
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1045                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                 BRIAN A. PETTIFORD,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            James C.  Rehnquist, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellant.        _______________            George F. Gormley  with whom John D. Colucci and Gormley & Colucci            _________________            _______________     _________________        were on brief for appellee.                                 ____________________                                  November 25, 1996                                 ____________________                      ALDRICH,  Senior  Circuit  Judge.   In  March  1991                                ______________________            appellee  Brian  A.  Pettiford  (hereinafter  defendant)  was            convicted  of being  a  felon-in-possession of  a firearm  in            violation of  18 U.S.C.    922(g)(1).   Because  he had  nine            prior state  convictions for violent felonies,  he received a            minimum mandatory  sentence of fifteen years  pursuant to the            Armed Career  Criminal Act  ("ACCA"), 18  U.S.C.   924(e)(1).            In 1994, all but one of the prior convictions were vacated by            the  Massachusetts state  courts,  and in  1995 the  district            court granted  federal habeas  corpus relief under  28 U.S.C.              2255 in the  form of  a sentence reduction,  on the  ground            that  the ACCA was now  inapplicable to the  computation.  On            the government's appeal, we affirm.                                    I. Background                                       __________                      Approximately   two   years   after   his   federal            sentencing,  defendant  requested audiotapes  of  his earlier            guilty pleas  and sentencings  in Boston Municipal  Court and            Dorchester District Court.   He was unsuccessful in obtaining            useful tapes, post, and subsequently attempted to reconstruct                          ____            the proceedings  through the use of  affidavits.  Ultimately,            the courts vacated eight of the nine convictions.  The Boston            Municipal Court judge, finding no record that the trial judge            had engaged in any colloquy with the defendant at the time of            his  guilty plea, vacated the convictions  on the ground that            the Commonwealth had  failed to carry its burden of producing                                         -2-            a  "contemporaneous record  affirmatively [showing]  that the            defendant  waived his rights  voluntarily and  knowingly," as            required  under the  federal  Constitution and  Massachusetts            law.  The Dorchester District Court apparently did the  same.            On  the  habeas petition,  our  district  court, taking  what            would, initially, seem to us the equitable view,  granted the            relief and resentenced defendant to the term served, four and            one half years.                      The government  appeals, and with  indignation: the            state action had been  a "windfall;" the government  had been            "sandbagged."   In  view  of  the  fact  that  the  mandatory            enhancement  was based  entirely upon  the state's  action in            convicting,1  and  not simply  a  case  where enhancement  is            permitted for  charges with no findings,  see, e.g., U.S.S.G.                                                      ___  ____              4A1.3(e),  to  complain of  state windfalls  and government            sandbagging  is strong language.   The  government criticizes                                            ____________________            1.  18 U.S.C.   924(e)(1) reads:                           In the case of a person who violates                      section  922(g)  of  this  title  and has                      three previous convictions  by any  court                      referred to in  section 922(g)(1) of this                      title  for a violent  felony or a serious                      drug  offense,  or  both,   committed  on                      occasions  different  from  one  another,                      such person shall be  fined not more than                      $25,000  and  imprisoned  not  less  than                      fifteen  years, and,  notwithstanding any                      other  provision of law,  the court shall                      not  suspend the sentence  of, or grant a                      probationary  sentence  to,  such  person                      with  respect  to  the  conviction  under                      section 922(g).                                         -3-            the  state's procedure  as  if the  vacated convictions  were            federal  property, and the defendant as if he were attempting            a  trespass.   We  are induced  to  start with  the  opposite            approach.   First, however, we must consider  a Supreme Court            case, United States  v. Custis, 511 U.S. 485, 114 S. Ct. 1732                  _____________     ______            (1994), decided after the  imposition of defendant's original            sentence  and  its affirmance  on  appeal,  United States  v.                                                        _____________            Pettiford, 962 F.2d 74 (1st Cir. 1992).            _________                             II. United States v. Custis                                 _______________________                      In May 1994, the Supreme Court  in Custis held that                                                         ______            under   924(e),  unless a  defendant in a  federal sentencing            proceeding was claiming a violation  of his right to counsel,            he  had no right at that time  to make a collateral attack on            prior state  convictions.  114 S.  Ct. at 1738.   Rather, the            Court observed at the end of the opinion,                           We  recognize,  however, as  did the                      Court of  Appeals . . .  that Custis, who                      was  still "in  custody" for  purposes of                      his state convictions at  the time of his                      federal  sentencing  under   924(e),  may                      attack his state sentences in Maryland or                      through  federal  habeas  review.     See                                                            ___                      Maleng v. Cook, 490  U.S. 488 (1989).  If                      ______    ____                      Custis is successful  in attacking  these                      state  sentences, he  may then  apply for                      reopening   of   any   federal   sentence                      enhanced  by  the  state  sentences.   We                      express  no  opinion  on the  appropriate                      disposition of such an application.            Id. at 1739.  The district court, noting this dicta, held, in            ___            an  extensive opinion,  Pettiford v.  United States,  1995 WL                                    _________     _____________            464920  (D.  Mass. 1995),  that defendant's  enhanced federal                                         -4-            sentence  was  now in  violation  of the  Constitution.   The            government has a variety of objections.                                  III.  Jurisdiction                                        ____________                      The  district court concluded from the Custis dicta                                                             ______            that   2255 was the appropriate  vehicle by which to proceed.            The  government  objects  on  the ground  that  this  section            applies only  to prisoners incarcerated "in  violation of the            Constitution  or  laws  of  the  United  States."   While  we            believe,  post,   that  defendant  has  such   a  claim,  the                      ____            government's attempt to limit the availability of   2255 that            permeates its  case, is  surprising.  Section  2255 reads  as            follows:                           A prisoner in custody under sentence                      of a court established by Act of Congress                      claiming  the right  to be  released upon                      the  ground that  [1]  the  sentence  was                      imposed in violation of  the Constitution                      or laws of the United States, or that [2]                      the  court  was  without jurisdiction  to                      impose  such sentence,  or  that [3]  the                      sentence was  in  excess of  the  maximum                      authorized by  law, or [4] is   otherwise                                             __________________                      subject  to  collateral attack,  may move                      ______________________________                      the  court which imposed  the sentence to                      vacate, set aside or correct the sentence                      . . . .            (emphasis supplied.)   Item  4 stands by  itself sufficiently            without our having to resort  to the familiar principle  that            additional  language  is  presumably   separately  meaningful            rather than redundant.  Indeed, we  have previously held that            the   fourth  prong   of     2255   encompasses  other   than            constitutional or statutory error.   See, e.g., United States                                                 ___  ____  _____________                                         -5-            v. DiRusso, 548 F.2d 372, 374-75 (1st Cir. 1976) (noting that               _______              2255 is often a vehicle for correcting sentences based upon            errors made  by the sentencing  judge).  However,  whether on            constitutional  or  grounds otherwise  subject  to collateral            attack, we  concur with  the district court's  recognition of            federal habeas jurisdiction.                   IV. Timing of Determination of Criminal History                       ___________________________________________                      18   U.S.C.     921(a)(20),   the  statute   hereto            appertaining, provides in relevant part:                           What  constitutes  a  conviction  of                      such  a  crime  shall  be  determined  in                      accordance   with   the   law    of   the                      jurisdiction  in  which  the  proceedings                      were held.  Any conviction which has been                      expunged, or  set  aside or  for which  a                      person has been pardoned or has had civil                      rights restored shall not be considered a                      conviction for purposes  of this  chapter                      . . . .            The government contends that the past tense phrases "has been            expunged" and  "has been  pardoned," indicate that  only past            offenses  vacated  prior to  the  federal  proceeding may  be            discounted by  the court,  in effect etching  the defendant's            criminal history  record in stone as  of that moment.   We do            not agree.  The wording would read equally well if applied to            convictions   expunged,  etc.,  subsequent   to  the  federal            sentencing.                      Thus with the rule of lenity,  see United States v.                                                     ___ _____________            Boots, 80 F.3d 580, 588 (1st Cir. 1996), cert. denied, 117 S.            _____                                    ____________            Ct. 263, 65 U.S.L.W. 3265 (U.S. Oct. 07, 1996) (No. 96-5631),                                         -6-            the government is on the short end.  And  with the procedural            rule announced in Custis, that it is only after sentence that                              ______            a defendant  may attack  the convictions that  contributed to            it,  what sense would it make to  say that he may attack pre-            sentence convictions, but  not one whose flaw  did not appear            until  after the  federal  sentence?   Obviously this  is the            situation  every time  it  is defendant  who establishes  the            flaw.  The district court was correct.  United States v. Cox,                                                    _____________    ___            83  F.3d 336 (10th  Cir. 1996).   See  also United  States v.                                              ___  ____ ______________            Bacon, 94 F.3d 158, 162 n.3 (4th Cir. 1996); Young v. Vaughn,            _____                                        _____    ______            83 F.3d  72, 77 (3d Cir.),  cert. denied, 117 S.  Ct. 333, 65                                        ____________            U.S.L.W.  3285  (U.S. Oct.  15,  1996)  (No. 96-217);  United                                                                   ______            States v. Hofierka, 83 F.3d 357, 364 (11th Cir.), modified on            ______    ________                                ___________            other grounds on  denial of  reh'g, 92 F.3d  1108 (11th  Cir.            __________________________________            1996).  No circuit has indicated otherwise.                     V.  Basis for Vacation of State Convictions                         _______________________________________                      As we have said,  defendant's motions to vacate the            state  convictions were based on  the ground that  he had not            been  furnished by  the courts,  before accepting  his guilty            pleas,  the  information  necessary   for  his  pleas  to  be            considered  voluntary,  a  constitutional requirement.    See                                                                      ___            Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States            ______    _______                               _____________            v. Houlihan,  92 F.3d 1271,  1279 (1st Cir.  1996).   For the               ________            Boston  Municipal   Court  cases  there   were  no   records,            presumably because more than two and a half years had elapsed                                         -7-            since  the  plea  and they  had  been  destroyed pursuant  to            permissive Rule  211A(4).   In the Dorchester  District Court            there were  tapes, but they  were unintelligible.   One court            demonstrably,   and   the  other   apparently,   applied  the            Massachusetts  rule that the burden  is on the  state to show            the voluntariness of the  plea, Commonwealth v. Duquette, 386                                            ____________    ________            Mass. 834, 841 (1982), and granted the motions to vacate.                      This distresses the government, evoking the charges            of  windfalls  and  sandbagging.2    It  makes  an  elaborate            argument,  based on the fact that the state courts could have            applied  a  presumption of  correctness  and  found the  plea            hearings valid, see Parke  v. Raley, 506 U.S. 20,  31 (1992),                            ___ _____     _____            and  that the  Massachusetts courts did  not go so  far as to            hold  the convictions  unconstitutional.   Putting aside  the            fact that the Boston Municipal Court judge specifically found            a Boykin  violation, we  do not  attach consequences to  such              ______            recondite thinking.  The short answer is  that Congress chose            to predicate sentence enhancement on state action.  Surely it            is  not for the federal court to read the statutory language,            "in  accordance with the law of the jurisdiction in which the                                            ____________________            2.  See illuminating discussion  in United  States v.  Payne,                                                ______________     _____            894 F.  Supp. 534, 537  n.7 (D.  Mass. 1995).   The one  year            limitation contained  in the recent amendment  of   2255 will            diminish this  problem.  See the  Antiterrorism and Effective                                     ___            Death Penalty Act  of 1996,  Pub. L. No.  104-132, 110  Stat.            1220 (April 24, 1996).                                         -8-            proceedings were held" as permitting us  to conclude that the            Massachusetts lower court decisions were wrongly decided.                      The  government  makes  a  further  point.   Before            Custis,  it  was permissible  for  a defendant  to  raise the            ______            invalidity  of  his state  convictions  at  the time  of  his            federal sentencing.  United  States v. Paleo, 967 F.2d  7, 11                                 ______________    _____            (1st Cir. 1992).   Because the defendant  did not do so,  the            government  attempts   to  invoke  the  rule   of  cause  and            prejudice.    See  Coleman v.  Thompson,  501  U.S.  722, 750                          ___  _______     ________            (1991).   It presses this  particularly because, federalwise,            the  burden  would have  been on  the  defendant to  prove an            inadequate plea colloquy, see United States v. Wilkinson, 926                                      ___ _____________    _________            F.2d 22, 28 (1st  Cir.), cert. denied, 501 U.S.  1211 (1991),                                     ____________            overruled on  other grounds by  Bailey v. United  States, ___            ______________________________  ______    ______________            U.S. ___, 116 S. Ct. 501, 509 (1995), and having no memory on            the subject one way or the other, he would have had no proof.            Our  reaction is the opposite  of the government's.   With no            memory  there  was   no  affirmative  waiver.     Exceptional            circumstances may excuse a delayed making  of a claim, Knight                                                                   ______            v.  United  States, 37  F.2d 769,  773  (1st Cir.  1994), and                ______________            ignorance may be a factor.                      Even if  Custis is not regarded  as retroactive, it                               ______            indicates the acceptability of this post-sentence proceeding.            We are content to recognize the district court's discretion.                       Affirmed.                      _________                                         -9-
