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 26, 2002
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
This proceeding under 28 U.S.C. § 2255, in which defendant-
appellant James Clive Clark, Jr. (Clark) attacks his 1992 fifteen
year sentence under the Armed Career Criminal Act of 1984 (ACCA),
18 U.S.C. § 924(e)(1), imposed upon his conviction for a violation
of 18 U.S.C. § 922(g), is now before us again on remand from the
United States Supreme Court.
As reflected in our prior opinion, United States v. Clark, 203
F.3d 358 (5th Cir. 2000), to which we refer for a fuller statement
of the background facts and proceedings, Clark contended in his
section 2255 petition, which he filed in April 1997, that the
necessary three prior convictions used to enhance his 1992 sentence
under the ACCA were constitutionally invalid because they were
supported by no evidence of his guilt. The prior convictions were
rendered in 1983 in a single proceeding in a Texas court in Tarrant
County, Texas, and Clark was sentenced to five years’ imprisonment,
suspended for ten years probation, on each of three separate
offenses of conviction, the sentences to run concurrently. Clark
was represented by counsel in those proceedings. He never filed
any direct appeal of those state convictions. His probation was
revoked in 1986. Clark did not appeal or otherwise challenge his
probation revocation. At the 1986 probation revocation hearing, at
which he was represented by counsel, Clark was ordered to serve
five years in the Texas Department of Corrections (TDC). In 1987
he was paroled from TDC, with a scheduled parole expiration date of
February 6, 1991.
On August 9, 1990 Clark was arrested by Drug Enforcement
Administration agents for trafficking in marihuana and carrying a
pistol. On July 8, 1991 a federal grand jury in the Southern
District of Texas indicted him for the instant section 922(g)
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offense committed August 9, 1990. Clark, represented by counsel,
ultimately pleaded guilty and, based upon his three mentioned 1983
Texas convictions, was sentenced in 1992 by the United States
District Court for the Southern District of Texas to fifteen years
confinement.1 On direct appeal, Clark’s counsel submitted a brief
under Anders v. California, 87 S.Ct. 1396 (1967), and in January
1994 we accordingly dismissed the appeal in an unpublished order.
In September 1996 Clark, through counsel, filed in the Texas courts
a habeas corpus petition for post-conviction relief under Tex. Code
Crim. P. § 11.07, in which he attacked his three 1983 state
convictions as each being supported by constitutionally
insufficient 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. This
1996 state habeas is the first attack made by Clark in any court on
any of his three 1983 Texas convictions.
Thereafter, in April 1997 Clark filed the instant section 2255
proceeding in the convicting district court in which, among other
unrelated complaints, he challenged his 1992 fifteen year sentence
under the ACCA on the basis that each of the three predicate
1
In June 1991 Clark was convicted in Texas court of illegal
drug trafficking based on the August 9, 1990 transaction and was
sentenced to 15 years in the TDC.
Clark has been, and is apparently still, serving his 1992
federal sentence at the Federal Correctional Institution in
Memphis, Tennessee.
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convictions–the 1983 Texas convictions–was constitutionally invalid
as being based on insufficient evidence. He also alleged that as
a result of his unsuccessful 1996 state habeas attack on his 1983
state convictions “[m]ovant has no further avenue of attack
available in state court.”
The district court held that the petition was timely, but
denied relief and dismissed the petition. United States v. Clark,
996 F.Supp. 691 (S.D. Tex. 1998). The court did not determine
whether the 1983 state convictions were or were not
constitutionally valid (or whether an attack on them was barred by
conventional procedural default doctrine). It held that the
Supreme Court’s opinion in Custis v. United States, 114 S.Ct. 1732
(1994), precluded Clark’s section 2255 challenge to his 1983 state
convictions that were used to enhance his current federal sentence
under the ACCA. However, the dismissal was without prejudice to
Clark’s ability to refile for section 2255 relief in the event any
of the 1983 state convictions were subsequently vacated or
otherwise expunged in a proceeding under 28 U.S.C. § 2254 in the
Northern District of Texas (which includes Tarrant County, where
the 1983 convictions took place). The court did not expressly
determine whether Clark had exhausted his state remedies or whether
he was (or had been at any time since his federal indictment) in
state custody pursuant to those 1983 convictions so that a federal
court would have jurisdiction pursuant to section 2254 over a
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challenge to them.
On Clark’s appeal to this court, we held that Custis did not
bar section 2255 relief based as a challenge to the constitutional
validity of the 1983 state convictions used to enhance his federal
sentence, so long as Clark had both exhausted his state remedies as
to the 1983 convictions and was not in state custody pursuant to
them for purposes of a section 2254 challenge to them. We thus
directed the district court to determine the exhaustion and “in
custody” questions, and stated: “If Clark has exhausted his state
remedies and if he is not “in custody” for purposes of a section
2254 challenge to his 1983 state convictions, then the district
court should address Clark’s section 2255 petition.” 203 F.3d at
370. We vacated the district court’s judgment and remanded the
case for further proceedings consistent with our opinion.
The Supreme Court granted the Government’s petition for writ
of certiorari, vacated the judgment of this court, and remanded the
case to this court “for further consideration in light of Daniels
v. United States, 532 U.S. ___, 121 S.Ct. 1578, 149 L.Ed.2d 590
(2001).” United States v. Clark, 121 S.Ct. 1731 (2001).
The Supreme Court’s holding in Daniels is reflected in the
following portions of its opinion there, viz:
“In Custis v. United States, 511 U.S. 485, 114 S.Ct.
1732, 128 L.Ed.2d 517 (1994), we addressed whether a
defendant sentenced under the Armed Career Criminal Act
of 1984 (ACCA), 18 U.S.C. § 924(e), could collaterally
attack the validity of previous state convictions used to
enhance his federal sentence. We held that, with the
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sole exception of convictions obtained in violation of
the right to counsel, a defendant has no right to bring
such a challenge in his federal sentencing proceeding.
511 U.S. at 487, 114 S.Ct. 1732. We now consider
whether, after the sentencing proceeding has concluded,
the individual who was sentenced may challenge his
federal sentence through a motion under 28 U.S.C. § 2255
(1994 ed., Supp. V) on the ground that his prior
convictions were unconstitutionally obtained. We hold
that, as a general rule, he may not.” Id. 121 S.Ct. at
1580.
. . .
“After an enhanced federal sentence has been imposed
pursuant to the ACCA, the person sentenced may pursue any
channels of direct or collateral review still available
to challenge his prior conviction. . . . If any such
challenge to the underlying conviction is successful, the
defendant may then apply for reopening of his federal
sentence. As in Custis, we express no opinion on the
appropriate disposition of such an application. Cf.
ibid.
If, however, a prior conviction used to enhance a
federal sentence is no longer open to direct or
collateral attack in its own right because the defendant
failed to pursue those remedies while they were available
(or because the defendant did so unsuccessfully), then
that defendant is without recourse. . The presumption of
validity that attached to the prior conviction at the
time of sentencing is conclusive, and the defendant may
not collaterally attack his prior conviction through a
motion under § 2255.” Id. 121 S.Ct. at 1583.
The Supreme Court noted, as it had in Custis, an exception for
cases in which the prior conviction is attacked on the basis that
the defendant was denied counsel contrary to Gideon v. Wainwright,
372 U.S. 335 (1963). Daniels states in this respect: “A defendant
may challenge a prior conviction as the product of a Gideon
violation, in a § 2255 motion, but generally only if he raised that
claim at his federal sentencing proceeding.” Id. 121 S.Ct. at
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1583.
It is thus clear that our prior opinion is contrary to the
“general rule” stated in Daniels for cases, such as the present
one, not involving a Gideon attack on any prior conviction used for
enhancement. However, in Daniels the Supreme Court indicated that
there might be an exception to its “general rule”: “We recognize
that there may be rare cases in which no channel of review was
actually available to a defendant with respect to a prior
conviction, due to no fault of his own. The circumstances of this
case do not require us to determine whether a defendant could use
a motion under § 2255 to challenge a federal sentence based on such
a conviction.” Id. 121 S.Ct. at 1584 (footnote omitted).2 The
possibility of such an exception was also discussed, but likewise
ultimately not ruled on, in Lackawana County Dist. Attorney v.
Coss, 121 S.Ct. 1567 (2001), decided the same day as Daniels and
presenting a Daniels type issue in the context of a section 2254
challenge to a state sentence on the ground that it was based on
prior convictions which were constitutionally invalid (for reasons
other than Gideon error). Justice O’Connor’s opinion in Coss gives
the following explanation of this possible exception to the Daniels
“general rule,” viz:
2
See also id. at 1580: “There may be rare circumstances in
which § 2255 would be available, but we need not address the issue
here.”
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“The general rule we have adopted here and in Daniels
reflects the notion that a defendant properly bears the
consequences of either forgoing otherwise available
review of a conviction or failing to successfully
demonstrate constitutional error. . . . It is not always
the case, however, that a defendant can be faulted for
failing to obtain timely review of a constitutional
claim. For example, a state court may, without
justification, refuse to rule on a constitutional claim
that has been properly presented to it. . . .
Alternatively, after the time for direct or collateral
review has expired, a defendant may obtain compelling
evidence that he is actually innocent of the crime for
which he was convicted, and which he could not have
uncovered in a timely manner. . . . In such situations,
a habeas petition directed at the enhanced sentence may
effectively be the first and only forum available for
review of the prior conviction. As in Daniels, this case
does not require us to determine whether, or under what
precise circumstances, a petitioner might be able to use
a § 2254 petition in this manner.” Coss, 121 S.Ct. at
1575.
It is clear that even if the Supreme Court were to recognize
the above noted potential exception to the “general rule” of
Daniels for attacks on a sentence as based on one or more prior
convictions claimed (but not previously adjudicated) to be
constitutionally invalid on grounds other than Gideon, nevertheless
such an exception would not be available to Clark here. That is so
because he never attempted any attack, by direct appeal or
otherwise, on his challenged 1983 state convictions (at which he
was represented by counsel) until 1996, some four years after the
federal sentence he seeks to attack in his 1997 section 2255
petition as having been enhanced by the allegedly invalid 1983
state convictions. The grounds of Clark’s attack on the 1983 state
convictions–alleged insufficiency of evidence–were necessarily
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knowable to Clark at the time. Clark has not demonstrated that
prior to his 1991 federal indictment there was “no channel of
review actually available to” him, Daniels at 1584, with respect to
the 1983 state convictions or that he may not properly “be faulted
for failing to obtain timely review”, Coss at 1575, of his claims
respecting those 1983 convictions.
We therefore conclude that our prior disposition is contrary
to Daniels. Accordingly, our prior opinion and judgment is
withdrawn and the judgment of the district court is
AFFIRMED.
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