IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 30, 2007
No. 06-50784 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
HORACE EDWARD HOLLIS, JR.,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PRISCILLA RICHMAN OWEN, Circuit Judge:
Horace Edward Hollis, Jr. appeals his criminal sentence under the Armed
Career Criminal Act1 and associated provisions of the United States Sentencing
Guidelines (USSG).2 Because there is insufficient evidence in the record that
Hollis was represented by counsel or validly waived his right to counsel in
proceedings leading to a prior conviction on which a sentence under the Armed
Career Criminal Act was predicated, we vacate and remand for resentencing.
1
See 18 U.S.C. § 924(e).
2
See USSG § 4B1.4 (2001).
No. 06-50784
We also vacate his conviction as a felon in possession of a firearm3 because it is
multiplicitous.
I
Hollis was accused of being a fugitive in possession of a firearm4 (Count
One) and a felon in possession of a firearm5 (Count Two). Both counts were
based on the same firearm and the same time of possession. Hollis requested a
jury trial.
In order to establish that Hollis was a felon, the government was required
to prove a prior felony conviction.6 To preclude the introduction of evidence
regarding the details of his prior convictions before the jury, as well as the
details of his fugitive status, Hollis stipulated to certain facts, including the fact
that he was convicted of a felony in South Carolina in 1963 and sentenced to a
term of years in that state’s penitentiary.7 The jury found Hollis guilty as
3
See 18 U.S.C. § 922(g)(1).
4
See 18 U.S.C. § 922(g)(2).
5
See 18 U.S.C. § 922(g)(1).
6
See id. (defining a felon as any person “who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year”).
7
The relevant text of the stipulation is as follows:
The defendant fully understands he does not have to stipulate to these facts and
that he has a constitutional right to require the government to call witnesses at
the trial and have them testify as to the facts stipulated in this agreement.
Defendant also understands that he has a constitutional right to cross-examine
any witnesses the government may call to give testimony against him, and
knowing all of the above, the defendant, after consultation with his attorney,
agrees to waive these two rights along with any other rights that may attach or
inure to his benefit from the two rights set out above and agrees to stipulate to
the following facts:
That Defendant HORACE EDWARD HOLLIS, JR. is an individual previously
convicted of a crime punishable by imprisonment for a term exceeding one year,
to wit:
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No. 06-50784
charged in Counts One and Two.
At sentencing the government sought to establish that Hollis was a career
criminal and should be sentenced under the Armed Career Criminal Act, which
required proof that Hollis had three prior violent felony convictions.8 The
district court concluded that the government had met its burden and sentenced
Hollis to 212 months’ imprisonment on each count, to run concurrently; a fine
of $1,000 for each count; and an assessment of $100 on each count. Hollis
appealed, and based on the parties’ agreement that the record was unclear as to
which of several prior convictions were the predicates for the armed career
criminal enhancement, this court remanded for re-sentencing.9
At the re-sentencing hearing, it was undisputed that Hollis had at least
two prior violent felony convictions. At issue was whether the 1963 South
Carolina offense may be used as the third. Hollis testified that he was not
represented by counsel in that prior proceeding, was indigent, was not advised
that he was entitled to appointed counsel, and did not waive his right to counsel.
On June 4th, 1963, was convicted of a felony in Cause No. 51217, in Charleston
County, South Carolina and sentenced to a term of years in the South Carolina
Penitentiary.
And:
That Defendant HORACE EDWARD HOLLIS, JR. is an individual who has
knowingly fled from a State to avoid prosecution for a crime in a criminal
proceeding, and was a fugitive from justice at the time of his arrest for this
offense, to wit:
On August 28, 2001, was indicted in Cause No. CR5665 in the Circuit Court for
Dickson County, Tennessee by the grand jury for a felony offense.
The foregoing stipulation of facts is true and correct and are approved by the
persons signing below.
Signed by: [Hollis, his counsel, and government counsel].
8
See 18 U.S.C. § 924(e).
9
United States v. Hollis, 155 F.App’x 793 (5th Cir. 2005).
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No. 06-50784
The government offered a document from the state prosecutor’s office (the
“prosecutive summary”) that purported to reflect the name of an attorney
representing Hollis and other defendants in at least one aspect of the case. The
government also took the position that the stipulation regarding this prior
offense foreclosed Hollis from collaterally attacking the 1963 conviction.
The district court imposed the same sentence, concluding that Hollis’s
prior stipulation to the fact of the 1963 conviction prevented him from later
challenging the validity of that conviction. Hollis has again appealed.
II
It is well-settled that “a conviction obtained in violation of Gideon v.
Wainwright [may not] be used against a person either to support guilt or
enhance punishment for another offense.”10 The stipulation regarding the prior
South Carolina conviction was used to prove an element of Hollis’s conviction as
a felon in possession of a firearm. However, Hollis does not attack the validity
of the prior conviction for that purpose. He contends only that it cannot be used
to support sentencing him as an armed career offender.
Hollis contends that the stipulation regarding the prior South Carolina
offense admitted only that he was convicted, not that the conviction was validly
obtained. We interpret the meaning of stipulations de novo,11 and we agree. As
a general rule, if the text of the stipulation and inferences that may be drawn
from the record demonstrate a “clear waiver” or “intentional by-passing of an
opportunity to assert a known right,” then a subsequent attack on the prior
conviction is barred.12
The stipulation itself states only that Hollis “was convicted.” The text does
10
Burgett v. Texas, 389 U.S. 109, 115 (1967) (citing Gideon v. Wainwright, 372 U.S. 335
(1963)).
11
See United States v. Domino, 62 F.3d 716, 719 (5th Cir. 1995).
12
Mitchell v. United States, 482 F.2d 289, 292 (5th Cir. 1973).
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No. 06-50784
not address Hollis’s guilt or the truth of the charges. There is no statement that
the conviction was valid or was constitutionally obtained. Nor is there any
statement that Hollis waived his right to attack the conviction collaterally.
Hollis’s stipulation is similar to an admission at issue in Mitchell v. United
States, in which this court held:
[B]y admitting the correctness of his criminal record at the time of
sentencing Mitchell did not admit that he was in fact guilty of the
three prior offenses charged, but only confirmed through his counsel
that the record of convictions and prison disciplinary proceedings
presented to the court was substantially correct. Neither Mitchell’s
statements nor those of his attorney at sentencing can fairly be
construed as more than admissions that Mitchell had been
previously convicted of three crimes, as reflected on his record.
They were not admissions of guilt and did not constitute an express
waiver of the right to attack the constitutional validity of the prior
convictions.13
Since the text of the stipulation is unavailing, the government asks us to
infer waiver from the stipulation’s purpose. As recognized in Old Chief v. United
States, a defendant has the right to admit or stipulate to the fact of a prior felony
conviction for purposes of proof of felon status.14 The government cannot
thereafter offer evidence of guilt or the circumstances surrounding that prior
conviction.15 This is an evidentiary matter, as Old Chief explained.16 Evidence
of the circumstances of the prior conviction and even “evidence of the name or
nature of the prior offense generally carries a risk of unfair prejudice to the
defendant.”17 This risk outweighs the right of the government, as a general
13
Id.
14
See Old Chief v. United States, 519 U.S. 172, 190-91 (1997).
15
Id.
16
Id.
17
Id. at 185.
5
No. 06-50784
matter, to prove its case as it chooses. As Old Chief discerned, the “recognition
that the prosecution with its burden of persuasion needs evidentiary depth to
tell a continuous story has, however, virtually no application when the point at
issue is a defendant’s legal status, dependent on some judgment rendered wholly
independently of the concrete events of later criminal behavior charged against
him.”18
The government argues that Hollis cannot “have it both ways,” contending
that when Hollis stipulated to the existence of the prior conviction for purposes
of establishing his status as a felon with regard to the felon in possession of a
firearm charge, he could not later disavow the prior conviction for sentencing
purposes. But the fact that Hollis failed to collaterally attack the prior
conviction during the trial of his innocence or guilt does not foreclose a
subsequent collateral attack during sentencing proceedings. As discussed above,
the stipulation does not constitute an express waiver, and Hollis’s failure to avail
himself of a right in one context does not constitute the waiver of that right in
another.
Nor will we infer waiver under the doctrine of Zales v. Henderson19 and
Long v. McCotter.20 As we stated in Long, the Zales doctrine “is limited to
situations in which . . . the petitioner has pleaded ‘true’ or ‘guilty’” to an
enhancement charge.21 Hollis has not pleaded “true” or “guilty” to the
underlying offense or to the Armed Career Criminal Act enhancements. The
stipulation in this case is not analogous in purpose or effect to a “true” or “guilty”
plea: the purpose of Hollis’s stipulation is to avoid prejudice to the jury. The
18
Id. at 190.
19
433 F.2d 20 (5th Cir. 1970).
20
792 F.2d 1338 (5th Cir. 1986).
21
Id. at 1341.
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No. 06-50784
Zales waiver doctrine does not apply here.
III
The district court relied upon the waiver theory in ruling on Hollis’s
challenge to his 1963 conviction, and the court made no factual finding as to
whether Hollis had counsel for that conviction. In Mitchell, we set forth the
burdens and standards of proof when a defendant alleges that a prior conviction
was unconstitutionally obtained because of lack of representation:
[W]hen a convicted defendant who was indigent at the time of his
conviction collaterally attacks the conviction on right-to-counsel
grounds, and the record shows that he was not represented by
counsel or is silent regarding representation of counsel, then the
party which defends the conviction has the burden of proving that
the defendant was represented by counsel or that he waived his
right to counsel. Conversely, if the record of the conviction under
collateral attack shows that the defendant was represented by
counsel, the convicted defendant has the burden of impeaching the
record.22
The government argues that the prosecutive summary is evidence showing that
Hollis was represented by counsel and therefore that the burden was upon Hollis
to impeach that record at sentencing. But the prosecutive summary does not
show what the government claims it does. It shows, at most, that Hollis and his
co-defendants were represented by an attorney at their bond hearing hours after
they were apprehended on May 14, 1963. Although the word “guilty” appears
on the document, it has no information regarding a trial or plea proceeding. It
does not reflect that Hollis was represented by counsel when convicted or that
he validly waived his right to counsel.
Because the government has not established three counseled predicate
felonies, the sentence must be vacated and Hollis must be re-sentenced.
IV
22
See Mitchell, 482 F.2d at 296 (citations omitted).
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No. 06-50784
Conviction as a felon-in-possession and as fugitive-in-possession for the
same firearm on the same occasion is prohibited by Munoz-Romo.23 Hollis does
not raise this issue in his appeal, but the government does so in its response and
requests that we vacate one of Hollis’s convictions.
In his first appeal in this case, Hollis argued both that Munoz-Romo
required that one of his two convictions be vacated, and that his Armed Career
Criminal Act sentence had not met the requirements of Mitchell. In that appeal,
the government agreed with Hollis on the Munoz-Romo issue and on the second
issue requested that we remand because the record was not sufficiently clear to
determine whether Hollis’s sentence violated Mitchell. Our disposition in that
first appeal addressed only the Mitchell issue; we did not address the Munoz-
Romo argument.24
At resentencing, Hollis moved the district court to vacate one of his
convictions in light of Munoz-Romo, and the government opposed that motion at
the time. The district court interpreted our mandate in the first appeal as
rejecting the Munoz-Romo argument. The district court accordingly resentenced
only in light of Mitchell and denied the motion to dismiss one of the convictions
under Munoz-Romo.
On this second appeal, we are bound by the law of the case rule:
“ordinarily an issue of fact or law decided on appeal may not be reexamined . . .
23
See United States v. Munoz-Romo, 989 F.2d 757, 759 (5th Cir. 1993).
24
The substantive portion of our opinion in the first appeal reads as follows:
IT IS ORDERED that Appellee’s unopposed motion to vacate the
sentence is GRANTED.
IT IS FURTHER ORDERED that Appellee’s unopposed motion to
remand case for resentencing consistent with Mitchell v. United States, F.2d 289
(5th Cir. 1973) is GRANTED.
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No. 06-50784
by the appellate court on subsequent appeal.”25 Assuming, without deciding,
that our first appeal adjudicated the Munoz-Romo issue, we may not reconsider
that issue now unless one of the exceptions to the doctrine applies. The three
exceptions are: “(1) [t]he evidence at a subsequent trial is substantially
different; (2) there has been an intervening change of law by a controlling
authority; and (3) the earlier decision is clearly erroneous and would work a
manifest injustice.”26 The third exception is granted only in “extraordinary
circumstances.”27
Mere doubts or disagreement about the wisdom of a prior decision
of this or a lower court will not suffice for this exception. To be
clearly erroneous, a decision must strike us as more than just maybe
or probably wrong; it must be dead wrong.28
In this case, Munoz-Romo unequivocally prohibits Hollis’s simultaneous
conviction for Counts One and Two. If our opinion in the first appeal decided
that issue and allowed both convictions to stand, it was “dead wrong” under our
earlier decision in Munoz-Romo. Allowing an invalid conviction to stand would
work manifest injustice. The Eighth Circuit has held that a clearly erroneous
appellate ruling on a statute of limitations defense in a 42 U.S.C. § 1983 claim
that had the effect of improperly dismissing certain defendants would work a
manifest injustice if allowed to stand on the second appeal.29 The court therefore
modified its earlier ruling, despite the fact that it had become the law of the
25
United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quoting United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002)) (internal quotation marks omitted).
26
Id. at 320 n.3.
27
City Pub. Serv. Bd. v. Gen. Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991) (amended on
another point, 947 F.2d 747 (5th Cir. 1991)).
28
Id. (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th
Cir. 1988)) (internal quotation marks and omissions omitted).
29
See Sulik v. Taney County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005).
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No. 06-50784
case. Allowing an invalid criminal conviction to stand would work a far greater
injustice than improper dismissal of defendants in a civil § 1983 case. In these
unique circumstances, in which the government, in the interest of justice, urges
us to vacate a defendant’s criminal conviction because it is foreclosed by this
court’s prior precedent, it would be clear error and manifest injustice to allow the
conviction to stand. We will grant the government’s request to vacate Count
Two.
V
For the foregoing reasons, Hollis’s conviction under 18 U.S.C. § 922(g)(1)
(felon in possession of a firearm), sentence under 18 U.S.C. § 924(a)(2), as well
as the penalty and fine, are VACATED. His sentence under 18 U.S.C.
§§ 922(g)(2) and 924(a)(2) (fugitive in possession of a firearm) is VACATED and
we REMAND for resentencing.
10