United States v. Pettiford

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1045

UNITED STATES OF AMERICA,

Appellant,

v.

BRIAN A. PETTIFORD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

James C. Rehnquist, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellant.

George F. Gormley with whom John D. Colucci and Gormley & Colucci

were on brief for appellee.

November 25, 1996

ALDRICH, Senior Circuit Judge. In March 1991

appellee Brian A. Pettiford (hereinafter defendant) was

convicted of being a felon-in-possession of a firearm in

violation of 18 U.S.C. 922(g)(1). Because he had nine

prior state convictions for violent felonies, he received a

minimum mandatory sentence of fifteen years pursuant to the

Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e)(1).

In 1994, all but one of the prior convictions were vacated by

the Massachusetts state courts, and in 1995 the district

court granted federal habeas corpus relief under 28 U.S.C.

2255 in the form of a sentence reduction, on the ground

that the ACCA was now inapplicable to the computation. On

the government's appeal, we affirm.

I. Background

Approximately two years after his federal

sentencing, defendant requested audiotapes of his earlier

guilty pleas and sentencings in Boston Municipal Court and

Dorchester District Court. He was unsuccessful in obtaining

useful tapes, post, and subsequently attempted to reconstruct

the proceedings through the use of affidavits. Ultimately,

the courts vacated eight of the nine convictions. The Boston

Municipal Court judge, finding no record that the trial judge

had engaged in any colloquy with the defendant at the time of

his guilty plea, vacated the convictions on the ground that

the Commonwealth had failed to carry its burden of producing

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a "contemporaneous record affirmatively [showing] that the

defendant waived his rights voluntarily and knowingly," as

required under the federal Constitution and Massachusetts

law. The Dorchester District Court apparently did the same.

On the habeas petition, our district court, taking what

would, initially, seem to us the equitable view, granted the

relief and resentenced defendant to the term served, four and

one half years.

The government appeals, and with indignation: the

state action had been a "windfall;" the government had been

"sandbagged." In view of the fact that the mandatory

enhancement was based entirely upon the state's action in

convicting,1 and not simply a case where enhancement is

permitted for charges with no findings, see, e.g., U.S.S.G.

4A1.3(e), to complain of state windfalls and government

sandbagging is strong language. The government criticizes

1. 18 U.S.C. 924(e)(1) reads:

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
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).

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the state's procedure as if the vacated convictions were

federal property, and the defendant as if he were attempting

a trespass. We are induced to start with the opposite

approach. First, however, we must consider a Supreme Court

case, United States v. Custis, 511 U.S. 485, 114 S. Ct. 1732

(1994), decided after the imposition of defendant's original

sentence and its affirmance on appeal, United States v.

Pettiford, 962 F.2d 74 (1st Cir. 1992).

II. United States v. Custis

In May 1994, the Supreme Court in Custis held that

under 924(e), unless a defendant in a federal sentencing

proceeding was claiming a violation of his right to counsel,

he had no right at that time to make a collateral attack on

prior state convictions. 114 S. Ct. at 1738. Rather, the

Court observed at the end of the opinion,

We recognize, however, as did the
Court of Appeals . . . that Custis, who
was still "in custody" for purposes of
his state convictions at the time of his
federal sentencing under 924(e), may
attack his state sentences in Maryland or
through federal habeas review. See

Maleng v. Cook, 490 U.S. 488 (1989). If

Custis is successful in attacking these
state sentences, he may then apply for
reopening of any federal sentence
enhanced by the state sentences. We
express no opinion on the appropriate
disposition of such an application.

Id. at 1739. The district court, noting this dicta, held, in

an extensive opinion, Pettiford v. United States, 1995 WL

464920 (D. Mass. 1995), that defendant's enhanced federal

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sentence was now in violation of the Constitution. The

government has a variety of objections.

III. Jurisdiction

The district court concluded from the Custis dicta

that 2255 was the appropriate vehicle by which to proceed.

The government objects on the ground that this section

applies only to prisoners incarcerated "in violation of the

Constitution or laws of the United States." While we

believe, post, that defendant has such a claim, the

government's attempt to limit the availability of 2255 that

permeates its case, is surprising. Section 2255 reads as

follows:

A prisoner in custody under sentence
of a court established by Act of Congress
claiming the right to be released upon
the ground that [1] the sentence was
imposed in violation of the Constitution
or laws of the United States, or that [2]
the court was without jurisdiction to
impose such sentence, or that [3] the
sentence was in excess of the maximum
authorized by law, or [4] is otherwise

subject to collateral attack, may move

the court which imposed the sentence to
vacate, set aside or correct the sentence
. . . .

(emphasis supplied.) Item 4 stands by itself sufficiently

without our having to resort to the familiar principle that

additional language is presumably separately meaningful

rather than redundant. Indeed, we have previously held that

the fourth prong of 2255 encompasses other than

constitutional or statutory error. See, e.g., United States

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v. DiRusso, 548 F.2d 372, 374-75 (1st Cir. 1976) (noting that

2255 is often a vehicle for correcting sentences based upon

errors made by the sentencing judge). However, whether on

constitutional or grounds otherwise subject to collateral

attack, we concur with the district court's recognition of

federal habeas jurisdiction.

IV. Timing of Determination of Criminal History

18 U.S.C. 921(a)(20), the statute hereto

appertaining, provides in relevant part:

What constitutes a conviction of
such a crime shall be determined in
accordance with the law of the
jurisdiction in which the proceedings
were held. Any conviction which has been
expunged, or set aside or for which a
person has been pardoned or has had civil
rights restored shall not be considered a
conviction for purposes of this chapter
. . . .

The government contends that the past tense phrases "has been

expunged" and "has been pardoned," indicate that only past

offenses vacated prior to the federal proceeding may be

discounted by the court, in effect etching the defendant's

criminal history record in stone as of that moment. We do

not agree. The wording would read equally well if applied to

convictions expunged, etc., subsequent to the federal

sentencing.

Thus with the rule of lenity, see United States v.

Boots, 80 F.3d 580, 588 (1st Cir. 1996), cert. denied, 117 S.

Ct. 263, 65 U.S.L.W. 3265 (U.S. Oct. 07, 1996) (No. 96-5631),

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the government is on the short end. And with the procedural

rule announced in Custis, that it is only after sentence that

a defendant may attack the convictions that contributed to

it, what sense would it make to say that he may attack pre-

sentence convictions, but not one whose flaw did not appear

until after the federal sentence? Obviously this is the

situation every time it is defendant who establishes the

flaw. The district court was correct. United States v. Cox,

83 F.3d 336 (10th Cir. 1996). See also United States v.

Bacon, 94 F.3d 158, 162 n.3 (4th Cir. 1996); Young v. Vaughn,

83 F.3d 72, 77 (3d Cir.), cert. denied, 117 S. Ct. 333, 65

U.S.L.W. 3285 (U.S. Oct. 15, 1996) (No. 96-217); United

States v. Hofierka, 83 F.3d 357, 364 (11th Cir.), modified on

other grounds on denial of reh'g, 92 F.3d 1108 (11th Cir.

1996). No circuit has indicated otherwise.

V. Basis for Vacation of State Convictions

As we have said, defendant's motions to vacate the

state convictions were based on the ground that he had not

been furnished by the courts, before accepting his guilty

pleas, the information necessary for his pleas to be

considered voluntary, a constitutional requirement. See

Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States

v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996). For the

Boston Municipal Court cases there were no records,

presumably because more than two and a half years had elapsed

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since the plea and they had been destroyed pursuant to

permissive Rule 211A(4). In the Dorchester District Court

there were tapes, but they were unintelligible. One court

demonstrably, and the other apparently, applied the

Massachusetts rule that the burden is on the state to show

the voluntariness of the plea, Commonwealth v. Duquette, 386

Mass. 834, 841 (1982), and granted the motions to vacate.

This distresses the government, evoking the charges

of windfalls and sandbagging.2 It makes an elaborate

argument, based on the fact that the state courts could have

applied a presumption of correctness and found the plea

hearings valid, see Parke v. Raley, 506 U.S. 20, 31 (1992),

and that the Massachusetts courts did not go so far as to

hold the convictions unconstitutional. Putting aside the

fact that the Boston Municipal Court judge specifically found

a Boykin violation, we do not attach consequences to such

recondite thinking. The short answer is that Congress chose

to predicate sentence enhancement on state action. Surely it

is not for the federal court to read the statutory language,

"in accordance with the law of the jurisdiction in which the

2. See illuminating discussion in United States v. Payne,

894 F. Supp. 534, 537 n.7 (D. Mass. 1995). The one year
limitation contained in the recent amendment of 2255 will
diminish this problem. See the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1220 (April 24, 1996).

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proceedings were held" as permitting us to conclude that the

Massachusetts lower court decisions were wrongly decided.

The government makes a further point. Before

Custis, it was permissible for a defendant to raise the

invalidity of his state convictions at the time of his

federal sentencing. United States v. Paleo, 967 F.2d 7, 11

(1st Cir. 1992). Because the defendant did not do so, the

government attempts to invoke the rule of cause and

prejudice. See Coleman v. Thompson, 501 U.S. 722, 750

(1991). It presses this particularly because, federalwise,

the burden would have been on the defendant to prove an

inadequate plea colloquy, see United States v. Wilkinson, 926

F.2d 22, 28 (1st Cir.), cert. denied, 501 U.S. 1211 (1991),

overruled on other grounds by Bailey v. United States,

U.S. , 116 S. Ct. 501, 509 (1995), and having no memory on

the subject one way or the other, he would have had no proof.

Our reaction is the opposite of the government's. With no

memory there was no affirmative waiver. Exceptional

circumstances may excuse a delayed making of a claim, Knight

v. United States, 37 F.2d 769, 773 (1st Cir. 1994), and

ignorance may be a factor.

Even if Custis is not regarded as retroactive, it

indicates the acceptability of this post-sentence proceeding.

We are content to recognize the district court's discretion.

Affirmed.

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