 state sentence, see note 2 supra] and therefore recommends to the Bureau of Prisons
that the Texas Department of Corrections be designated for service of the federal
sentence.” This recommendation seems not to have been followed, as it appears that
Clark has been serving his 1992 federal sentence in the Federal Correctional Institution in
Memphis, Tennessee.
4
apparently filed a state habeas corpus petition for post-conviction relief under TEX. CODE CRIM. P.
11.07, in which he sought to show that none of his three 1983 state convictions was supported by
constitutionally sufficient evidence; the state trial court refused to hold an evidentiary hearing and
recommended that relief be denied; the Texas Court of Criminal Appeals refused to docket the case.
On April 23, 1997, Clark filed the instant motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255.5 He asserted he was serving his 1992 federal sentence at the Federal
Correctional Institution in Memphis, Tennessee. He alleged that (1) the evidence was constitutionally
insufficient to support the 1983 state convictions that were then used to enhance his federal sentence
under the ACCA; and (2) 18 U.S.C. § 922(g) violated the Commerce Clause. He further alleged his
unsuccessful 1996 state habeas attack on his 1983 state convictions and that as a result “[m]ovant
has no further avenue of attack available in state court.” The state habeas records are not in the
record before us and were not before the district court.
In a published memorandum opinion, the district court dismissed Clark’s motion without
prejudice. See United States v. Clark, 996 F.Supp. 691 (S.D. Tex. 1998). The district court held that
Clark’s motion was timely filed under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), but rejected his Commerce Clause challenge to section 922(g) on the ground that this
Court had repeatedly held that statute to be valid. Id. at 692. The district court further held that the
5
28 U.S.C. § 2255 provides in relevant part:
“A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or the laws of the United States . . . or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
5
Supreme Court’s opinion in Custis v. United States, 114 S.Ct. 1732 (1994), precluded the section
2255 challenge to Clark’s 1983 state convictions that were used to enhance his current federal
sentence under the ACCA. See Clark, 996 F.Supp. at 692-94. The distri ct court concluded by
stating:
“Because the constitutionality of defendant’s state convictions may, if appropriate, be
challenged t hrough a § 2254 petition filed in the Northern District of Texas, his §
2255 motion will be dismissed without prejudice to defendant’s right to refile in this
court should any of his state convictions be vacated or otherwise expunged. Id. at
694 (footnote omitted).
The court observed in this connection that “Defendant is currently in federal custody in Tennessee,
and the convicting state court is in the Northern District of Texas.” Id. at 694 n.6. The court did not,
however, find that Clark was (or had been at any time after his federal indictment) in state custody
pursuant to or as a result of the 1983 state convictions, nor did the court recite any facts reflecting
such custody (nor does our review of the record disclose any). While the district court did not
expressly find whether Clark had exhausted his state remedies respecting his 1983 state convictions,
the court appears to have assumed that Clark probably had done so. See id. at 694 n.7 (“Although
defendant has not submitted the state habeas records, he has apparently tried and failed to set aside
his state convictions through a post-conviction state habeas action”).
Clark moved for reconsideration of the order, or alternatively, for a COA, asserting, among
other things, that 28 U.S.C. § 2254 was not available to him to challenge his 1983 state convictions
because he was not in state custody under or as a result of those convictions. The district court
denied both motions. On August 7, 1998, Clark filed an application for a COA with this Court. He
alleged that the district court misinterpreted Custis and requested a COA on the question whether
section 2255 is a proper vehicle for bringing collateral challenges to prior state convictions used to
6
enhance a current federal sentence. On November 19, 1998, this Court granted a COA limited to that
question. We now vacate and remand.
Discussion
We disagree with the district court’s conclusion that Custis has rendered unavailable a section
2255 challenge to constitutionally infirm prior state convictions that have been used to enhance a
federal sentence being currently served where the defendant has exhausted his state remedies and is
not in state custody pursuant to or as a result of the state convictions for purposes of section 2254.
Custis announced only a prohibition on these types of challenges in the context of federal sentencing
hearings. This Court has consistently sanctioned the use of section 2255 motions to attack a federal
sentence being currently served on the ground that it was enhanced on the basis of a constitutionally
invalid prior conviction. We do not read Custis to disturb this principle. Moreover, the ACCA is a
sentencing enhancement statute, and most courts, including the district court here, have construed
it to be inapplicable where the prior enhancing convictions, though in apparent full force on the date
of commission of the underlying section 922(g) offense, are subsequently set aside on constitutional
grounds, and this is so even though they are not set aside until after the ACCA sentence is imposed.
We do not read Custis as otherwise construing the ACCA. If, as is apparently the case here, Clark
has exhausted his state remedies but does not meet the “in custody” requirement of section 2254 as
to the state convictions, then accepting the district court’s reading of Custis would, in the name of
forum reallocation, eviscerate Clark’s substantive right to review of these potentially constitutionally
invalid state convictions. We therefore vacate the district court’s judgment and remand for further
proceedings consistent herewith.
In considering challenges to a district court’s denial of a section 2255 motion, this Court
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reviews the district court’s factual findings for clear error and its conclusions of law de novo. See
United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994); United States v. Woods, 870 F.2d 285,
287 (5th Cir. 1989).
I. The “in custody” requirement and related section 2255 concerns.
As a preliminary matter, we note that Clark satisfies the jurisdictional “in custody”
requirement for challenging the use of his prior state convictions to enhance his current federal
sentence. Federal prisoners seeking relief under section 2255 must be “in custody under sentence of
a court established by Act of Congress” at the time they file their motions. See United States v.
Drobny, 955 F.2d 990, 995-96 (5th Cir. 1992). A parallel custody requirement applies under 28
U.S.C. § 2254.6 If the prisoner fails to satisfy the custody requirement, the court will not have
jurisdiction to hear the motion. See Carafas v. LaVallee, 88 S.Ct. 1556, 1559-60 (1968); Pleasant
v. State, 134 F.3d 1256, 1257-58 (5th Cir. 1998).
In Maleng v. Cook, 109 S.Ct. 1923 (1989) (per curiam), the Suprem e Court held that a
section 2254 petitioner could not attack a prior completed state sentence because “once the sentence
imposed for a conviction has completely expired, the collateral consequences of that conviction are
not themselves sufficient to render an individual