Larry E. Stead v. Kenneth M. Link, U. S. Marshal

540 F.2d 923, 1976 U.S. App. LEXIS 7596

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 12, 1976
• Docket: 75-1763
• Status: Published

Opinions

ROSS, Circuit Judge.

Larry Stead seeks to vacate the sentence imposed on him for attempted bank entry (18 U.S.C. § 2113(a)) on the grounds that the sentencing judge considered four unconstitutional state convictions in enhancing the sentence to its 20 year maximum. In presenting these claims below Stead denoted his pro se petition as a “Motion for Declaratory Judgment and Petition for Writ of Habeas Corpus.” Judge Wangelin (E.D.Missouri) correctly treated his petition as a motion to vacate sentence pursuant to 28 U.S.C. § 2255, and on the basis of a magistrate’s report denied relief for lack of state exhaustion. We affirm in part and reverse in part with instructions.

The gravamen of appellant’s claim is his assertion that in imposing the maximum sentence the district court violated the principles of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In Tucker the Court held that a federal sentence enhanced by a constitutionally invalid state conviction required remand to the trial court for reconsideration.

The four state convictions that Stead alleges were improperly used to enhance his federal sentence occurred as a result of guilty pleas to one count each of burglary and stealing in November 1964, and two similar counts in January 1966. Petitioner now alleges that the guilty pleas entered on these two separate occasions were not knowingly and voluntarily made. The present challenge to these convictions is collateral only inasmuch as Stead had fully served the state sentences when he was found guilty by a jury of the federal charge in 1969. That conviction was later upheld by this court in United States v. Stead, 422 F.2d 183 (8th Cir.), cert. denied, 397 U.S. 1080, 90 S.Ct. 1534, 25 L.Ed.2d 816 (1970).

A beginning point for consideration of Tucker -based appeals in this circuit is the question of exhaustion of state remedies. Since a § 2255 proceeding under Tucker is a collateral challenge, petitioner must exhaust his state remedies. Young v. United States, 485 F.2d 292, 294 (8th Cir. 1973), cert. denied, 416 U.S. 971, 94 S.Ct. 1995, 40 L.Ed.2d 560 (1974); Ryan v. United States, 485 F.2d 295, 296 (8th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1568, 39 L.Ed.2d 876 (1974). Comity requires that a state court which rendered the conviction be presented with the opportunity to initially determine the constitutional validity of that challenged judgment. Tyler v. Swenson, 527 F.2d 877, 878 (8th Cir. 1976). However, federal courts will not require pursual of state remedies where such a requirement is an exercise in futility. Rice v. Wolff, 513 F.2d 1280, 1290 (8th Cir. 1974), rev’d on other grounds,-U.S.-, 96 S.Ct. 3037, 49 L.Ed.2d-(1976).

The procedural history of petitioner Stead’s challenges to his federal sentence is exceedingly complicated.¹ Without restating the various steps and missteps that occurred before and during the present appeal, we find that exhaustion has not occurred as to the guilty plea entered in January 1966. Appeal by writ of error coram nobis concerning his later plea has been presented to the Missouri State Court of Appeals. We are informed by counsel that a ruling on this appeal is expected in late fall of 1976. As to that portion of the district court’s opinion that denied relief based on lack of state exhaustion for the 1966 plea, we affirm.

As to the guilty pleas entered by Stead in November 1964, we find that Stead has, as a practical matter, exhausted his state court remedies, although the question is not free from doubt. On June 18, 1971, a petition for writ of error coram nobis was dismissed for lack of jurisdiction by the St. Louis County Circuit Court.² Stead claims he was not notified of this dismissal until over a year had elapsed, and because of that time lag he lost his right to appeal therefrom. The district court did not make a determination as to whether this allegation was correct or not.

Under these circumstances, and because he has now almost concluded the process of exhausting his state remedies as to the 1966 plea, we hold that the trial court should, on remand, await the state court disposition of the 1966 plea, and then determine whether any of the four guilty pleas were constitutionally invalid. If the district court or the Missouri state courts find one or more of said pleas invalid then, in view of Judge Meredith’s self-disqualification in this case, a district judge other than Judge Meredith shall resentence Stead as provided in United States v. Tucker, supra. To require determination of the validity of the 1964 pleas prior to the completion of state exhaustion as to the 1966 pleas would be a useless act since it would possibly bifurcate the resentencing process. The proper procedure is for Stead to be finally sentenced taking into consideration all of the relevant factors including his corrected record, if indeed any corrections are justified.

Both challenged pleas occurred prior to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Therefore the standard to be used by the district court is one of examining the totality of the circumstances to see whether each plea was voluntarily and understandingly given. In Winford v. Swenson, 517 F.2d 1114, 1117-18 (8th Cir. 1975) we said:

This pre-Boykin test does not require a record affirmatively showing that the trial judge gave the defendant specific procedural warnings before accepting the plea but only that the record contain facts demonstrating the voluntary and intelligent nature of the plea. (Citation omitted.) Indeed, the Supreme Court has made it clear that a counseled guilty plea made by a competent defendant aware of the nature of the charge against him and induced by his desire to limit the possible penalty will not be set aside simply because the defendant later learns of constitutional rights which he did not know at the time the plea was entered.

See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 797-98, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); cf. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

Affirmed in part, reversed in part and remanded for further proceedings consistent with the views expressed in this opinion.

1 . Stead’s original complaint in this case was initially referred to Judge Wangelin who transferred it to Judge Meredith (E.D.Missouri), the trial judge who imposed the maximum sentence. Judge Meredith dismissed the complaint based on his certification that he did not take the four state convictions into consideration in passing sentence.

However, Stead moved to disqualify Judge Meredith because Judge Meredith had previously disqualified himself on another § 2255 action by Stead concerning this same conviction. Judge Meredith then entered an order which vacated his prior dismissal, and disqualified himself. The case was then transferred back to Judge Wangelin.

2 . The record does not contain transcripts of the prior coram nobis proceeding, the four prior state pleas or sentences, nor evidence relating to the voluntariness of these pleas because the case was decided on a summary judgment basis.