Ex parte Garcia

OPINION

This a post conviction application for a writ of habeas corpus under Article 11.07, Vernon's Ann.C.C.P. The petitioner was convicted of possession of firearms by a felon,¹ enhanced by two prior felony convictions,² and the trial judge assessed punishment at life. Upon appeal, this Court affirmed the judgment by per curiam opinion delivered June 4, 1975.³

The petitioner's sole contention is that a prior federal conviction, one of the two prior convictions alleged for enhancement purposes, is void and the life sentence is therefore invalid.

On June 11, 1970, the appellant pleaded guilty to the second count of a two-count federal indictment.⁴ Count two, which alleged a violation of 18 U.S.C. App. Section 1202(a), is as follows:

"COUNT II"

"Title 18, United States Code, Appendix Section 1202(a).

"That on or about February 7, 1970, in Brownsville, Cameron County, Texas, and in the Southern District of Texas, ALFREDO AGUILAR GARCIA, JR., defendant herein, being a person who had been convicted by a court of the State of Texas of a felony, did knowingly and unlawfully possess a firearm to wit, a .32 caliber Harrington and Richardson revolver, model 732, serial number AF 16076, in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351, as amended."

The petitioner, relying on United States v. Bass,404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), contends that the allegation of 18 U.S.C. App. Section 1202(a) to which he pleaded guilty was fundamentally defective because it failed to allege that he possessed a firearm "in commerce or affecting commerce."

In United States v. Bass, supra, the Supreme Court was confronted with the proper interpretation of 18 U.S.C. App. Section 1202(a).⁵ The issue presented in Bass was whether a prosecution under 18 U.S.C. App. Section 1202(a)(1) could stand where *Page 950 "[t]here was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed `in commerce or affecting commerce.'" United States v. Bass, supra at 338, 92 S.Ct. at 517. The Court concluded that ". . . `in commerce or affecting commerce' is part of the offense of possessing or receiving a firearm." United States v. Bass, supra at 351, 92 S.Ct. at 524.

The threshold question, not unequivocally addressed in Bass, must necessarily be whether the phrase "in commerce or affecting commerce" constitutes an essential element of the offense of receiving or possessing a firearm. Of course, the Bass Court did conclude that this phrase was ". . . part of the offense of possessing . . . a firearm." United States v. Bass,supra at 351, 92 S.Ct. at 524. Also, two of the Circuit Courts of Appeals have directly held that the phrase "in commerce or affecting commerce" is an element of the offense of possession by a felon that must be alleged as well as proven. See Bryant v. United States, 462 F.2d 433 (8th Cir. 1972); United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972).⁶ We are convinced by the foregoing authorities that the phrase "in commerce or affecting commerce" is an essential element of 18 U.S.C. App. Section 1202(a) that must be alleged (as well as proven), and that the appellant's claim is therefore facially meritorious.

However, we must also ascertain whether the federal courts⁷ would grant relief pursuant to 28 U.S.C. § 2254.⁸ The petitioner pleaded guilty to the offense of possessing a firearm. See Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C. Rule 11. Federal decisions uniformly hold that a guilty plea waives all nonjurisdictional defects.⁹ Broxson v. Wainwright, 477 F.2d 397 (5th Cir. 1973); Boyd v. Smith, *Page 951 435 F.2d 153 (5th Cir. 1970); Farmer v. Beto, 421 F.2d 184 (5th Cir. 1969); Rice v. United States, 420 F.2d 863 (5th Cir. 1969). Cf. Menna v. New York, 423 U.S. 61, 62, n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Ex Parte Taylor, 484 S.W.2d 748, 752 (Tex.Cr.App. 1972). Where an offense is not alleged in an indictment, the indictment may be challenged at any time. United States v. Trevino, 491 F.2d 74 (5th Cir. 1974). An indictment that fails to allege each material element of an offense fails to allege that offense. United States v. London,550 F.2d 206 (5th Cir. 1977). Thus, the omission of a material element of an offense is a jurisdictional defect susceptible to federal habeas corpus attack even though a plea of guilty was entered and no direct appeal was taken from the guilty plea. United States v. London, supra ; Hayes v. United States, supra ; Bankston v. United States, supra. We therefore conclude that the federal courts would probably grant relief to the petitioner.¹⁰

However, even though the petitioner's claim is facially meritorious and apparently he would be entitled to relief in the federal courts, we must still ascertain whether we should grant the requested relief. Two important considerations affect our decision that the petitioner's relief should be denied.

First, the indictment alleging a violation of 18 U.S.C. App. Section 1202(a) was filed on April 2, 1970. On June 11, 1970, the petitioner entered his plea of guilty. United States v. Bass was not decided until December 1971. Thus, we must ascertain whether the Supreme Court's opinion in Bass is to be applied retroactively to cases arising under 28 U.S.C. § 2254, where the indictment and trial were prior to Bass, but the appeal, if any,¹¹ may have been before or after Bass.

In this connection, our research has revealed no cases involving a retroactive application to such a fact situation.¹² In both United States v. Harris, 456 F.2d 62 (8th Cir. 1972), and Bryant v. United States, 462 F.2d 433 (8th Cir. 1972), the Eighth Circuit reversed, on direct appeal, prosecutions under *Page 952 18 U.S.C. App. Section 1202(a)(1), where the indictment omitted the phrase "in commerce or affecting commerce," and where the indictment and trial were held prior to Bass. However, these cases fail to answer the retroactivity question given the present uncertain factual setting.

In Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App. 1972), this Court dealt with the Supreme Court's decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Leary held that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C. § 4744(a), and that a federal statutory presumption of knowledge of illegal importation of marihuana from possession violated due process. In Taylor, the defendant, by writ of habeas corpus, attacked a federal conviction which had been used for enhancement purposes in a state proceeding, and alleged that Leary invalidated the federal conviction. This Court held that the first portion of Leary that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C. § 4744(a) was retroactive, and that the federal conviction used for enhancement was therefore void.

However, our decision in Taylor was based on the fact that numerous courts had considered whether Leary was retroactive, and that the majority of the courts which had considered the question had held Leary retroactive.¹³ Moreover, Leary involved a question of constitutional law, not federal law.¹⁴

Thus, although "(s)tate courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law," Stone v. Powell, 428 U.S. 465, 493, n. 35, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976), principles of comity persuade us that it would be inappropriate to speculate whether the federal courts would apply Bass retroactively to a case where the indictment and plea of guilty were prior to Bass, but the appeal, if any, may have been before or after Bass.

Second, we are convinced that principles of comity should dissuade us from permitting collateral attack of federal indictments used for enhancement purposes in a state proceeding, particularly when the collateral attack involves matters of federal law rather than constitutional law. Indeed, we have been unable to locate even one case where a state court, either on direct appeal or in a habeas corpus proceeding, has permitted collateral attack of a federal indictment, used for enhancement purposes, on the basis that the federal indictment failed to state an offense.¹⁵ While this may be understandable in light of the availability of federal relief pursuant to 28 U.S.C. § 1651 or 2254, we believe that the federal courts will have the facts necessary to answer all the questions of federal law necessary to an accurate determination of this matter.

Petitioner's requested relief is denied.

DAVIS, J., concurs in the results.

VOLLERS, J., not participating.

¹ See V.T.C.A., Penal Code, Section 46.05. The petitioner's conviction was in Cause No. 74-CR-149-C in the 197th District Court of Cameron County.

² V.T.C.A., Penal Code, Section 12.42(d).

³ Cause No. 50,243.

⁴ Criminal No. 70-B-122, United States District Court for the Southern District of Texas, Brownsville Division.

⁵ 18 U.S.C. App. Section 1202(a) states:

"Any person who

"(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or

"(2) has been discharged from the Armed Forces under dishonorable conditions, or

"(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or

"(4) having been a citizen of the United States has renounced his citizenship, or

"(5) being an alien is illegally or unlawfully in the United States.

"and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

Prior to Bass, the Circuit Courts of Appeals had uniformly held that the phrase "in commerce or affecting commerce" modified "transports." However, the Circuit Courts of Appeals were split over whether the phrase also modified "receives" and "possesses." See United States v. Bass, supra at 338, n. 3, 92 S.Ct. 515.

⁶ See also United States v. Bowdach, 454 F.2d 728 (5th Cir. 1972); United States v. Brock, 454 F.2d 735 (5th Cir. 1972); and United States v. Harp, 454 F.2d 1161 (5th Cir. 1972). In each of these three cases, the Fifth Circuit reversed convictions because of the government's failure to allege and prove that the receipt or possession was "in commerce or affecting commerce."

⁷ We initially note that the petitioner raised his claim for relief via writ of habeas corpus in federal court, Cause No. C.A.B-77-18. On April 18, 1977, a United States District Judge dismissed the petitioner's claim, without prejudice, for failure to exhaust state remedies.

⁸ Our decision must necessarily consider whether the federal courts would grant the relief requested because the petitioner is asking for relief on the basis of federal interpretation of federal law rather than on the basis of our construction of Texas law. However, we do not know under what authority the petitioner could pursue relief in the federal courts if we deny the relief he requests. While the petitioner could rely upon 28 U.S.C. § 2255 (motion to vacate sentence) if he were still in federal custody, his remedies apparently will be limited to those authorized by28 U.S.C. § 2254, since he is in state custody. See Parker v. Ellis,362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). However, even though relief would be unavailable under Section 2255 in the form of a motion to vacate sentence, the petition would be heard by the federal courts as a writ of coram nobis pursuant to 28 U.S.C. § 1651. See Wharton v. United States, 348 F. Supp. 1026 (D.C.Ark. 1972), aff'd470 F.2d 510 (8th Cir. 1972). The essential point is that there are at least two avenues by which the petitioner could properly obtain access to the federal courts. Since the petitioner is in state custody, we shall assume that he will seek relief pursuant to28 U.S.C. § 2254.

⁹ We do not have the complete record from the federal conviction before us. We therefore do not know whether a motion to dismiss the indictment was filed. However, Rule 12(b)(2), Federal Rules of Criminal Procedure, 18 U.S.C. Rule 12(b)(2), states:

"(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. * * * The following must be raised prior to trial:

"(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or. . . ."

The cases interpreting Rule 12(b)(2) have consistently held that a failure to file a Rule 12(b)(2) motion does not waive jurisdictional defects in an indictment. See Bankston v. United States, 433 F.2d 1294 (5th Cir. 1970); Hayes v. United States, 464 F.2d 1252 (5th Cir. 1972); United States v. Willis, 515 F.2d 798 (7th Cir. 1975); United States v. Coppola,526 F.2d 764 (10th Cir. 1975). Cf. Hagner v. United States,285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1931); United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969); Rosecrans v. United States, 378 F.2d 561 (5th Cir. 1967).

Thus, our inability to view the entire record of the federal conviction will not affect our determination of whether the federal courts would grant relief pursuant to 28 U.S.C. § 2254. This is so even if the appellant did not appeal the federal conviction and would be asserting his claim in the federal courts for the first time by his 2254 motion. Cf. Hayes v. United States, supra. But see note 10, infra.

¹⁰ We cannot ascertain whether the petitioner intentionally bypassed federal appellate procedures so as to possibly preclude federal relief under Sections 2254, 2255 or 1651. See note 11, infra. However, since Bass was subsequent to the indictment, the plea of guilty, and the orders placing the appellant on probation and revoking his probation, the petitioner may not have intentionally bypassed his federal appellate remedies with regard to his claim under Bass.

¹¹ The appellant was placed on probation upon his plea of guilty. On April 7, 1971, his probation was revoked. See record in Cause No. 50,243. Since Bass was decided on December 20, 1971, it is conceivable that the appellant did not appeal either the original conviction or the revocation of probation. Moreover, the record in Cause No. 50,243 (see note 3, supra ), reflects that no notice of appeal was filed from the revocation proceeding of April 7, 1971. Thus, it is apparent that we are unable to even ascertain the exact sequence of events from the record.

¹² The complete absence of appeals from cases asserting a Bass-type claim pursuant to Sections 1651, 2254 or 2255 may imply that all such claims have been granted in the District Courts. However, in the absence of authority, we do not attach any significance to this phenomenon.

¹³ Moreover, at least one other state court had held Leary retroactive. See In Re Johnson, 3 Cal.3d 404, 90 Cal.Rptr. 569,475 P.2d 841 (1970).

¹⁴ Cf. Ex Parte Halford, 536 S.W.2d 230 (Tex.Cr.App. 1970), where this Court gave retroactive effect to the holding of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

¹⁵ Of course, recidivist statutes authorizing enhancement of punishment on the basis of prior convictions contemplate prior valid convictions. Cf. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Thus, some state courts will permit collateral attack of federal convictions used for enhancement, but the attacks have uniformly been on the basis of a denial of a fundamental constitutional right. Cf. Ex Parte Taylor, supra; In Re Johnson, supra.