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                                                                           WRIT NO. W 1C::1JfftJ(fiJ

                                      ·Ex PARTE                                                                  IN THE CRIMINAL.
                                                                                                                 DISTRICT COURT NO.         ~    OF

                                                                                                                 DALLAS COUNTY I. TEXAS


                                                                                ORDER DESIGNATING ISSUES


                                                                                                                               ..   I
                                                      Having reviewed the Applicant's Application for Wrlt of Habegs_
                                       Corpus, the Court finds ·that the-re are controverted, previously
                                       unresolved issues of fact which arematerial to the legality of the

                                      Applicant's                      confinemen~.

                                                     _The Court appoints fRED C. MCDANIEL to resolve the issues and
                                                                                          .. ··· .·
                                     prepare findings of fact and conclusions of law for the Court. The
                                      issues may be resolved by affioavits, depositions, interrogations,
                                     hearings and/or personal                         ~ecollection         .
                              ...
                             .·



                                                     The Clerk of the Court is ORDERED to send a copy of.this order
                                    ·. to the Court of Criminal Appeals, Applicant, or Applican-t'_s counsel

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



                                                                                        -1-
                                    ·-state.

                                                   SIGNED AND ENTERED this                             day of.   ;~                     I   200L •


        iE STATE.OF TEXAS
        :JUNTY OF OAL:.f.\S
            i. Jim H::.Jn;I:lf C~2trict C!erk of
                                                                                                   .. ~·~
                                                                                                . ··

        ~H2s Cou;;ty~ ·-r(S{~;sr dr- ho.:-eby certify
        :i! Utf~ frsrr;r}~~b:~--~ ~-~ c~ t1.1:: (:.r~a correct
        ~i='Y ~   th:·:..:>::-;rr;_r.! 2~:·;:2.::::::: 0n   n~cord   now
        1   fib in rh:r r±':f,::Gl.                    ·

         ms:z '"\'         d:tJ/)I/'fffz                        cf
                         .__ .__ .:..: ,: ;. -. ------~-,<----
        .;ca, t.h::J,. _ · _           ·j_ .·.
                         1
                     ;~f/bi/.
                                  '< /.   .   EXHIBIT           p   :.#llf\) ·. ';   ~0 F-9573890-NL
                                                                                 · -------.---.__
 ·NA1'1ED ATTORNEYS. AND ANNOUNCED READY FOR TRIAL. DEFENDANT APPEARED IN. PERSON IN.
  OPEN: COURT.    WHERE    DEFENDANT ·wAS·NiJT REPRESENTED ·BY  COUNSEL    DEFENDANT
  KNOWING~Y, 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 .ATTORNEY          THE .
  ATTORNEY. FOR THE STATE AND THE COURT.· . WHERE SHOWN ABOVE THAT . THE CHARGING
-.INSTRUMENT WAS BY INFORMATION INSTEAD OF l:NOICTMENTf THE. DEFENDANT DIDt WITH
  THE CONSENT AND APPROVAL OF HIS ATTORNEY WAIVE H S RIGHT TO PROSECU ION BY
   INDICTMENT 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 INSTRU1'1ENT.      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 1'1ENTALLY COMPETENT AND "SAID·,
  PLEA .IS'FREE AND VOLUNTARY THE SAID PLEA WAS ACCEPTED BY THE COURT AND IS NOW
  ENTEF<ED OF RECORD AS THE PLEA HEREIN OF.DEFENDANT. DEFENDANT IN OPEN COURT, IN
 ~§~~~~~tA~~~~~GA~~I~~gs~~~x~R~~A~Yo~Fo~H~I¥~~~~~~Gi A~5T~~~~~~·T~~~ T~tP~e~~~~~~
  MAY BE.· BY STit'ULATION CONSENTED TO THE INTRODUCT ON ·OF il::STIMONY ~ALLY, ·BY
  .JUDICIAL CONFESS I ON , BY AFF I DAV I TS.x. WRITTEN STATEI'1ENTS OF WI TNESSE.S ~-AND ANY
 .OTHER DOCUMENTARY EVIDENCE. SUCH WHIVER AN. D CONSENT HAVING BEEN A~R '·                    BY THE
·COURT·. IN WRITING AND FILED IN THE PAPERS OF THE CAUSE. THE~~              U~         V        HEARD .
  DEFEI'JDANT"'S WAIVER oF THE READING OF · THE CHARGING IK                  M ·        · • ENDANT··s
  PLEA THERETO THE EVIDENCE SUBMITTED AND,THE ARGUMENT                      CO    · L. IS OF THE
  OPINION. FROM' THE EVIDENCE SUBMITTED THAT DEFENDANTm~~·            UI ,       THE' OFFENSE t!.S _.
  SHOV.JN ABOVE AND THAT THE OFFENSE WAS COMMITTED~~: AFD D E ANT . ON THE DATE
  SET FORTH ABOVE • THE ·COURT FURTHER MAKES , ; T NQ.I S                  TO · DEADLY WEAPON •          ·
  FAMILY VIOLENCE, BIAS OR PREJUDICE, AND. • R~ I . IO·             0~ REPARATION AS SET FORTH
  ABOVE.. ·...
      ..
                             ·.
                                                  . ...
                                                                  .      '
                                                                                 · ·
                                                                               ... · ..   .    .
       -.    AND WHEN SHOWN ABOVE THAT THE CHARGING INSTRUMENT CONTAINS 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                                    '!
 PARAGRAPH(S) AS MAY BE SHOWN ABOVE.                                       .
             AND WHEN SHOWN ABOVE THAT THERE WAS A PLEA BARGAIN AGREEMENT," THE                             . i
                                                                                                              I
 DEFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD FOLLOW OR     RE~ECT  SUCH
 AGREEMENT AND IF THE COURT REJECTED 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 RESTITUTION HAS' BEEN ORDERED BUT THE
 COURT DETERMINES THAT THE INCLUSION OF·THE VICTIM"'S NAME AND ADORES~ IN THE
 ~UDGMENT   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 THE'DEFENDANT TO
 OFFSET, SAID COSTS IN T!-·!E AMOUNT ORDERED" .                 .                        .
      ( .    THEREUPON THE SAID DEFENDANT WAS ASKED BY THE COURt ~HETHER HE HAD:
 ANYTHING 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.z. THE COURT\
 PROCEEDED IN THE PRESENCE OF THE DEFENDANT AND HIS ATTORNEY Tu PRONOUNCE ~
 SENTENCE AGAINST THE DEFENDANT.            .                                       .
                                                                                             .         .\

      ·... ·.·  IT IS, THEREFORE, ORDERED. , ADJUDGED AND DECREED BY· THE COURT THAT \
 3AID ~UDGMENT ·AS SET FORTH ABOVE        · fs HEREBY IN .ALL THINGS APPROVED AND ·'..
 :ONFIRMED.z. AND THAT SAID DEFENDANT BE: AD~UDGED GUILTY OF THE OFFENSE AS SHOWN
 ~BOVE.J. ANu THAT SAID DEFENDANT  IS SENTENCED TO A TERM OF IMPRISONMENT or~·. .
 =I NE uR' BOTH AS SET FORTH .ABOVE AND SHALL BE CONFINED FOR THE · ABOVE NAMED .. •. ·. ·•
 rERM IN ACCORDANCE WITH THE PROViSIONS OF LAW GOVERNING SUCH PUNISHMENTS.        IT ... ·.
 [S FURTHER ORDERED THAT THE DEFENDANT PAY THE FINE.z. UNLESS PAYMENT OF T~E FINE
 ..,AS BEEN. PROBATED AS SHOWN ABOVE COURT COSTS CO::;TS AND EXPENSES OF LEGAL .· .. ·•
 3ERVI.CES PROVIDED 'BY THE COURT APPOINTED ATTORNEY IN. THIS CAUSE, IF ANY, AND .. ',
  ~ESTITUTION OR R.EPARATION AS SET FORTH HEREIN.                  .. . .             ~ ·

       .. .   li FIIRTHER APPE'AR I NG TO THE COURT THAT' THE BEST I NTERE!:Lt OF TI:-Ji:
  )UBLIC AND THE DEFENDANT WILL BE SERVED· BY THE SUSPENSION OF THE IMPOSITION DE.··.
  3ENTFNCE HERE I IS[; •




                                                ...   ~   ...




                 , ..
                 .
                        ,.
                        (•




                             -~   ---~--·--   -·--~--------
--~----=-   ------·--
                          _,.. -.._, . . · c_)                NO F- 9573890-NL   . . . EXHIBiT ..·.·--- :it 1l~o)
                                                                                          .                         I   -,)

         ,    IT ·IS FURTHER ORDERED, ADJUDGED AND DEC~:~D BY THE COURT THAT        THE .
IMP.OSlTJ.ON OF SENTENCE HEREIN IS HEREBY SUSPENDED FOR A PERIOD OF TIME AS SHOWN
ABOVE. THE FINE IMPOSED.z. 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.                   .~ ·


                                                                                                                                             ·i\ ·.
                                                                                     .·.                                                                ~




     ... ·. CONDITIONS OF. COMMUNITY SUPERVISION ARE ATTACHED                                                                          HE.RETO~ND     ARE
INCORPORATED FOR ALL PURPOSES AS .A PART OF THIS JUDGMENT.                                                                              .•

WAS~'  IN OPEN COURTt PLACED UPON. A CERTIFICATE OF FING!ie~~~l .J\:~
     :. • •
IS ATTACHED
             · FOLLOWING THE DISPOSITION OF. THIS CAUSE THE
                 HERE 0 AND ·IS  INCORPORATED BY
                                                                    !Qt,A   "S · I
                                                            CE· 1 \.~.I·~~ART
                                                                                      RPRINT ..
                                                                                 ERTIFICATE .
                                                                                   . OF ·THIS  :          bCWo
JUDGMENT.     .                      ·   · ·   .        .                ..    ·        /
    .· ·. ·· . A PRESENTENCE INVESTIGATION
APPLICABLE PROVISIONS OF LAW.            • .·.. ·
                                                                                                WAS~D
                                                                                                  ; ~
                                                                                                              .·    D         IN   ACCORDANCE WITH'
                                                                                                                                      · ·.
                                                                                                                                                      THE .·
                                                                                                                                                         ·




                         COURT COSTS IN THE.AMOUNT OF $124.50




                                                                                                                                                                     . '
                                                                                                                                                                     .·.f


                                                                                                                                                            .     ·,·,
                                                                                                                                                                '" !


                                                                                                .JUDGE PRESIDING




                                                                                                                                                                 :   ....


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




                           •    ......                             'J•


                                                               .•·.      -:.

                                                      -~   .-~ . '~ .     .   .
                          '.·     ..
                          --/     ,·   ~   ',;    :

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                                                             '.-         :·-·




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                                                                          ,,11.
"UI"\1'1    .l-                                                                                   )                   S"J:.ATE····.JAIL
:REV~                 9'7/01/94)                                                                  ~·...:·.';_·,..··
                                                                                                                                                  ..... -·
                                                                                                  NO.                     F-9573890-NL
                                                                                                                                              IN THE CRIMIN~L riiSTRICT                            '.
"HE STATE OF TEXAS
IS.                                                                                                                                           COURT 5
IILTON VERAN WILLIAMS                                                                                                                         DALLAS COUNTY,'.TEXAS

                                                                                         .JUDGMENT - COMMUNITY SUPERVISION
                                                                                           PLEA OF GUILTY OR-NOLO CONTENDERE
                                                                                                       .JURY .·.WAIVED

                                                                                                                                                 .JULY      TERM A.D., 1995
                                                                                                                                                                       7


 UDGE 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
                                                                                           LESS THAN       $20 7 000

                          ·DEGREE:                                      STATE .JAIL

  -iARGING
  ~STRUMENT:                                        INDICTMENT

  :RMS OF PLEA BARGAIN
  rN DETAIL>:   · · 1 YEAR STATE .JAIL PROBATED
                                           ...                                                                                         3   YEARS, FINE $300

  _EA TO. ENHANCEMENT                                                                                                               ·FINDINGS ON
  ~RAGRAPH ( S):  N/A                                                                                                             ·.ENHANCEMENT: N/A

   :NDINGS ON
   lEADL Y . WEAPON                                                                                     NO FINDING
   liAS DR PRE.JU0ICE 7
   IND/OR ·
   :AMILY VIOLENCE:
   ·TC"     .qc:-~!Tr=t..lf"'t:'
   iPOSEo·:                         -· ·- ..                                             ..07 /24/9§                                                         COSTS: ·YES                                            .·'·i

             :    ·...

   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              ~F                 SUPERVISION:                                                   3 YEARS                                  DATE TO CDMMENGE:              07/24/95 .

    I\IE PROBATED:                                                  NO                                                                     REST±TUTION/REPARATtON: NO
                                                                                                                                                                                  :,,
    \!CURRENT UNLESS OTHERWISE SPECIFIED •.•

                  ON THIS DA.Yt SET FORTH ABOVE THE·ABOVE STYLED AND NUMBERED CAUSE CAME
           TRIAL. THE STA E OF TEXAS AND DEFEN.DANT APPEARED BY AND THROUGH THE ABOVE.·.. -'
            :. ' ..                                .' . ..
                                                                     VOL. 339 PAGE .122                                            .




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                                                                                                                                                G::: --t~,         ·i_~·~:J· ~·---------------........,.
                                      ~{ t-\ 'I~ 1.1   *l\!\
   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 that we 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




                                                                                                                    Date ofPrinting: Aug 04, 2009
                                                                                                                                                       ...
                                                                                                                                                    '(::- -··~-   ..
                                                          KEYCITE

         P 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~,Appx. 973, 987 (lOth Cir.(Utah) Oct 01, 2007) (Table, text in
                       VJESTLAW, NO. 05-4086, 05-4117)" HN: 3 (F3d)
         if          2 U.S. v. Alvarado, 458 F.Supp.2d 1266, 1268+ (D.N.M. Jul20, 2006) (NO. CR 05 377 BB) HN: 3
                       (F3d)




                                                                                                                                .......


                                         © 2009 Thomson Reuters. All. rights reserved.
                                                                                                                                      "·'
                                                                                                                         Page 2 of7



  westiaw
  301 F.3d919                                                                                                             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.                                        4ll(a)(1), 21 U.S.C.A. § 85l(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 Care-;br 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 distribute 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, § 4ll(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 Circumstances 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!Jitual 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 putpose of sentencing                      350Hk1338 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 conspiracy to pos-




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




                                                          n   1•.   n   ,...,   ,..-r,..,.......   .--r ._ ...... ,...
                                                                                                       Page 3 of7


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


 sess with intenf 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 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 OXXIV Review
 California law. Comprehensive Drug Abuse Pre-                   110XXIV(M) Presumptions
 vention and Control Act of 1970, § 4ll(a)(1), 21                   110k1144 Facts or Proceedings Not
 U.S.C.A. § 851(a)(1); West's Ann.Cal.Penal Code §        Shown by Record
 1203.2.               •'                         . .                  110k1144.13 Sufficiency of Evidence
                                                             .            110kll44.13(5) k. Inferences or
  [4} Sentencing and Punishment 3SOH ~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 3SOH ~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                                                  91k47(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 liiiked defendant with admitted
 [S] Criminal Law 110 €=:>1144.13(3)                      drug .distributoiJi, and physical evidence admitted
                                                          included scales, razors, and large amount of cash
 110 Criminal Law                                         seized from storage locker rented to defendant.
    11 OXXIV Review                                       Comprehensive Drug Abuse Prevention and Con-
       110XXIV(M) Presumptions                            trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
          110kll44 Facts or Proceedings Not
 Shown by Record                                          [7] Courts 106 ~90(2)
            110kll44.13 Sufficiency ofEvidence
               110kll44.13(2) Construction of             106 Courts
 Evidence                                                    106II Establishment, Organization, and Proced-




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


                                           M PnJ~N...t.J-. 1 · ·                                          Pag~   3 of7
                                           Et\\1Jtrf ·. ;fl'o)
                                                          .          .
  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 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 OXXIV Review
 California law. Comprehensive Drug Abuse Pre-                       IIOXXIV(M) Presumptions
 vention and Control Act of 1970, § 411(a)(l), 21                       110kl144 Facts or Proceedings Not
 U.S.C.A. § 851(a)(1); West's Ann.Cal.Penal Code §            Shown by Record
 1203.2.               :              .         . . .                      110k1144.13 Sufficiency of Evidence
                                                                 .            110kl144.13(5) k. Inferences or
  [4} SentenciO.g 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) Prosecuti9n
         350HJX(F) Disposition of Offender                           91k44 Evidence
            350Hkl931 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
                                                           included scales, razors, and large amount of cash
110 Criminal Law                                           seized from storage locker rented to defendant.
   11 OXXIV Review                                         Comprehensive Drug Abuse Prevention and Con-
      110XXIV(M) Presumptions                              trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
         110k1144 Facts or Proceedings Not
Shown by Record                                            [7] Courts 106 ~90(2)
            11 Ok1144 .13 Sufficiency of Evidence
               110k1144.13(2)      Construction of         106 Courts
Evidence                                                      I 06II 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 ofDecision                                     tice challenges to the § 851(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 § 85l(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.l997)
          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 Mc:MILLIAN, 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 § 85l(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. § 851(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§ 85l(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-
                                                                           i
                                                                           I
                                                                               ment had the burden to prove the two prior felony
          [1][2] Stallings challenges his enhance~ 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 interpret 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.




1_.t...t.._.//____ ,_" _____ L1----   _____ / .... -: _,/,.   -~   4   4
                                                                                                           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.Pei:J.al Code § 1203.. 2(b ); see also
          gument. The parties were then given the             *922People v. Smith, 12 Cal.App.3d 621, 90
          opportunity to flle 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 mereof having been suspended
          briefing 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:g,-            against [the defendant]. His activities are limited
     tendere. He was sentenced to three years probatioJ!,      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
     and Qrdered 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 revoca-          committed to the appropriate institution.
     tion of probation proceeding was commenced in the
     Superior Court of California, County of Alame~.          Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182,
     However, the record made at the sentencing hearing        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.l997) ("There is · no 'judgment pending
    Court." FNz                                               again.<:t 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.
                                                                                                                Page 6 of7


     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."(interna1 citations omitted)), aff'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:,l9._2_~,_ the__ tl'inth_G_i!:~!!J!__9Q!!cluqed
                                                    that under      Stallings's contentions without merit.. Witnesses
     Califumi_a law a____probation onie.t:__i.L__!!.Q1___a          testified that Stallings shipped cocaine through the
     ·~~t" when the imposition of sentence is sus:                  mail and arranged for others to deliver crack on his
     2ended. 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 rendered, 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 Jhe latter case only, a judgment of con-            testifying against him were motivated to reduce
     viction is rendered." !d. (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.l996) (citing Robinson for the               reconsider these issues·on appeal. !d. 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, I 08
    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.l996),
    ('~It is also settled that an order revoking E£Obation,         cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136
    to_b.e..~alid,_m,l.).st_.b_iunade within th~eriod fixed in      L.Ed.2d 99 (1996)). Only the court en bane can
    the order of _Q!'obation. If not revoked-within that            overrule an earlier panel decision. United States v.
    perioc1.__!!le probation terminates automatically on            Riza, 267 F.3d 757, 760 (8th Cir.2001).
    the last dax,:'). 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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