Opinion
NO. 95-153.
July 17, 2001
ORDER AND REASONS
Before the Court is Frank Myers' pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the following reasons, the Motion is DENIED.
A. BACKGROUND
On August 29, 1995, Frank Myers pled guilty to conspiring to distribute cocaine base in violation of 21 U.S.C. § 846 and 841(a)(1). On August 8, 1996, this Court sentenced Mr. Myers to a 108 month term of imprisonment. In calculating Mr. Myers' criminal history category, the Court assessed a total of four criminal history points for Mr. Myers' prior convictions in 1989 for possession of a stolen automobile and 1991 for theft and aggravated assault.
On February 22, 2001, Mr. Myers, through counsel, filed a motion in the Criminal District Court for the Parish of Orleans, State of Louisiana, to set aside the 1991 theft and aggravated assault conviction pursuant to Louisiana Code of Criminal Procedure article 893(D)(2). Mr. Myers alleged that he had completed his sentence and complied with all other orders of the sentencing court and therefore was entitled to have his conviction set aside. Judge Waldron of the Criminal district Court granted Mr. Myers' motion on May 1, 2001.
On May 31, 2001, Mr. Myers filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
B. LAW AND ANALYSIS
Mr. Myers argues that he should be resentenced because the 1991 theft and aggravated assault conviction has been set aside. In Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 1739, 128 L.Ed.2d 517 (1994), the Supreme Court stated in dicta that a defendant who successfully attacks a state court sentence may then apply for reopening of any federal sentence enhanced by the state sentence. Numerous courts, including the Fifth Circuit, have adopted this dicta as law and have found a § 2255 motion to be a proper vehicle for such an application. See United States v. Nichols, 30 F.3d 35 (5th Cir. 1994) (per curiam) (Government conceded Custis allowed defendant to reopen sentencing); see also United States v. Lavalle, 175 F.3d 1106, 1108 (9th Cir. 1999) (adopting position of the First, Fourth, Fifth and Tenth Circuits and holding that a defendant who successfully attacks a state conviction may seek review of any federal sentence enhanced because of the prior state conviction). Reopening does not guarantee resentencing, however, as the Court must determine whether a conviction that has been set aside may nonetheless be considered for sentencing purposes. As the Tenth Circuit has explained,
MR. Myers did not provide the Court with any documentation as to which of his two prior convictions had been set aside. However, he refers in his memorandum to paragraph 57 of the PSR, which pertains to the 1991 theft and aggravated assault conviction, and the Government (at the Court's request) reviewed Mr. Myers' state court record and produced documents which further suggest that Mr. Myers is referring to the 1991 conviction. See Gov't Supp. Exs. A-C.
In reopening defendant's sentence, the district court must determine the basis for the expungement or dismissal of the prior offenses and whether they may be included in calculating defendant's criminal history score. Under the Guidelines, an expunged conviction may not be included in a defendant's criminal history calculation. Convictions reversed or vacated for reasons related to constitutional invalidity, innocence, or errors of law are expunged for purposes of the Guidelines and therefore cannot be included in criminal history calculations. When convictions are set aside for reasons other than innocence or errors of law, such as to restore civil rights or remove the stigma of a criminal conviction, those convictions are counted for criminal history purposes. Since expunged convictions are not counted in calculating criminal history, the district court must determine whether defendant's state convictions were expunged or treated as expunged under state law.United States v. Cox, 83 F.3d 336, 339-40 (internal citations and footnote omitted); see USSG § 4A1.2, cmt. n. 10 (2000) ("A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. § 4A1.2 (j)").
The Court finds that, although"set aside," Mr. Myers' 1991 theft and aggravated assault conviction was not"expunged." In United States v. Hayden, ___ F.3d ___, 2001 WL 705509 (9th Cir. June 25, 2001), the petitioner successfully moved under California Penal Code § 1203.4 to set aside two prior convictions used to enhance his federal sentence. The Ninth Circuit rejected the petitioner's argument that these convictions were"expunged" within the meaning of the Sentencing Guidelines so as to require a new sentence. The Court noted that to "`expunge' is `to erase or [to] destroy,' and an `expungement of record' is `[t]he removal of a conviction (esp. for a first offense) from a person's criminal record'"id. at *2 (quoting BLACK'S LAW DICTIONARY 603 (7th ed. 1999)) (modifications in original), but the relevant California penal code section"describes a more limited form of relief. . . ." Id. Among other things, that section contains an"explicit exception for the use of the dismissed conviction in later prosecutions." Id. at *4; see also United States v. Wronko, 15 F.3d 1095, 1994 WL 28341, at * 2 (9th Cir. 1994) (unpublished opinion), cert. denied, 523 U.S. 1111, 118 S.Ct. 1686, 140 L.Ed.2d 823 (1998) (district court properly considered"expunged" convictions for sentencing purposes because Arizona statute provided that expunged convictions may still be used in later criminal proceedings, unless the expungement was related to innocence or constitutional defect). Similarly, Louisiana Code of Criminal Procedure article 893 (D)(2) does not provide for destruction or erasure of the entire record of a conviction but instead provides that"the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses."
Because the 1991 conviction was not"expunged," Mr. Myers is entitled to no relief.
C. CONCLUSION
Because Mr. Myers' 1991 theft and aggravated assault conviction was not"expunged" or treated as"expunged" under Louisiana law,
IT IS ORDERED that Frank Myers' pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENTED.