Opinion
CIV 99-286 LH/KBM
March 8, 2001
ORDER APPOINTING COUNSEL AND FOR SUPPLEMENTATION OF RECORD
This matter is before the Court on Manuel Maldonados Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254, Doc. 1, Motion Requesting Final Disposition, Doc. 15, and Renewed Motion For Appointment of Counsel, Doc. 17, as well as Respondents Answer, Doc. 12. The case was referred to me on December 19, 2000. Doc. 16. For the reasons stated below, I will appoint the Federal Public Defender to represent Petitioner and deny his motion for a final disposition. Counsel will also be required to supplement the record.
I. Background Three Prior Felony Convictions, One Of Which Was Declared Invalid
On at least three occasions over the past several decades, Petitioner has pleaded guilty to various charges and pursued state and federal habeas relief. Because the record before me only contains portions of his prior federal proceedings and it appeared that the issue presented in this proceeding may have been raised in a prior proceeding in this Court, I requested this Courts records in all of his previous federal habeas actions.
In 1973, when he was a juvenile, Petitioner was charged with residential burglary. His case was transferred from Childrens Court to state District Court for prosecution as an adult. He pleaded guilty to the charge and received a sentence of two to ten years in the state penitentiary. E.g., Answer, Exh. B (Attachment A, Criminal Cause No. 24014).
Unless otherwise noted all citations to exhibits are to those attached to Respondents Answer.
In 1977, Petitioner escaped from the penitentiary and was charged accordingly. For this offense, he potentially faced an additional ten to fifty years imprisonment as well as an enhancement as a habitual offender because of the 1973 conviction. Petitioner indicated to his attorney that he believed something was irregular and unfair about his first charge being transferred from Childrens Court. However, counsel believed Petitioner was raising a factual as opposed to a legal challenge to the prior conviction. Counsel presumed the conviction was valid and focused instead on securing a favorable plea bargain in two respects: first, that the prosecutor agree to not charge Petitioner as a habitual offender; and second, to secure a concurrent sentence. Counsel was successful. Petitioner was sentenced to a term of incarceration of ten to fifty years on the escape charge alone, to be served concurrent with the 1973 sentence. Id. (Criminal Cause No. SF-77-97); see also CIV 81-850, 11/23/82 Ev. Hrg. Transcript at 23-30.
In 1980, with the assistance of the State Public Defender, Petitioner successfully challenged the validity of the 1973 conviction in state post-conviction proceedings. The 1973 conviction was declared void because the case was improperly transferred from Childrens Court.
As a result, the District Court was without jurisdiction to accept the plea of guilty to residential burglary. Exh. B, Attachment A at 3-4; see also CIV 81-850, Doc. 26 at 2.
Thereafter, in federal habeas corpus proceedings, Petitioner challenged his 1977 escape conviction arguing that his 1977 plea was involuntary and that counsel had been ineffective in failing to challenge the 1973 conviction. See CIV 81-850, 5/21/81 Transcript at 8. Ultimately, however, that federal habeas petition was dismissed based upon a finding that the 1973 conviction was prima facie valid since it had not been declared void before Petitioner entered his 1977 plea, and concluding that counsels tactical decision at the time was not unreasonable. See CIV 81-850, Doc. 36.
II. The Instant Offense Was Enhanced Based On The Invalid Conviction And Relief Denied In State Proceedings
In 1998, Petitioner was charged with armed robbery and aggravated battery with firearm enhancements. Pursuant to a written plea agreement dated May 11, 1998, he pleaded no contest to the charges. The plea agreement set forth three prior felonies: the 1973 residential burglary, the 1977 escape, and a 1981 conviction for possession of a deadly weapon by a prisoner in 1981 in Criminal Cause No. SF-81-18. Exh. A-1, p 1. In the plea agreement, Petitioner specifically admitted he had been convicted of the listed three prior felonies and that the convictions for these crimes are valid and free from error. Id. The agreement also specifically informed Maldonado that he would be sentenced as an habitual offender with three prior felony convictions, and his sentence will be enhanced by eight (8) years of mandatory incarceration. Id., p. 2. Had he been charged with only two prior offenses, Petitioner would have only received four years additional incarceration. See N.M. STAT. ANN. § 31-18-17(B), (C).
After the plea hearing but prior to the sentencing hearing, Petitioner alleges that he told his attorney that the 1973 conviction had been vacated as null and void and asked her to investigate. Exh. B at 2. She allegedly refused to do so on the ground that prior convictions are presumptively valid.
At his July 16, 1998 sentencing, Petitioner attempted to withdraw his plea and secure a new attorney. He informed the trial judge that his 1973 burglary conviction had in fact been vacated and that his trial attorney was ineffective because she refused to investigate the validity of the conviction. Exh. D, Attachment F. Maldonados attorney did not address the court. The prosecutor argued only that everything had been discussed with Petitioner before he signed the plea agreement. Neither the trial judge, the prosecutor, nor defense counsel addressed whether the 1973 burglary conviction was indeed valid. The trial judge refused to permit withdrawal of the plea and denied Petitioners request to assign new counsel.
THE DEFENDANT: [T]hey're trying to file habitual proceedings on sentence that has been vacated. My attorney tells me theres no record of it, but I know for a fact I was there. There was a hearing. Its in the law books. If she would have just gone to the law books, its there. I think thats sufficient record to prove that the sentence has been vacated. And Im getting eight years for that. I would like to with[draw] my plea.
* * * * *
Also, I would like to move to have my attorney dismissed. I would like another attorney. I know I have not been getting adequate representation. I havent seen her, but twice, both times I told her I did not commit the crime. Theres other things that I wish not to bring out right now. Buts shes not trying to help me. She should have got the law books, she should have seen this, vacated two to ten. She never did. As for me understanding, Im not a lawyer. There is a lot of information here that was discussed, and then some. I went back myself to read it two or three times. I know enough that was vacated, and this is ground to get my plea withdrawn, even if I have to go on a habeas post-conviction. Exh. D, Attachment F at 1-3 (6/16/98 transcript of sentencing hearing).
Taking into account the eight-year habitual offender enhancement, the trial judge sentenced Petitioner to thirty-two years incarceration, but consistent with the plea agreement, suspended eighteen years of that sentence for an actual term of imprisonment of fourteen years. Exh. A. Petitioner then unsuccessfully pursued state post-conviction relief on two occasions and then filed this federal action.
III. States Answer
Similar to his 1981 federal habeas petition and as he raised in state post-conviction proceedings, here Maldonado argues that his sentence could not be enhanced based on three convictions because the 1973 conviction is void and that counsel was ineffective in failing to investigate the validity of the conviction.
A. Fair Presentation
The States Answer raises two grounds why this petition should be summarily denied. While conceding exhaustion on the one hand, on the other it argues that Maldonado did not raise his claims as federal claims. However, I note that fair presentation is part of the exhaustion requirement.
Fair presentation of a prisoners claim to the state courts means that the substance of the claim must be raised there. The prisoners allegations and supporting evidence must offer the state courts a fair opportunity to apply controlling legal principles to the facts bearing on his constitutional claim. Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997); see also O Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999).
There appears to be no dispute that Petitioner raised the same two issues he raises here in state post-conviction proceedings. In his own words, Maldonados first state habeas petition asserted:
The Court in Esslinger v. Davis, . . . addressed an on point claim of ineffective assistance of counsel where the attorney had failed to adequately investigate the clients prior criminal history, and the Court ruled that the attorneys performance fell way beyond that required by law i.e.; that the attorneys performance in that case constituted ineffective assistance of counsel.
Exh. B at 2; see also Esslinger v. Davis, 44 F.3d 1515, 1529-1530 (11 th Cir. 1995). In addition, the standard state form which he used to petition the New Mexico Supreme Court for certiorari contains boilerplate language listing all applicable federal and state constitutional provisions as a basis for granting certiorari. Exh. D at 3. Thus, it would appear that the claims were fairly presented to the state courts on three occasions.
B. State Law
The State also argues that an enhancement based on Maldonados plea agreement and acknowledgment of prior felonies is solely a matter of state law and errors of state law cannot be the basis for federal habeas relief. While it is true as a general proposition that habeas relief cannot be granted on the basis of state law errors, here Petitioner is raising an ineffective assistance of counsel claim. Furthermore, my preliminary research suggests that it is both a denial of both federal due process as well as state law to enhance a sentence based on erroneous information such as a void conviction.
In Towsend v. Burke, for example, a state trial judge relied on invalid convictions in considering the sentence he imposed after defendant pleaded guilty to state charges. The United States Supreme Court noted that defendant was uncounseled and that had an attorney been present, the attorney would have been under a duty to prevent the court from proceeding on such false assumptions and perhaps a duty to seek remedy elsewhere if they persisted. 334 U.S. 736, 740 (1947). It reversed a state court denial of habeas relief saying that this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand. We would make clear that we are not reaching this result because of the petitioners allegation that his sentence was unduly severe. . . . It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process. Id. at 741. Likewise, under New Mexico state law, an enhancement cannot be imposed under the habitual offender statute based on a void conviction. E.g., State v. Moser, 78 N.M. 212, 214, 430 P.2d 106, 108 (1967) (Identity is not the only issue in a recidivist proceeding. Our habitual criminal statute contemplates valid convictions which have not been vacated), overruled on other grounds, State v. Orona, 97 N.M. 232, 234. 638 P.2d 1077, 1079 (1982); State v. Edmondson, 112 N.M. 654, 657 n. 2, 818 P.2d 855, 858 n. 2 (Ct.App.) (could not legitimately use the [invalid] conviction for habitual-offender sentencing), cert. quashed, 112 N.M. 641, 818 P.2d 419 (1991).
Cases on both direct appeal and in the § 2254 and § 2255 context suggest that due process mandates resentencing where a Petitioner establishes that the sentence was in fact based on a void conviction.
See e.g., United States v. Tucker, 404 U.S. 443, 448 (1971); Coss v. Lackawanna County District Attorney, 204 F.3d 453, 471 (3 rd Cir.) (Many federal appellate cases, including some of our own, support the basic concept that resentencing is the default form of relief in habeas challenges to invalid sentence enhancements. The law of our Court is actually quite clear. In Clark [v. Pennsylvania, 892 F.2d 1142 (3 rd Cir. 1989)], we held that where a Pennsylvania sentencing judge wrongly considered to previous Pennsylvania convictions obtained while Clark was a juvenile but without appropriate juvenile procedures, the appropriate relief on Clarks § 2254 petition challenging the enhanced sentence was resentencing on the later, wrongfully enhanced charge), cert. granted, 121 S.Ct. 297 (2000); see also United States v. Sunrhodes, 831 F.2d 1537, 1542 (10th Cir. 1987) (direct appeal stating that we recognize a due process right to be sentenced only on information which is accurate); Young v. Thomas, 100 F.3d 966, 1996 WL 654406 (9th Cir. 1996) (granting § 2254 relief with instructions to state court to resentence based on [defendants] true criminal record); United States v. White, 951 F.2d 1261, 1992 WL 1691 (10th Cir. 1992) (the sentencing judge based the sentence upon materially false information. . . . This Circuit recognizes a due process right to be sentenced only on information which is accurate. Remanding with instructions to resentence and disregard false information).
One circuit recently held that it is objectively unreasonable for an attorney to rely on the prosecutors representation that prior convictions are valid and fail to investigate their validity as requested by a defendant, when the convictions are in fact invalid and their validity easily ascertainable. United States v. Russell, 221 F.3d 615, 620-621 (4th Cir. 2000); but see United States v. Cox, 83 F.3d 336, 341 (10 th Cir. 1996) ([e]ven if counsel did not thoroughly investigate defendants prior convictions, he did not render ineffective assistance because the prior convictions are presumed valid.). The United States Supreme Court recently held that [a]uthority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance. Glover v. United States, 531 U.S. ___, 121 S.Ct. 696, 700 (2001) (emphasis added).
On the other hand, there is a competing line of cases that approaches the issue from a different perspective. There is authority for the proposition that pleading guilty to being a habitual offender waives any challenge to constitutionality of the prior convictions that provide the basis for the enhancement.
See, e.g., Johnson v. Puckett, 930 F.2d 445 (5th Cir.), cert. denied, 502 U.S. 890 (1991); Bailey v. Cowley, 914 F.2d 1438, 1441 (10th Cir. 1990); see also Walker v. Champion, 162 F.3d 1175, 1998 WL 712588 (10th Cir. 1998); Wiedemer v. Marr, 107 F.3d 22, 1997 WL 44934 (10 th Cir. 1997); Glaze v. Hargett, 986 F.2d 1427, 1993 WL 53111 (10 th Cir. 1993); Alim v. Cowley, 947 F.2d 953, n. 2, 1991 WL 230178 (10th Cir. 1991).
Finally, I note that a case now before the United States Supreme Court on certiorari presents the issue whether § 2254 precludes under all circumstances, a challenge upon fully expired conviction that was used to enhance a current conviction . . . for which the prisoner is presently in custody. See Lackawanna County District Attorney v. Coss, No. 99-1884, Petitioners Brief, 2000 WL 1742006 (11/24/00). It may be that resolution of this case will turn on the type of relief sought by Petitioner. It is not clear whether Maldonado seeks to withdraw his plea or be resentenced on the basis of two prior convictions. In his first state post-conviction proceeding he apparently sought resentencing, requesting that his sentence be vacated or set aside. Exh. B at 2. In his second state post-conviction proceeding he requested the court to reverse and remand for a new trial. Exh. D, Attachment at 7. Here, our standard habeas form provides a prayer for such relief to which he may be entitled. Doc. 1. Because Petitioner challenges the enhancement as unlawful because it was based on three, instead of two, prior convictions, here it appears that he is seeking resentencing rather than to withdraw his plea. See Docs. 1, 13.
Moreover, the record before me is incomplete. For example, there is no transcript of the 1998 plea proceeding. I was only able to ascertain the status of the 1973 conviction after retrieving this Courts own records. The transcript of the proceedings in his 1981 federal habeas case references other legal matters, but it is unclear whether Petitioner had other felony convictions by 1998 in addition to the three used for the habitual offender enhancement.
I mention these omissions and discuss the cases above briefly, not to render a decision on the issues or to suggest how I will ultimately decide, but to provide the basis for my conclusion that it is appropriate to appoint counsel and require that counsel supplement the record with materials and argument supporting their positions.
Rule 7(a) of the Rules Governing Habeas Corpus Under Section 2254 provides that [i]f the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition. Rule 5 permits the Court to order further portions of the existing transcripts be furnished.
Wherefore,
IT IS ORDERED AS FOLLOWS:
(1) Petitioners Renewed Motion For Appointment Of Counsel (Doc. 17) is GRANTED, and that the Federal Public Defender be appointed to represent Petitioner;
(2) The attorneys shall submit a proposed schedule no later than thirty days after the appointment of counsel for Petitioner for supplementation and briefing;
(3) Petitioners Motion Requesting Final Disposition (Doc. 15) is DENIED, as the matter is not yet in a posture where final disposition can be entered; and
(4) The Clerk is directed to retain the files of Petitioners prior federal actions (CIV 81-850, CIV 94-1254) with this case until final disposition, so that counsel may review them, if they so wish.