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

Donald K. Stern, United States Attorney, was on brief for appellant

_______________

George F. Gormley
_________________

with whom John D. Colucci and Gormley & Colu

_______________
______________

were on brief for appellee.

____________________

November 25, 1996

____________________

ALDRICH,

Senior Circuit Judge.

______________________

In

March

1991

appellee

Brian

convicted

A.

of being

violation of

prior state

(hereinafter

defendant)

felon-in-possession of

18 U.S.C.

922(g)(1).

a firearm

Because

he had

convictions for violent felonies,

minimum mandatory

Armed Career

Pettiford

sentence of fifteen years

Criminal Act

("ACCA"), 18

was

in

nine

he received a

pursuant to the

U.S.C.

924(e)(1).

In 1994, all but one of the prior convictions were vacated by

the

Massachusetts state

court granted

2255 in the

that

courts,

federal habeas

form of

the ACCA was now

and in

1995 the

corpus relief under

a sentence reduction,

inapplicable to the

the government's appeal, we affirm.

I. Background
__________

district

28 U.S.C.

on the

ground

computation.

On

Approximately

sentencing,

guilty pleas

defendant

two

years

after

requested audiotapes

and sentencings

Dorchester District Court.

his

of

in Boston Municipal

federal

his earlier

Court and

He was unsuccessful in obtaining

useful tapes, post, and subsequently attempted to reconstruct

____

the proceedings

through the use of

affidavits.

the courts vacated eight of the nine convictions.

Ultimately,

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

the Commonwealth had

on the ground that

failed to carry its burden of producing

-2-

"contemporaneous record

defendant

required

law.

On

affirmatively [showing]

waived his rights

under the

federal

that the

voluntarily and

knowingly," as

Constitution and

Massachusetts

The Dorchester District Court apparently did the

the

habeas petition,

our

district

court, taking

would, initially, seem to us the equitable view,

same.

what

granted the

relief and resentenced defendant to the term served, four and

one half years.

The government

state action had been

"sandbagged."

enhancement

convicting,1

In

permitted for

4A1.3(e),

sandbagging

view

of

the

fact

entirely upon

not simply

that

complain of

mandatory

the state's

action in

case

where enhancement

The

and government

government criticizes

____________________

1.

18 U.S.C.

924(e)(1) reads:

In the case of a person who violates

section

922(g)

of

this

three previous convictions

referred to in

is

see, e.g., U.S.S.G.

___ ____

state windfalls

is strong language.

had been

the

charges with no findings,

to

indignation: the

a "windfall;" the government

was based

and

appeals, and with

title
by any

and has
court

section 922(g)(1) of this

title
drug

for a violent
offense,

occasions

or

felony or a serious
both,

different

such person shall be

$25,000

and

fifteen

years, and,

other
not

from

one

on

another,

fined not more than

imprisoned

not

less

than

notwithstanding any

provision of law,

the court shall

suspend the sentence

of, or grant a

probationary
with

committed

sentence

respect

to

the

section 922(g).

-3-

to,

such

conviction

person
under

the

state's procedure

federal

as

vacated convictions

were

property, and the defendant as if he were attempting

trespass.

approach.

We

are induced

to

start with

First, however, we must consider

case, United States

_____________

and

the

opposite

a Supreme Court

v. Custis, 511 U.S. 485, 114 S. Ct. 1732

______

(1994), decided after the

sentence

if the

imposition of defendant's original

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

under

924(e),

unless a

defendant in a

proceeding was claiming a violation

in Custis held that

______

federal sentencing

of his right to counsel,

he

had no right at that time

prior state

convictions.

to make a collateral attack on

114 S.

Ct. at 1738.

Rather, the

Court observed at the end of the opinion,

We

recognize,

Court of
was

however, as

Appeals . . .

still "in

that Custis, who

custody" for

his state convictions at

federal

sentencing

did the

purposes of

the time of his

under

924(e),

may

attack his state sentences in Maryland or

through

federal

habeas

Maleng v. Cook, 490

______
____

review.

See
___

U.S. 488 (1989).

If

Custis is successful

in attacking

state

may then

apply for

federal

sentence

sentences, he

reopening
enhanced
express

of
by
no

any
the

state

opinion

sentences.

on the

these

We

appropriate

disposition of such an application.

Id. at 1739.
___

an

The district court, noting this dicta, held, in

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.

The

Jurisdiction
____________

district court concluded from the Custis dicta

______

that

The

2255 was the appropriate

government

objects

on

vehicle by which to proceed.

the ground

that

applies only

to prisoners incarcerated "in

Constitution

or

believe,

post,
____

laws

of

the

United

that

defendant

has

this

violation of the

States."

such

While

claim,

government's attempt to limit the availability of

permeates its

case, is

surprising.

Section

2255 reads

A prisoner in custody under sentence

of a court established by Act of Congress

the

the right

ground that

to be

[1]

imposed in violation of

the

released upon
sentence

was

the Constitution

or laws of the United States, or that [2]

the

court

impose

was

without jurisdiction

such sentence,

sentence was
authorized by

in

or

excess of

that [3]
the

we

the

2255 that

follows:

claiming

section

to
the

maximum

law, or [4] is
otherwise
__________________

as

subject to collateral attack,

______________________________
the

court which imposed

may move

the sentence to

vacate, set aside or correct the sentence

. . . .

(emphasis supplied.)

Item

without our having to resort

additional

language

is

rather than redundant.

the

fourth

prong

4 stands by

to the familiar principle

presumably

Indeed, we

of

itself sufficiently

2255

constitutional or statutory error.

-5-

separately

that

meaningful

have previously held that

encompasses

other

than

See, e.g., United States

___ ____ _____________

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

constitutional

attack, we

or

judge).

grounds otherwise

concur with

However,

subject

the district court's

whether on

to collateral

recognition of

federal habeas jurisdiction.

IV. Timing of Determination of Criminal History

___________________________________________

18

U.S.C.

921(a)(20),

the

statute

appertaining, provides in relevant part:

What

constitutes

conviction

of

hereto

such

crime

accordance

with

jurisdiction
were held.

shall

in

be

determined

the
which

law
the

of

in
the

proceedings

Any conviction which has been

expunged, or

set

aside or

for which

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

offenses

"has been

vacated

discounted by

not agree.

prior to

the court,

criminal history

pardoned," indicate that

the

federal

proceeding may

in effect etching

record in stone as

only past

be

the defendant's

of that moment.

We do

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

until

sentence?

after the

situation

flaw.

83

federal

every time

it

is defendant

The district court was correct.

F.3d 336 (10th

Cir. 1996).

See
___

did not appear

Obviously this

is the

who establishes

the

United States v. Cox,

_____________
___

also United States v.

____ ______________

Bacon, 94 F.3d 158, 162 n.3 (4th Cir. 1996); Young v. Vaughn,
_____
_____
______

83 F.3d

U.S.L.W.

72, 77 (3d Cir.),

3285

(U.S. Oct.

cert. denied, 117 S.

____________

15,

1996)

Ct. 333, 65

(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,

state

been

pleas,

defendant's motions to vacate the

convictions were based on

furnished by

the

considered

the courts,

information

voluntary,

the ground that

he had not

before accepting

his guilty

necessary

for

his

pleas

to

constitutional requirement.

be

See
___

Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States

______
_______
_____________

v. Houlihan,
________

Boston

92 F.3d 1271,

Municipal

Court

1279 (1st Cir.

cases

there

1996).

were

no

For the

records,

presumably because more than two and a half years had elapsed

-7-

since

the

plea

permissive Rule

there were

and they

had

211A(4).

Massachusetts

and

the

other

apparently,

is on the

to

District Court

were unintelligible.

rule that the burden

the voluntariness of the

destroyed pursuant

In the Dorchester

tapes, but they

demonstrably,

been

One court

applied

the

state to show

plea, Commonwealth v. Duquette, 386

____________
________

Mass. 834, 841 (1982), and granted the motions to vacate.

This distresses the government, evoking the charges

of

windfalls

argument,

applied

and

sandbagging.2

hold

makes

an

elaborate

based on the fact that the state courts could have

presumption of

hearings valid, see Parke

___ _____

and

It

that the

correctness

found the

v. Raley, 506 U.S. 20,

_____

Massachusetts courts did

the convictions

and

unconstitutional.

not go so

plea

31 (1992),

far as to

Putting aside

the

fact that the Boston Municipal Court judge specifically found

a Boykin
______

violation, we

recondite thinking.

do not

attach consequences to

The short answer is

such

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

894 F.

Supp. 534, 537

limitation contained
diminish this

n.7 (D.

Mass. 1995).

in the recent amendment

problem.

Death Penalty Act

in United States v.
______________

See the
___

of 1996,

-8-

of

year

2255 will

Antiterrorism and Effective

Pub. L. No.

1220 (April 24, 1996).

The one

Payne,
_____

104-132, 110

Stat.

proceedings were held" as permitting us

to conclude that the

Massachusetts lower court decisions were wrongly decided.

The

Custis,
______

it

invalidity

government

was permissible

of

his state

federal sentencing.

(1st Cir. 1992).

prejudice.

See
___

to

point.

a defendant

to

convictions

invoke

Coleman v.
_______

It presses this

burden

further

at

Because the defendant

attempts

the

for

Before

raise the

the time

of

United States v. Paleo, 967 F.2d

______________
_____

government

(1991).

makes

would have

the

did not do so,

rule

Thompson,
________

501

of

U.S.

cause

his

7, 11

the

and

722, 750

particularly because, federalwise,

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.

____________

overruled on other grounds by

______________________________

1211 (1991),

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

memory

there

was

no

of the government's.

affirmative

waiver.

circumstances may excuse a delayed making

v.

United States, 37
______________

F.2d 769,

773

With no

Exceptional

of a claim, Knight
______

(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-