Smith v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 18, 2000
• Docket: 99-3340
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0167P (6th Cir.) File Name: 00a0167p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  JERRY LEE SMITH,  Petitioner-Appellee,   No. 99-3340 v.  > UNITED STATES OF AMERICA,  Respondent-Appellant.  1 Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 98-02824—David D. Dowd, Jr., District Judge. Submitted: March 9, 2000 Decided and Filed: May 18, 2000 Before: WELLFORD, SILER, and GILMAN, Circuit Judges. _________________ COUNSEL ON BRIEF: Karin Hoppmann, U.S. DEPARTMENT OF JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION, Washington, D.C., Gary D. Arbeznik, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant. David C. Jack, Wadsworth, Ohio, for Appellee.

1 2 Smith v. United States No. 99-3340

WELLFORD, J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. 12-13), delivered a separate concurring opinion. _________________ OPINION _________________ HARRY W. WELLFORD, Circuit Judge. The government appeals the district court’s grant of a motion to vacate Smith’s federal sentence under 28 U.S.C. § 2255, which was based on its finding that two of Smith’s predicate state convictions that were used to enhance his sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),1 had been obtained in violation of Boykin v. Alabama, 395 U.S. 238 (1969). We are called upon to decide whether a defendant, who does not meet the “in custody” requirement of 28 U.S.C. § 2254, may attack the constitutional validity of predicate state convictions under the ACCA in a § 2255 proceeding. We conclude that we are bound to hold that such a collateral attack is impermissible under this court’s previous decision in Turner v. United States, 183 F.3d 474 (6th Cir. 1999). Thus, we REVERSE the decision of the district court and REMAND for resentencing.

1 Section 924(e)(1) provides: 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 the 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). No. 99-3340 Smith v. United States 3

I. BACKGROUND This case is before us for the third time.2 In 1991, Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the government sought to enhance Smith’s sentence pursuant to the ACCA, which requires a minimum fifteen-year sentence for offenders who have three or more qualifying acts, based on Smith’s prior state convictions. The district court refused to apply the ACCA, finding that two of Smith’s predicate convictions had been obtained in violation of Boykin v. Alabama, 395 U.S. 238 (1969), because Smith had not been advised of his constitutional rights prior to the sentencing hearing in those cases. The court sentenced Smith to twenty- seven months in prison. The government appealed to this court, and we reversed. See United States v. Smith, 36 F.3d 490 (6th Cir. 1994). We held that Custis v. United States, 511 U.S. 485 (1994), which had just been decided at that time, was indistinguishable from Smith’s case and did not allow a defendant to “collaterally attack the validity of previous state convictions that are used to enhance his sentence under the ACCA . . . (with the sole exception of convictions obtained in violation of the right to counsel). . . .” Custis, 511 U.S. at 487, quoted in Smith, 36 F.3d at 492. Thus, we vacated Smith’s sentence and remanded to the district court for resentencing. Smith, who had completed his term of imprisonment under the prior sentence and was on supervised release, was returned to custody on January 23, 1995. Sentencing was rescheduled for January 27, 1995, but Smith obtained a continuance in order to file a habeas corpus petition under § 2255. On February 24, 1995, the district court denied the habeas petition, noting that the proper means of challenging state convictions was through § 2254 rather than § 2255. At the resentencing hearing, however, the district court found

2 A brief factual background of the case can be found at United States v. Smith, 36 F.3d 490, 491 (6th Cir. 1994). 4 Smith v. United States No. 99-3340 No. 99-3340 Smith v. United States 13

that our delay in adjudicating the government’s appeal (three confidence in the integrity of our procedures and inevitably years had elapsed between the filing of the notice of appeal delay and impair the orderly administration of justice,” id. at and the issuance of this court’s disposition of the case) 497 (alteration in original) (citations and internal quotation amounted to a denial of due process. Accordingly, the court marks omitted), the Supreme Court recognized that Custis, released Smith on March 15, 1995. The government appealed who was still “in custody” on his state-court convictions, again, and this court found that the delay did not rise to the could collaterally attack his state convictions in state court level of a due process violation. See United States v. Smith, and, if that was unsuccessful, could seek federal habeas relief. 94 F.3d 204, 205 (6th Cir. 1996). We again reversed and See id. Custis would then be free to “apply for reopening of remanded for resentencing under the ACCA. See id. at 213. any federal sentence enhanced by the state sentences” if he ultimately proved successful in upsetting his state On the second remand, the district court applied the ACCA, convictions. Id. If “finality of judgments” truly was the sentencing Smith to 180 months imprisonment. The court primary interest, then the Supreme Court presumably would gave Smith credit for the fifty-five months he had already have felt no need to leave this door open. served, resulting in a balance of 125 months. Smith appealed, but later withdrew the appeal. Nothing in Custis says that Custis would have been barred from all relief if he were no longer in state custody. Cf. On December 4, 1998, Smith filed the instant case pro se Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg, under § 2255. His only stated grounds for habeas relief was J., dissenting) (“Custis presented a forum question. The issue that two of the prior state convictions that were used to was where, not whether, the defendant could attack a prior enhance his federal sentence were constitutionally infirm conviction for constitutional infirmity.”). Indeed, as the Fifth under Boykin, supra, and therefore should not have been used Circuit observed, this was a question that the Supreme Court to enhance his sentence under the ACCA. Though this court had expressly left open. See Clark, 203 F.3d at 364 (“We had before held that Custis prevented the district court from express no view on the extent to which the [expired] 1958 considering that argument at sentencing, see Smith, 36 F.3d at conviction itself may be subject to challenge in the attack 492, the district court reconsidered the argument in the upon the [present] 1978 sentences which it was used to context of the § 2255 motion. The district court held that enhance.”) (alterations in original) (quoting Maleng v. Cook, “Custis does not preclude collateral attacks by way of other 490 U.S. 488, 494 (1989) (per curiam)). kinds of proceedings, such as habeas corpus proceedings or proceedings on motions under 28 U.S.C. § 2255.” It I nevertheless concur in the judgment and opinion of the proceeded to address Smith’s arguments, finding that “a court because I agree with Judge Wellford’s conclusion that defendant should not be penalized because, years ago, he “in the absence of en banc review or a Supreme Court failed to challenge a state court conviction on the off chance decision to the contrary, Turner forecloses the possibility that that it might someday be used to enhance a federal sentence.” Smith can use § 2255 to challenge his ACCA sentence by In reaching the merits of Smith’s claim, the court made the collaterally attacking his predicate convictions in federal court same conclusion as it had prior to the very first appeal in this without attempting first a challenge in state court.” case, that the state convictions were invalid under Boykin. The government filed this timely appeal. 12 Smith v. United States No. 99-3340 No. 99-3340 Smith v. United States 5

_________________ II. ANALYSIS CONCURRENCE We are now squarely faced with the issue of whether Smith _________________ can attack the validity of his state convictions in this § 2255 proceeding aimed at challenging the use of those convictions RONALD LEE GILMAN, Circuit Judge, concurring. It in deciding his federal sentence. Several months after the appears to me that Turner takes Custis v. United States, 511 district court issued its final decision in this case, a panel of U.S. 485 (1994), too far by applying its holding (that a our court decided Turner v. United States, 183 F.3d 474 (6th defendant who has state or federal habeas remedies available Cir. 1999), wherein we held that the rule in Custis, which to him cannot attack his predicate state convictions at his involved a defendant’s direct appeal from his federal federal sentencing hearing) to defendants who may have no sentence, also applies to actions challenging a federal available state or federal habeas remedy. When a defendant sentence pursuant to § 2255. We stated specifically: such as Smith is no longer “in custody” on his predicate state- court conviction, and when the proceeding is a § 2255 post- We read Custis as requiring [the defendant] to challenge conviction hearing rather than a sentencing hearing, I believe the underlying state convictions first in the state court or that the Fifth Circuit’s analysis in United States v. Clark, 203 in an independent habeas corpus proceeding brought F.3d 358 (5th Cir. 2000), is the sounder application of the pursuant to 28 U.S.C. § 2254. Only after [the defendant] Custis decision. succeeds in such a challenge can he seek to reopen his [federal] sentence in this case. In Custis, the Supreme Court held that a defendant was not entitled “to use the federal sentencing forum to gain review of Turner, 183 F.3d at 477. Accord Sanders v. United States, his state convictions.” Custis, 511 U.S. at 497. The Court No. 98-3651, 1999 WL 591455 (6th Cir. July 27, 1999) observed that “Congress did not prescribe and the (unpublished); see also United States v. Daniels, 195 F.3d Constitution does not require such delay and protraction of 501 (9th Cir. 1999). the federal sentencing process.” Id. Allowing a defendant who has already been sentenced to mount a collateral attack Smith argues that our holding in Turner does not prevent on the predicate convictions that were the basis for the him from attacking the predicate state convictions in this case enhancement of his present sentence, however, does not delay because he is not “in custody” for purposes of § 2254. He and protract the federal sentencing process. This may have claims that it is impossible to do that which Turner requires-- been one of the main reasons underlying the Supreme Court’s that is, to first “challenge the underlying state convictions in distinction between collateral attacks based on the complete a state court or in an independent § 2254 habeas proceeding.” denial of counsel, which may be raised at the defendant’s Turner, 183 F.3d at 477; see Carafas v. LaVallee, 391 U.S. federal sentencing for being an armed career criminal, and 234 (1968) (if a defendant is not “in custody,” a federal court other alleged constitutional defects, which may not. See id. will not have jurisdiction to hear a § 2254 motion). at 496. Ascertaining whether counsel’s assistance was Consequently, Smith argues, the district court should be constitutionally ineffective is often difficult, but ascertaining permitted to address his § 2255 petition based on the whether counsel’s assistance was denied altogether is constitutional infirmity of his prior state convictions. In relatively easy. See id. support of that rationale, Smith urges this court to follow United States v. Clark, 203 F.3d 358 (5th Cir. 2000). Notwithstanding the language in Custis about how “[i]nroads on the concept of finality tend to undermine 6 Smith v. United States No. 99-3340 No. 99-3340 Smith v. United States 11

In Clark, the court acknowledged the general rule that when proposition, and the authority in this circuit supports our a defendant brings a § 2255 petition challenging the use of position. state convictions to enhance his federal sentence, “it may well make administrative good sense to require the defendant to We REVERSE the district court and REMAND with first exhaust his section 2254 remedies and allow him to instruction to resentence Smith accordingly. return under section 2255 to the court which imposed the enhanced sentence only after the prior conviction has been set aside in the section 2254 proceeding.” Clark, 203 F.3d at 369-70. The court held, however, that if a defendant has unsuccessfully exhausted all available state remedies but is not “in custody” for purposes of § 2254, a district court should address the validity of the state conviction in the defendant’s § 2255 proceeding. In its analysis, the court mentioned our decision in Turner but noted that the case did not address whether the defendant “could meet the ‘in custody’ requirement of § 2254 or what the result would be if he could not.” Id. at 367. Ultimately, the court found it unreasonable to differentiate between a defendant who was “in custody” and one who was not “in custody” for purposes of permitting that defendant to bring a § 2255 challenge to his federal sentence. Id. at 370. The court explained that to hold otherwise would be contrary to the Supreme Court’s “reluctance to adopt a reading of the overall statutory habeas scheme that ‘would bar the prisoner from ever obtaining federal habeas review.’” Id. (citations omitted). The government argues against following Clark: A defendant who fails to take advantage of state and habeas remedies should not be provided an “alternative” remedy under Custis. Such a scheme does violence to the principles of finality and efficiency that power the Supreme Court’s decision in Custis. And under the Fifth Circuit’s reasoning, a federal court may at any time reopen a state criminal proceeding without the presence of the state as a party, see Clark, 203 F.3d at 364; thus, the decision also violates principles of comity. Furthermore, the government claims that our holding in Turner does not leave room for the exception made in Clark. 10 Smith v. United States No. 99-3340 No. 99-3340 Smith v. United States 7

in CR 195662 The opinion is clear, the government argues, that “Custis does and CR199703. not support [the] tactic” of seeking relief from a predicate Parole 10/25/88, state conviction in a § 2255 petition. final release 1/18/90. We agree with the government’s position that Turner controls our holding in this case. In Turner, we stated plainly The defendant was represented by an Attorney. that a defendant must challenge his state convictions “first in On February 15, 1985, the defendant entered the the state court or in an independent habeas corpus proceeding premises of Cleveland Board of Education Building, brought pursuant to 28 U.S.C. § 2254.” Turner, 183 F.3d at tampered with and broke into a safe on the premises. 477. We did not specifically consider whether the defendant was “in custody” for purposes of applying the holding in On August 23, 1985, the defendant pled guilty to the Custis. Since Turner was decided, it has been cited by this Indictment. court with approval for the proposition that a defendant may not seek relief from his state convictions in a habeas corpus While the federal district court may have no jurisdiction to petition attacking his federal sentence. Sanders v. United determine the constitutional adequacy of a challenged state States, No. 98-3651, 1999 WL 591455 (6th Cir. July 27, conviction if the petitioner is no longer in custody, Carafas v. 1999) (unpublished); see also United States v. Henderson, LaVallee, 391 U.S. 234 (1968), that is a different No. 98-4087/4369, 2000 WL 298248, ___ F.3d ___, ___ (6th circumstance from a petitioner seeking to challenge the Cir. March 23, 2000) (citing the holding in Turner in the constitutional validity of a guilty plea in state court by error4 context of a direct appeal of the defendant’s federal sentence); coram nobis, or by seeking some other extraordinary relief. United States v. Caldwell, No. 97-5252, 2000 WL 331950 Smith had the opportunity to raise a Boykin v. Alabama, 395 (6th Cir. March 23, 2000) (same). There has been no U.S. 238 (1969), challenge in state court through affidavit, or indication that Turner would carve out the exception made in otherwise. Clark for defendants who are not “in custody” for their state sentences. Therefore, in the absence of en banc review or a Even if we were disposed to look favorably upon the Clark Supreme Court decision to the contrary, Turner forecloses the approach, as Smith urges, we note an important distinction. possibility that Smith can use § 2255 to challenge his ACCA In Clark, the petitioner was deemed to have “tried and failed sentence by collaterally attacking his predicate convictions in to set aside his [later challenged] state convictions.” Clark, federal court without attempting first a challenge in state 203 F.3d at 361. It is subsequently stated that “apparently . . . court. Clark has exhausted his state remedies.” Id. at 362. In the interest of federalism, we reject a challenge to a state Smith has never, since 1994, when we reached our first conviction made for the first time in a § 2255 proceeding decision in this case, made any effort in state court to challenging a federal sentence. Clark is not authority for this challenge the two convictions now at issue. Whether or not he may now be foreclosed from proceeding in state court, or may not “succeed in such a challenge,” the record would at least reflect some effort on his part to have set aside at least 4 In similar circumstances, we stated in United States v. Caldwell, 2000 WL 331950, at *8 n.4, No. 97-5252 (6th Cir. March 23, 2000) (unpublished), that Turner required the petitioner first to “challenge the state convictions either in state court or in a § 2254 petition.” 8 Smith v. United States No. 99-3340 No. 99-3340 Smith v. United States 9

one of these convictions.3 Such an effort, even in the absence On January 25, 1984 the defendant plead guilty to the of successfully setting aside a state conviction, might lesser included offense of Breaking and Entering. conceivably present us with a different circumstance. Defendant’s counsel conceded at the original sentencing that 11/22/84 Breaking 8/23/85, Chillicothe 4A1.1(a) he made no effort to obtain a transcript of defendant’s guilty and Entering Correctional pleas in state court, but the record and transcript apparently with Violence Institutional were destroyed by a fire. Specification, 2 to 5 years Grand Theft with 2 years As acknowledged by the district court, the presentence with violence mandatory Specification, sentence Count 1 report reflects the following information about Smith’s prior Vandalism 2 to 10 years offenses which are related to his charge in the district court: with Violence with 2 years Specification, mandatory sentence 9/3/83 Aggravated 2/4/84, Ohio 4A1.1(b) Cleveland, Count 2, 2 to 5 Burglary, State Reformatory Ohio Police years with 2 Cleveland, 6 months plus Department years mandatory Ohio cost. Defendant CR195662. sentence Count 3, Police released 6/22/84. all concurrent to be Department. served concurrent with CR185472 CR199240 and CR199703 plus cost. Parole The defendant was represented by counsel, Attorney John 10/25/88, final Hildebrand. release 1/18/90. On September 2, 1983, the defendant was observed The defendant was represented by counsel, Attorney climbing through a bedroom window of an apartment. Richard Dunn. He fled through a front door and was subsequently arrested by police. On November 21, 1984, the defendant and two accomplices broke into a furniture store, by using a The defendant made a statement to a Cuyahoga County bulldozer to knock down the real wall. Police Probation Officer denying involvement in this case. He apprehended the defendant as he attempted to flee from claims he went to the victims [sic] apartment to see if he the store. and a friend could stay there. On August 23, 1985, the defendant pled guilty to the Indictment.

3 2/15/85 Breaking 8/23/85, Chillicothe 4A1.2 In a letter supplemental brief, Smith’s counsel states that “Clark and Entering Correction Application specifically held that if Defendant has exhausted his state remedies and Safecracking, Institution Note No. 3 is not ‘in custody’ . . . then the district court should address the Cleveland, 1 year each Count Defendant’s 28 U.S.C. § 2255 petition.” Smith, however, has made no Ohio Police concurrent plus showing that he has attempted to exhaust his state remedies, if any. Department cost, concurrent Rather, he stated in his brief (p. 12) that “Smith had no reasonable access to review the constitutionality on his prior convictions in State Court.” CR199240. with sentences