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                                                               WRIT NO.



                           "EX PARTE                                                     §                              IN THE CRIMINAL.
                                                                                         §                              DISTRICT COURT NO. ~ OF
                                                                                         §·"                            DALLAS COUNTY I   TEXAS


                                                                     ORDER DESIGNATING ISSUES



                                          ~aving reviewed the Applicant's Application for Writ/ of Habeas_

                            Corpus, the Court finds                            tha~      the.re are controverted, previously
                            unresolved issues of fact which are material to the legality of the
                           Applicant's confinement.

                                         _The Court appoints FRED C. MCDANIEL to resolve the issues and
                                                                                  .···       .

                           pr~pare                findings of fact and conciusions of law for the Court. The
                           issues may be resolved by affioavits, depositions, interrogations,



                                        The Clerk of the Court is ORDERED to send a copy ofthis order

                      · to the Court of Criminal Appeals,· Applicant, or Applicant's counsel

                          if the Applicant is represented by counsel, and to counsel for the


                   <',   State~IGNED                      AND ENTERED        thiS~'day ,----:;-r-~---·
                                                                                                 of                        ___· ---""--'             2001..


 iE STATE.OF TEXAS
 JUNTY OF OAL~f.\S
      i, Jim H~ar;;~:1; Dis~r;r:t C!erk of
 ~llns Cour•t;;, Tc-,x::zG, dc- ho;oby certify
 =~ t.h~.~ fo~·r:~;~}:-::_;:~·: ~-;;, ~~ t·u:~ cJr~d correct
                                                                                             ',,dfb·adl
 ;~te"'intr;_~'/'~~;:~~~:: :::::.~ <?n record now
 ·:tns::3_ r:.y   ·,)!2;L:;r=f;it'¥'~ of                       I
 .;ca, th:3        · -~ (-~..~Jj--'12..


             ;~tfJ'_;F"
                               (,__.,     .  EXHI13~T p  :.#llu,) .· "; ~0 F-9573890-NL         -------~--
 ·Nf41'1ED ATTORNEYS. AND ANNOUNCED READY FOR TRIAL.       DEFENJ.JHNT APPEARED IN PERSON IN.
  OPEN: COURT.       WHERE  DEFENDANT . WAS· NOT .· REPRESENTED BY             COUNSEL    DEFENDANT<
  KNOWINGLY, INTELLIGENTLY! AND VOLUNTARILY WAIVED THE RIGHT TO REPRESENTATION~
  BY COUNSEL. DEFENDANT         N PERSON AND IN WRITING. IN OPEN COURT WAIVED HIS ·.
  RIGHT OF TRIAL BY ~URY WITH THE CONSENT .AND APPROVAL OF HIS ,ATTORNEYA THE .·
  ATTORNEY. FOR THE STATE AND THE COURT.· WHERE SHOWN ABOVE THAT ··THE CHHRGING
-lNSTRUMENT WAS BY INFOAMATION INSTEAD OF INDICTMENT! THE. DEFENDANT DIDt 'WITH
  THE CONSENT AND APPROVAL OF HIS ATTORNEY WAIVE H S RIGHT TO PROSECU ION BY
  INDICTI"'ENT AND AGREE TO BE TRIED ON AN INFORMATION. ALL·.· SUCH WAIVERS
  AGREEMENTS AND CONSENTS WERE IN WRITING AND FILED IN THE PAPERS OF THIS CAUS~
  PRIOR TO THE DEFENDANT ENTERING. ·HIS PLEA HEREIN .             rTHE      DEFENDANT WAS DULY
  ARRAINGED AND IN OPEN COURT ENTERED THE ABOVE PLEA TO THE CHARGE CONTAINED IN
  THE CHARGING INSTRUMENT.             DEFENDANT WAS ADMONISHED BY THE COURT OF THE
  CONSEQUENCES OF SAID PLEA AND DEFENDANT PERSISTED IN ENTERING SAID PLEA, AND IT
  PLAINLY APPEARING TO THE COURT THAT DEFENDANT IS MENTALLY COMPETENT- AND ~sAID'.
  PLEA .lS'FREE AND VOLUNTARY THE SAID PLEA WAS ACCEPTED BY THE COURT. AND IS NOW
  ENTERED OF RECORD AS THE PLEA HEREIN OF.DEFENDANT. DEFENDANT IN OPEN COURT, IN-
  ~§~~~~~tA~~~~~G A~~I~~gs~~§x~R~~A~Yo~F o~.H~I¥~~~~~~Gi A~5T~g~§~6 • 1-~~~ T~~P~e~~~~~£
  MAY BE.· BY STI,...ULATION CONSENTED TO THE INTRODUCT ON OF iESTIMONY ~ALLY, ·BY
  .JUDICIAL CONFESS I ON, BY AFFIDAVITS A WRITTEN STATEI"'ENTS OF WI TNESSE:S ~-AND ANY
  OTHER DOCUMENTARY EVIDENCE. SUCH WHIVER AND CONSENT HAVING BEEN A.~R '·                    BY THE
 ·COURT·. IN WRITING AND FILED IN THE PAPERS OF THE CAUSE. THE~-                U~ · V        HEARD
  DEFENDANT,.s WAIVER oF ·rHE         READING oF · THE CHARGING IK              M ·     ·  ENDANT··s
  PLEA THERETO THE EVIDENCE SUBMITTED AND~THE ARGUMENT                   ·     CO     C IS OF THE
  OPINION FROM'THE EVIDENCE SUBMITTED THAT DEFEi\IDANT~"T-~·           Ui ,I-f      THE'OFFENSE   ~S _
  SHOV.JN ABOVE AND THAT THE OFFENSE WAS COMMITTED~1'· D D . E ANT . ON THE DATE
  SET FORTH ABOVE. THE ·COURT FURTHER MAKES ~ N~I S. o TO · DEADLY WEAPON,
  ~=
   86    ~~ VIOLENCE, BIAS OR PREJUDICE, AND R~ -~ IO-. OR REPARATIO~ AS SET FORTH

        :. ·...    AND WHEN SHOWN ABOVE THAT THE CHARGING INSTRUMENT COI~TAINS ENHANCE-
: MENT PARAGRAPH< S > , WHICH WERE NOT WAIVED· OR DISM I SS.EDt THE COURT,· AFTER HEARING
  THE DEFENDANT,.S PLEA TO SAID PARAGRAPH<S> AS SET OU ABOVE AND AFTER HEARING
  FURTHER EVIDENCE . ON THE ISSUE OF PUNISHMENT, MAKES ITS FINDING AS SET OUT
  ABOVE.        IF TRUE THE COURT IS OF THE· OPINION AND FINDS DEFENDANT HAS BEEN
  HERETOFORE CONViCTED OF SAID OFFENSES<S> ALLEGED IN THE SAID ENHANCEMENT                                                 'I
  PARAGRAPHCS) AS MAY BE SHOWN ABOVE.
                   AND WHEN SHOWN ABOVE THAT THERE .WAS A PLEA BARGAIN AGREEMENT . THE                                     .j
  DEFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD FOLLOW OR             REJECT' SUCH
  AGREEMENT AND IF THE COURT RE~ECTED SUCH AGREEMENT THE DEFENDANT WAS GIVEN AN
  OPPORTUNITY TO WITHDRAW HIS PLEA PRIOR TO ANY FINDING ON THE PLEA .
       .· ·        WHEN IT IS SHOWN ABOVE THAT R~STITUTION HAS! BEEN ORDERED BUT THE
  COURT DETERMINES THAT THE INCLUSION OF THE VICTIM,.S NAME AND ADORES~ IN THE
  JUDGMENT IS NOT IN THE BEST INTEREST OF THE VICTIM             THE PERSON .OR AGENCY
  WHOSE NAME AND ADDRESS IS SET. OUT IN THIS ~UDGMENT WfLL ACCEPT AND FORWARD THE
  RESTITUTION PAYMENTS TO THE VICTIM.                                    .
              AND WHEN IT IS SHOWN BELOW' ·.THAT PAYMENT OF THE COSTS OF LEGAL
 SERVICES PROVIDED TO THE DEFENDANT IN THIS CAUSE HAS BEEN ORDERED · THE COURT
 FINDS THAT'THE DEFENDANT HAS THE FINANCIAL RESOURCES TO ENABLE TH~'DEFENDANT TO
 OrFSET-, SAID COSTS IN T!-!E. AMOUNT ORDERED • .             .                  -                                 ~ ~.-




     ! .
 ANYTHING
             THEREUPON THE SAID DEFENDANT WAS ASKED BY THE COURt -~HETHER HE HAD;
          TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIMt AND HE'·,
 ANSWERED NOTHING IN BAR THEREOF    AND IT APPEARING TO THE COURT        HAT THE·,
 DEFENDANT IS MENTALLY COMPETENT AND UNDERSTANDING OF THE PROCEEDINGS~ THE COURT
 PROCEEDED IN THE PRESENCE OF THE DEFENDANT AND HIS ATTORNEY Tu PRONOUNCE ;
 SENTENCE AGAINST THE DEFENDANT.            .
        ·... ·.  IT IS, THEREFORE, ORDERED · AD~UDGED AND DECREED BY· THE COURT THAT \
  3AID .JUDGMENT ·AS SET FORTH ABOVE         iS HEREBY IN .ALL THINGS APPROVED AND -\.
  :ONFIRMED.1.. AND THAT SAID DEFENDANT BE: ADJUDGED GUILTY OF THE OFFENSE AS SHOWN
  ~BOVE.2, ANu THAT SAID DEFENDANT   IS SENTENCED TO A TERM OF       IMPRISONMENT OFf.
  =I NE uR' BOTH AS SET FORTH .ABOVE AND SHALL BE CONFINED FOR THE · ABOVE NAMED ·· -·
  rERM IN ACCO~DANCE WITH THE PROV f S IONS OF LAW GOVERNING SUCH PUNISHMENTS.    IT ..
  £S FURTHER ORDERED THAT THE DEFENDANT PAY THE FINE~ UNLESS PAYMENT OF T~E FINE
  ~AS BEENPROBATED, AS SHOWN ABOVE.1.. COURT COSTS, CO~TS   AND EXPENSES OF LEGAL ,
   3ERVICES PROVIDED BY THE COURT AP,...OINTEOATTORNEY IN THIS CAUSE, IF ANY; AND
   ~ESTlTUTION OR R,EPARATION AS SET FORTH HEREIN.                  .. . .
        .     IT FIIRTHER APPE'AR I NG TO THE COURT THAT THE BEST I NTEBESI OF I Hi:
  )UBLIC AND THE DEFENDANT WILL BE SERVED BY THE SUSPENSION OF T~E IMPOSITION 0~
  ;ENTENCE HEREI~;    •
                                                                                                          . ·;
                                                                                                               I
                                                                                                            I
                                                                                                           I
                                                                                                          ;.:.
                                                                                             ----j-   --~~-~ •


               .. ,.;


                ·   ....




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·.,                    -·
                        --------~   --- - --
      ·--~-----
               . .. . . . . · \ /
                                                 -~
                                     • · EXHIBIT ~        ') i  1
                                                                   NO F-9573890-NL
                                                                   ·   ·  ·. .· . ·  ·
                                                                                               . ..(··. ·. · .   ·. · ... ·.        ·:±t·llb\ .· -,_
         .    IT. :IS 'FURTHER~ORDERED, ADJUDGED    AND DECR':l;;~D BY THE COURT THAT   THE
IMP.OSITJ.DN OF SENTENCE HEREIN IS HEREBY SUSPENDED FOR A PERIOD OF TIME AS. SHOWN·
ABOVE~ THE FINE IMPOSED.l. IF ANY.z. IS TO BE PAID OR PROBATED AS SHOWN· ABOVE.         THE.
DEFENDANT IS HEREBY··PLALED ON CuMMUNITY SUPERVISION FOR A PERIOD OF . TIME AS.
SHOWN·ABOVE SUBJECT TO THE TERMS AND CONDITIONS OF COMMUNITY             SUPERVISION   THIS·
DATE. IMPOSED BY LAW .AND BY· THE 'COURT AND· SERVED UPON THE DEFENDANT.                    ~·r- ·
                                                                                         ... '
      ...·· ·.                             CONDITIONS OF COMMUNITY SUPERVISION ARE ATTACHED. HE.RE. TO~.ND   ARE
INCDRPO~ATED                                FOR .ALL PURPOSES AS .A PART OF THIS .JUDGMENT.  . •. f~ ·     .     .
     .· .. ·. . FOLLOWING THE DISPOSITION OF THIS CAUSE THE 0
WAS,' IN OPEN COURTf PLACEP UPON. A CERTIFICATE OF
IS ATTACHED       HERE 0 AND  IS  INCORPORATED BY          CE
                                                                                                                                       FIN~E;\SR~,~l     ~~
                                                                                                                                                   t<fbA. "'S I

                                                                                                                                      hU·~ :\_.~.)·~~ART OF THIS
                                                                                                                                                                  RPRINT
                                                                                                                                                              ERTIFI. CATE. ·
.JUDGMENT.                            ·   · ·  .        -   ·1                                                                                               .    ·        ..-
   _·· .··· ' A PRESENTENCE INVESTIGATION
APPLICABLE PROVISIONS OF LAW.           · .
                                                                                                                               WAS~D
                                                                                                                               . , ~
                                                                                                                                           .·   D . IN   ACCORDANCE WITH
                                                                                                                                                            ·
                                                                                                                                                                                 THE .
                                                                                                                                                                                    ·




                                   COURT COSTS IN THE AMOUNT OF $124.50




                                                                                                                                                                                              '_.;'



                                                                                                                               .JUDGE PRESIDING




                                                                                                                                                                      ..
                                                                                                                                                                      ·
                                                                                                                                                                                     ··,·;.       •'




                                                                                                                                                                                         .. ....




            .. ·.


                                  .' ~   .'.




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                                                                                                                                                ~.                    i
- Ul".l"l         .L ..                                                      I           S"r:ATE                   .JAIL      ~EXHIBIT~.~ F'ROBATI9N ·
:REV~                     · ~~·~ /0 1 /94 >                                                                                    ·-~   ...
                                                                              NO.               F-957~890-NL

"HE STATE OF TEXAS                                                                                                         IN THE CRIMINA( riiSTRICT
IS.                                                                                                                        COURT 5
IILTON VERAN WILLIAMS                                                                                                      DALLAS COUNTY,'.TEXAS                              .
                                                                                                                                                                              '



                                                                  .JUDGMENT    COMMUNITY SUPERVISION
                                                                 . PLEA OF GUILTY ORNOLO CONTENDERE
                                                                               .JURY WAIVED

                                                                                                                              .JULY      TERM, A.D., 1995
 UDGS:PRESIDING:                                         MANNY ALVAREZ                                                        DATE OF .JUDGMENT: 07/24/9S

 TTORNEY                                                                                                ATTORNEY                 . .
 OR STATE: . MALCOM HARDEN                                                                              fOR DEFENDANT: SCALA BYERS.·                                          \:,

 --'--',--'--------------- -·--·-----------------------------·
  FFENSE·.
  DNV I. CTED OF:                                                          THEFT OF;PROPERTY. OF. THE VALUE OF $1,500
                                                                            LESS THAN        $20,000                                                 ~.-FR~~UT
                               DEGREE:                STATE .JAIL
                                                                                                                                           ~r ~'~
                                                                                                                                           CCi~~D: :      04/07/95
                                                                                                                                                                          .
  -!ARGlNG
  ~STRUMENT:                          INDICTMENT

  ~RMS  OF PLEA BARGAIN
   rN DETAIL):   · · 1 YEAR STATE .JAIL                                                           PRO~ATED           3 YEARS, FINE           $~:00


   _EA TO ENHANCEMENT                                                                                              ·.FINDINGS ON
   'RAGRAPH<S>~   N/A                                                                                              .ENHANCEMENT: N/A

   :NDINGS ON
   lEADL Y WEAPON                                                                NO FINDING
   liAS.·OR PRE.JU6ICE,
   IND/OR ·
   :AMILY. VIOLENCE:
   ---.,-----------------....._.
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                                                                                                                   ___________________                                            ..,_., .·
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    1F-ostrh ......                                                                                                                         COSTS: ·YES                             . ·.· :=·.\


    NISHMENT AND
    ACE OF     .    1 YEARS     ,
    NFINEMENT:. CONFINEMENT IN THE STATE . .JAIL DIVISION
                 OF THE TEXAS DEPARTMENT .OF CRIMINAL .JUSTICE
                 AND A FINE OF $300.00
    ----'-----------------_,.;....,------------.,----------                                                                                                                             :' . ·.·
     RIOD .OF SUPERVISION:                                                       3 YEARS                                     DATE TO COMMENCE:              07/24/95                              "

     I\IE PROBATED:                                 NO                                                                 RESTiTUTION/REPARATt.ON: NO

     \/CURRENT UNLESS OTHERWISE SPECIFIED. •
                                                                                                                                                             :   ..                         ..':·




                                                                                                                                                                                  ··:: ·..
                                                                                                                                                                                    ··.··       ..... :.
          . . ON THIS DA.Y SET FORTH ABOVE THE ABOVE STYLED AND NUMBERED CAUSE CAME
           TRIAL. THE STAtE OF TEXASAND DEFENDANT APPEARED BY AND THROUGH THE ABOVE •'::··_.;:·._.
                                                                                      ··. ,··
                                              ··. ·.·
                    ...   I'
                                                                VOL. 339 PAGE.122

                                                                           --- - -----   ------·- -----·,--.   -




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                                      t=_{ \-\   1:~ 1.1   *t\!\
   OKLAHOMA INNOCENCE PROJECT
                          Oklahoma City University School of Law




May 27, 2014

Milton Williams, #399375
Oklahoma State Penitentiary
P.O. Box 97
McAlester, OK 74502

Mr. Williams:

        We have received your correspondence postmarked July 16, 2012. forwarded from the :'
pffice of Craig Watkins, Criminal District Attorney of Dallas County, Texas. This letter is to
inform you thatwe cannot assist you with your legal matter. We receive numerous requests
for assistance and unfortunately are not able to help everyone. Under our guidelines, the
Oklahoma Innocence Project serves the state of Oklahoma for investigating and litigating claims
of actual innocence.                              )

         Therefore, we are prohibited from providing materials or giving legal advice. For your
convenience, we have included some generalized information related to our case acceptance
criteria.

       This does not mean that we believe you to be guilty. It simply means that we do not
have the resources to provide the assistance you are requesting. We wish you the best in your
endeavor for justice.




      r
     oma Innocence Project

TRM:jam

ENCLOSURE




2501 N. Blackwelder Ave., Oklahoma City, Oklahoma 73106-1493 · {405) 208-6161 ·Fax {405) 208-6171
                                                                                  .   ·.~~·   ·-·................ ····-·

....: .... ·   ...
                            '.                                                                                                                Page 1 of7



                     westiaw.


                                                                                                                           Date ofPrinting: Aug 04,2009
                                                                                                                                                          ot....~--·-

                                                                        KEYCITE

                     f>   U.S. v. Stallings, 301 F.3d 919 (8th Cir.(Neb.) Aug 23, 2002) (NO. 01-3800)
                            Citing References: limited to Tenth Circuit Ct. App., New Mexico, Other Court, selected document
                                                                             types
                                                                  Positive Cases (U.S.A.)
                                                                        **      Cited
                     C             1 U.S. v~ Sierra-Estrada, 248 F~1 Appx. 973, 987 (lOth Cir.(Utah) Oct 01, 2007) (Table, text in
                                    · WESTLAW, NO. 05-4086, 05-4117) "HN: 3 (F3d)
                     H             2 U.S. v. Alvarado, 458 F.Supp.2d 1266, 1268+ (D.N.M. Jul20, 2006) (NO. CR 05 377 BB) HN: 3
                                     (F3d)




                                                                                                                                       \ ..



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                                                                                                                                       ...
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                                                                                                                          Page 2 of7



  westikw
  301 F.3d 919                                                                                                             Page 1
  301 F.3d919
  (Cite as: 301 F.3d 919)


                                                                 ant ample time to go to trial, and to plan his trial
            United States Court of Appeals,                      strategy with full knowledge of the consequences of
                    Eighth Circuit.                              a potential guilty verdict. Comprehensive Drug Ab-
        UNITED STATES of America, Appellee,                      use Prevention and Control Act of 1970, §
                           v.                                    411(a)(1), 21 U.S.C.A. § 851(a)(1).
           Pablo STALLINGS, Appellant.
                    No. 01-3800.                                  [2) Sentencing and Punishment 350H ~1361

               Submitted: May 13, 2002.                          350H Sentencing and Punishment
                 Filed: Aug. 23, 2002.                              350HVI Habitual and Can{er Offenders
                                                                       350HVI(K) Proceedings
 Defendant was convicted in the United States Dis-                        350Hkl361 k. Notice of Intent to Seek
 trict Court for the District of Nebraska, Lyle E.               Enhancement. Most Cited Cases
 Strom, J., of conspiracy to possess with intent to              Defendant received timely notice of government's
 distribute cocaine base. De~endant appealed. The                intent to seek sentencing enhancement based upon
 Court of Appeals, Melloy, Circuit Judge, held that:             defendant's prior convictions, pursuant to notice
 (1) defendant received timely notice of govern-                 and procedural requirements of statute allowing
 ment's intent to seek sentencing enhancement based              such enhancement, in prosecution for conspiracy to
 upon defendant's prior convictions; (2) prior felony            possess with intent to distnbute cocaine base,
 drug conviction could not be used to enhance de-                where government filed its notice a few days prior
 fendant's sentence; and (3) evidence was sufficient             to the commencement of defendant's trial. Compre-
 to support conviction.                                          hensive Drug Abuse Prevention and Control Act of
                                                                 1970, § 411(a)(1), 21 U.S.C.A. § 851(a)(i).
 Affirmed in part, reversed in part, and remanded for
 resentencing.                                                   [3] Sentencing and Punishment 350H €:::=:>1330

                    West Headnotes                               350H Sentencing and Punishment          .
                                                                    350HVI Habitual and Career Offenders
 [1] Sentencing and Punishment 350H €:::=:>1366                        350HVI(I) Subsequent <::;ircumstances Af-
                                                                 fecting Prior Adjudication
· 350H Sentencing and Punishment                                           350Hkl330 k. In General. Most Cited
      350HVI Habitual and Career Offenders
         350HVI(K) Proceedings                                   Sentencing and Punishment 350H €=:>1338
            350Hkl363 Recidivist or Ha\titual Of-
  fender Charge                              !                  350H Sentencing and Punishment
               350Hkl366 k. Time for Filing or Insti-              350HVI Habitual and Career Offenders
  tuting Proceedings. Most Cited Cases                                 350HVI(I) Subsequent Circumstances Af-
  To satisfy the procedural and notice requirements             fecting Prior Adjudication
  of filing an information for purpose of sentencing                      350Hkl338 k. Matters Related to Sen-
  enhancement based upon defendant's prior convic-              tence. Most Cited Cases
  tions, the government must file its information be-           Prior felony drug conviction could not be. used to
  fore jury selection begins, thus allowing the defend-         enhance defendant's sentence for corispiracy to pos-




                         © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.




                                                          n   , •• n   re,   ......,.....,.... ...,. ............. ,...
                                                                                                        Page 3 of7


  301 F.3d 919                                                                                            Page2
  301 F.3d 919
  (Cite· as: 301 F.3d 919)


 sess with intent to distribute cocaine base, where                          110kl144.13(3) k. Construction
 prior conviction was never properly entered against        in Favor of Government, State, or Prosecution.
 defendant; although defendant enter~d plea of nolo         Most Cited Cases
 contendere in California state court to prior offense,
 sentencing documents showed that he was sen- .             Criminal Law 110 ~1144.13(5)
 tenced to probation, but imposition of sentence was
 suspended, and his probation was not revoked, .pre-       110 Criminal Law
 cluding entry of judgment against defendant under             11 OXXN Review
 California law. Comprehensive Drug Abuse Pre-                    llOJCXIV(M) Presumptions
 vention and Control Act of 1970, § 411(a)(1), 21                    110k1144 Facts or Proceedings Not
 U.S.C.A. § 85l(a)(1); West's Ann.Cal.Penal Code §         Shown by Record
 1203.2.               ;;                        . .                    11 Okl144 .13 Sufficiency of Evidence
                                                              .            110k1144.13{5) k. Inferences or
  [4} Sentencing and Punishment 350H ~4SO.                 Deductions from Evidence. Most Cited Cases
                                                           The Court of Appeals reviews sufficiency of the
 350H Sentencing and Punishment                            evidence challenges in the light most favorable to
   350HII Sentencing Proceedings in General                the verdict, giving the government the benefit of all
      350HII(J) Stay of Execution of Sentence              reasonable inferences.
         350Hk480 k. Effect. Most Cited Cases
                                                           [6] Conspiracy 91 ~47{12)
 Sentencing and Punishment 350H ~1931
                                                            91 Conspiracy
  350H Sentencing and Punishment                               91II Criminal Responsibility
     350HIX Probation and Related Dispositions                    91II(B) Prosecution
         350HIX(F) Disposition of Offender                            91k44 Evidence
          · 350Hk1931 k. Probation Without Sen-                          91k47 Weight and Sufficiency
  tence. Most Cited Cases                                                    9lk47(3) Particular Conspiracies
  Under California law, when a sentencing court                                  9lk47(12) k. Narcotics and Dan-
· grants probation after a conviction, it may suspend      gerous Drugs. Most Cited Cases
  the imposition of sentence, in which case no judg-       Evidence was sufficient to support defendant's con-
  ment of conviction is rendered, or it may ·impose        viction for conspiracy to possess with intent to dis-
  sentence and order its .execution: to be stayed, in      tribute cocaine base; witnesses testified that defend-
  which case a judgment· of conviction is rendered.        ant shipped cocaine through the mail and arranged
  West's Ann.Cal.Penal Code§ 1203.2.                       for others to deliver cocaine base on his behalf,
                                                           wiretap evidence liiiked defendant with admitted
 [5] Criminal Law 110 €=:>'1144.13(3)                      drug .distributo.J;S, and physical evidence admitted
                                          i                included scales, razors, and large amount of cash
                                          i
110 Criminal Law                          i,               seized from storage locker rented to defendant.
   11 OXXN Review                                          Comprehensive Drug Abuse Prevention and Con-
      11 OXXN(M) Presumptions                              trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
         11 Okll44 Facts or Proceedings Not
Shown by Record                                            [7] Courts 106 ~90(2)
            110kl144.13 Sufficiency of Evidence
               110kll44.13(2)    Construction   of         106 Courts
Evidence                                                      106II Establishment, Organization, and Proced-




                         © 2009 Thomson Reuters/West No Claim to Orig. US Gov. Works.
                                                                                      .··.

                                                                                                        Pag~   3 of7


  301 F.3d 919                                                                                             Page2
  301 F.3d 919
  (Cite as: 301 F.3d 919)


 sess with intent to distribute cocaine base, where .                       110k1144.13(3) k. Construction
 prior conviction was never properly entered against       in Favor of Government, State, or Prosecution.
 defendant; although defendant entered plea of nolo        Most Cited Cases
 contendere in California state court to prior offense,
 sentencing documents showed that he was sen-              Criminal Law 110 €=>1144.13(5)
 tenced to probation, but imposition of sentence was
 suspended, and his probation was not revoked, .pre-         110 Criminal Law
 cluding entry of judgment against defendant under               11 OXXN Review
 California law. Comprehensive Drug Abuse Pre-                      11 OXXN (M) Presumptions
 vention and Control Act of 1970, § 411(a)(l), 21                      110k1144 Facts or Proceedings Not
 U.S.C.A. § 851(a)(l); West's Ann.Cal.Penal Code §           Shown by Record
 1203.2.               :              .         . . .                     11 Ok1144 .13 Sufficiency of Evidence
                                                                .            110kll44.13(5) k. Inferences or
  [4} Sentencilig and Punishment 350H €=>4SO.             ·· Deductions from Evidence. Most Cited Cases
                                                             The Court of Appeals reviews sufficiency of the
 350H Sentencing and Punishment                              evidence challenges in the light most favorable to
   350Hll Sentencing Proceedings in General                  the verdict, giving the government the benefit of all
      350HII(J) Stay of Execution of Sentence                reasonable inferences.
         350Hk480 k. Effect. Most Cited Cases
                                                           [6] Conspiracy 91 €=>47(12)
 Sentencing and Punishment 350H €=>1931
                                                           91 Conspiracy
  350H Sentencing and Punishment                              91II Criminal Responsibility
     350HIX Probation and Related Dispositions                   91II(B) Prosecution
         350HIX(F) Disposition of Offender                          91k44 Evidence
            350Hk1931 k. Probation Without Sen-                        91k47 Weight and Sufficiency
  tence. Most Cited Cases                                                 9lk47(3) Particular Conspiracies
  Under California law, when a sentencing court                               91k47(12) k Narcotics and Dan-
· grants probation after a conviction., it may suspend    gerous Drugs. Most Cited Cases
  the imposition of sentence, in which case no judg-      Evidence was sufficient to support defendant's con-
  ment of conviction is rendered, or it may ·impose       viction for conspiracy to possess with intent to dis-
  sentence and order its execution: to be stayed, in      tribute cocaine base; witnesses testified that defend-
  which case a judgment· of conviction is rendered.       ant· shipped cocaine through the mail and arranged
  West's Ann.Cal.Penal Code § 1203.2.                     for others to deliver cocaine base on his behalf,
                                                          wiretap evidence linked defendant with admitted
 [5] Criminal Law 110 €;::;;::>1144.13(3)                 drug .distributors, and physical evidence admitted
                                            f
                                            I             included scales, razors, and large amount of cash
110 Criminal Law                         \                seized from storage locker rented to defendant.
   11 OXXN Review                                         Comprehensive Drug Abuse Prevention and Con-
      llOXXN(M) Presumptions                              trol Act of 1970, § 40l{b), 21 U.S.C.A. § 841(b).
         110kl144 Facts or Proceedings Not
Shown by Record                                            [7] Courts 106 €=>90(2)
           11 Okl144 .13 Sufficiency of Evidence
              110kl144.13(2)      Construction of         106 Courts
Evidence                                                     106II Establishment, Organization., and Proced-




                        © 2009 Thomson Reuters/West No Claim to Orig. US Gov. Works.
                                                                                                                                 Page 4 of7


           301 F.3d 919                                                                                                            Page3
           301 F.3d 919
           (Cite as: 301 F.3d 919)


           ure                                                                    Cir.2000). We first consider the .procedural and no-
                 106II(G) Rules of Decision                                       tice challenges to the § 85l(a) information. A pre-
                    106k88 Previous Decisions as Controlling                      requisite for sentence enhancement under 21 U.S.C.
          or as Precedents                                                        § 841 (b) is a timely filed information detailing the
                        106k90 Decisions of Same Court or                         prior convictions the government intends to rely
          Co-Ordinate Court                                                       upon for sentence enhancement. See21 U.S.C. §
                           106k90(2) k. Number of Judges                          85l(a)(l). To satisfy the procedural and notice re-
          Concurring in Opinion, and Opinion by Divided                           quirements of the § 851(a) information, "the gov-
          Court. Most Cited Cases                                                 ernment must file its information before jury selec-
          Only the Court of Appeals en bane can overrule an                       tion begins, thus allowing the defendant 'ample
          earlier panel decision.                                                 time [...] to go to trial, and to plan his trial strategy
          *920 Michael T. Levy, argued, Omaha, NE, for ap-                        with full knowledge of the consequences of a po-
          pellant.                                                                tential guilty verdict.' " *921United States v.
                                                                                  Robinson, 110 F.3d 1320, 1327-28 (8th Cir.1997)
          Maria R Moran, argued, Omaha, NE, for appellee.                         (quoting United States v. Johnson, 944 F.2d 396,
                                                                                  407 (8th Cir.l991)). The government filed the §
                                                                                  85l(a) information on Friday, July 13, 2001.
          Before McMILLIAN, FAGG, and MELLOY, Cir-                                Stallings's trial commenced on Tuesday, July 17,
          cuit Judges.                                                            2001. Stallings's procedural contentions are without
                                                                                  merit. Stallings received timely notice of the gov-
                                                                                  ernment's intent to seek the § 851(a) enhancement
          MELLOY, Circuit Judge.                                                  before trial and had an opportunity to challenge the
                                                                                  convictions before the sentence was imposed. 21
          Pablo Stallings was convicted of conspiracy to pos-                     U.S.C. § 85l(b), (c); see also Robinson, 110 F.3d at
          sess with intent to distribute cocaine base. The gov-                   1328 (filing of information minutes before voir dire
          ernment filed an information seeking to enhance                         satisfiedrequirements of§ 851(a)(l)).
          Stallings's sentence to life imprisonment The dis-
          trict court, relying upon the convictions set out in                    [3] Stallings contends the government failed to
          the notice, imposed the enhancement and sentenced                       prove the two prior convictions beyond a reason-
          Stallings to life imprisonment. Stallings now ap-                       able doubt. The two predicate convictions offered
          peals his conviction and sentence. We affirm the                        by the government for enhancement purposes were
          conviction but reverse and remand the sentence im-                      a 1993 California conviction and a 1987 Nevada
          posed.                                                                  conviction. At sentencing, defense counsel entered
                                                                                  a valid objection to the prior convictions on the
                                                                                  basis of "identity, relevance, and foundation." .
                                                I.                                Therefore, under 21 U.S.C. § 85l(c)(l), the govern-
                                                                              (   ment had the burden to prove the two prior felony
          [1][2] Stallings challenges his enhance\f sentence                      drug convictions beyond a reasonable doubt.
          contending the procedure and notice were defective                      Stallings does not challenge on appeal .the use of
          and the .two .prior felo~y convictions. were not                        the 1987 Nevada conviction. However, he raises a
          proved beyond a reasonable doubt. "Because resol-                       variety of challenges to the use of the 1993 Califor-
          ution of this claim requires us to intetpret the stat-                  nia conviction. Based upon the record, .we conclude
          ute, we review de novo the district court's use of the                  judgment was never properly entered against.
          two prior convictions for enhancement purposes."
          United States v. Johnston, 220 F.3d 857, 860 (8th



      /




                                           © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.




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                                                                                                                                                     Page 5 of7


   301 F.3d 919                                                                                                                                       Page4
   301 F.3d 919
   (Cite as: 301 F.3d 919)


   Stallings in connection with the California convic-                                       prosecuted in the United States District
   tion, and, consequently, reliance on that convictiOn                                      Court for the District of Oregon.
   for purposes of 21 U.S.C. § 84l(b)(l)(A)(viii) sen-
   tence enhancement was improper.FNl                                         The fmal disposition of the California conviction
                                                                              resulted in Stallings receiving probation with the
          FNl. Stallings made a valid objection at                            imposition of sentence suspended. Although proba-
          sentencing to his California conviction.                            tion revocation proceedings were commenced by
          The grounds relied upon in this opinion to                          the probation office, the California court neither re~
          invalidate the sentence were raised through                         voked probation nor did it pronounce judgment.
          questioning by Judge McMillian at oral ar-                          SeeCal.Peilal Code § 1203.2(b); see also
          gument. The parties were then given the                             *922People v. Smith, 12 Cal.App.3d 621, 90
          opportunity to file supplemental briefs on                          Cal.Rptr. 811, 814 (1970) ("It is equally clear that
          the issue of whether there was ever a judg-                         probation was revoked .. . and a bench warrant was
          ment entered by the California courts. The                          issued so that judgment and sentence could be im-
          court is now in receipt of the supplemental                         posed, imposition Thereof having been suspended
          hriefmg on that issue.                                              approximately three years earlier.... "). If imposition
                                                                              of sentence was suspended, and probation was nev-
     At the sentencing hearing, the government intro-                         er revoked, then there is no judgment entered
     duced a number of exhibits in an attempt to prove                        against the defendant. As explained in an early
     up the California conviction. These exhibits show                        California Supreme Court case:
     that the defendant was charged with felony posses-
     sion for sale of cocaine base in violation of section                    When judgment is not pronounced and further pro-
     11351.5 of the Health and Safety Code of Califor-                         ceedings are suspended, there is no judgment
     nia. The defendant entered ~iea of nolo CQ!l-                             against [the defendant]. His activities are limited
     tendere. He was sentenced to three years probatio~,                       only by the terms of the probationary order, un-
     subject to the serving of 78 days in the county jail,                     der the supervision of the probation officer. Upon
     a.rui.urdered to pay restitution and court costs. The                     revocation of probation the defendant is entitled
   . sentencing documents also show that "imposition of                        to a hearing and to be sentenced, before he can be
     sentence was suspended." Subsequently, a revoc!t-                         committed to the appropriate institution.
     tion of probation proceeding was commenced in the
     Superior Court of California, County of Alameda.                         Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182,
     However, the record made at the sentencing hearllig.                     187 (1959) (citation omitted); see also People v.
s;. indicates no further action was taken on the Califor-                     Pennington, 213 Cal.App.3d 173, 261 Cal.Rptr.
   . nia probation officer's revocation recommendation..                     476, 478 (1989) ("Where no sentence is imposed at
    The remaining reference to the California convic-                        the time probation is granted, a subsequent decision
    tion is in an Oregon Presentence Report, introduced                      terminating probation requires that judgment be
    into evidence at the sentencing hearing, which                           pronounced."(citing Cal.Penal Code § 1203.2, subd.
    states that California "revocation proceedings are                       (c))); United States v. Qualls, 108 F.3d 1019, 1023
    unlikely given Stallings's conviction · in . Federal                     (9th Cir.1997) ("There is no 'judgment pending
    Court." FN2                                                              against a probationer when the court withholds im-
                                                                             position of judgment and suspends further proceed-
         FN2. The referenced federal court convic-                           ings. Because the California court granted [the de-
         tion is a 1995 conviction for Interstate                            fendant] probation and suspended further proceed-
         Travel in Aid of a Crime of Racketeering                            ings, [the defendant] does not have a fmal or




                          © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.




                                                       n   -·---·c-, .. 1 ~J...   n ____ _.li_TT'"r.,._ KT D 0 ... +--   ~'"'- Jlr~-h,......-1\.TA
                                                                                                                        Page 6 of7
                                                                ~~~EN D1)(                                               /

                                                                E~t-\1~II
     301 F.3d 919                                                                                                            Page5
     301 F.3d 919
     (Cite as: 301 F.3d 919)


     pending judgment against him in Califor-                                [5] [6] S.tallings also contends the evidence was in-
     nia."(intemal citations omitted)), a.ff'd en bane, 140                  sufficient to support his conviction. We review suf-
     F.3d 824,vacated and remanded, 525 U.S. 957, 119                        ficiency of the evidence challenges in the light most
     S.Ct. 398, 142 L.Ed.2d 323,rev'd on other grounds,                      favorable to the verdict, giving the government*923
     172 F.3d 1136.                                                          the benefit of all reasonable inferences. United
                                                                             States v. Calderin-Rodriguez, 244 F.3d 977, 983
     [4] In United States v. Robinson. 967 F.2d 287 (9th                     (8th Cir.2001). Under this standard, we fmd
     <;_ir:J92~ ,_ the__ ~_ipth_ <;i!:_~.!!.i:!....f2!!~luqed
                                                  that under                 Stallings's contentions without merit.. Witnesses
     Califumia law a~ation on:ler._j.s.____n.Qt__J                           testified that Stallings shipped cocaine through the·
     ':jlldgment" when the imgosition of sentence is sus~                    mail and arranged for others to deliver crack on his
     pended. See id. at 293, The Ninth Circuit noted that                    behalf. The government also introduced wiretap
     California law provides: "[W]hen a sentencing                           evidence linking Stallings with admitted drug dis-
     court grants probation after a conviction, it may                       tributors and physical evidence including two
     suspend the imposition of sentence, in which case                       scales, an Exacto knife, a razor, and a large amount
     no judgment of conviction is reild<:red, or it may                      of cash seized from a storage locker rented to
     impose sentence and order its execution to be                           Stallings. Stallings contends that the drug dealers
     stayed. In _t:Jle latter case only, a judgment of con-                  testifying against him were motivated to reduce
     viction is rendered." Id. (citing People v. Arguello,                   their sentences through cooperation with the gov-
     59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6                          ernment. Issues of witness credibility and bias,
     (1963)); see also United States v. Haggerty, 85 F.3d                    however, were resolved by the jury and we do not
    403, 406 (8th Cir.1996) (citing Robinson for the                         reconsider these issues·on appeal.Jd. at 988.
    proposition that a probation order is not a judg-
    ment). In Stallings's case, there was no judgment of
    conviction entered and the appropriate time for re-                                              ill.
    voking his probation arid entering judgment has
    lapsed. See Cal.Penal Code § 1203.3(a) ("The court                       [7] Finally, Stallings contends that the sentencing
    shall have authority at any time during the term of                      disparity between crack cocaine and powder co-
    probation to revoke, modify, or change its order of                      caine crimes violates the Due Process Clause. This
    suspension of imposition or execution of sen-                            argument has been repeatedly considered and rejec-
    tence .... "); see also In re Perez, 65 Cal.2d 224, 53                   ted by this court. See United States v. Johnson, 108
    Cal.Rptr. 414,418 P.2d 6, 11 (1966) ("If probation                       F.3d 919, 922 (8th Cir.1997) (citing United States
    was timely revoked, judgment could be imposed at                         v. Carter, 91 F.3d 1196 (8th Cir.1996); U1~ited
    any time thereafter."); $mith, 90 Cal.Rptr. at 814                       States v. Smith, 82 F.3d 241, 244 (8th Cir.1996),
    (':It is also settled that an order revokin.JLE!obation,                 cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136
    to_b_e_yalid,_ml~stl>.§_m_ade within thueriod fixed in                   L.Ed.2d 99 (1996)). Only the court en bane can
    tbe order of _Q!'obation. If not revoked within that                     overrule an earlier panel decision. United States v.
    period, the probation termiilates automatically on_                      Riza, 267 F.3d 757, 760 (8th Cir.2001).
    the last-.d!!~:'). Accordingly, no valid judgment has
    been entered against Stallings and, therefore, the                       Accordingly, we affirm the conviction, and remand ·
    enhanced sentence imposed in reliance upon the                           for re-sentencing.
    California conviction was improper.
                                                                             C.A.8 (Neb.),2002.
                                                                             U.S. v. Stallings
                                      II.                                    301 F.3d 919




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