ACCA Enhancement Vacated Because Government Failed to Prove That One of the Three Prior Violent Felonies Was Counseled
Although brief, this opinion covers a lot of ground on three very interesting issues: 1) whether an Old Chief stipulation waived Hollis's right to collaterally attack the validity of an uncounseled prior conviction; 2) whether the Government proved that the prior conviction complied with Gideon, in the face of Hollis's testimony that he was indigent at the time of the prior conviction, that he did not have counsel, that the court never offered him counsel, and that he never waived counsel; and 3) assuming that the court decided an issue against Hollis in his first appeal, whether the manifest-injustice exception to the law of the case rule allowed the court to reconsider that issue on this appeal following resentencing. On the down side, all this makes for a fairly lengthy post. So I'll just summarize the opinion here, and leave the commentary for a future post, because I think it has broader implications for sentencing generally, and not just constitutional challenges to ACCA predicates.
Hollis was charged with being a felon and a fugutive in possession of a firearm. Both charges involved the same gun on the same occassion. At trial, Hollis stipulated that he had been convicted of a felony in South Carolina in 1963. The jury found him guilty. At sentencing, the court applied an ACCA enhancement after finding that Hollis had three prior violent felony convictions, including the 1963 South Carolina conviction.
In his first appeal, Hollis argued that 1) one of his convictions must be vacated, because under United States v. Munoz-Romo, a conviction for being a felon-in-possession and a fugitive-in-possession cannot both rest on possession of the same gun on the same occasion, and 2) it was unclear which of his prior convictions served as the predicates for the ACCA enhancement. The Government conceded the first issue, and asked for a remand on the second. The court of appeals granted the Government's motion to vacate and remand for resentencing in a brief order, without addressing the Munoz-Romo argument.
At resentencing, there was no dispute that Hollis had two prior violent felony convictions. But he argued that his 1963 South Carolina conviction could not count as the third because it was obtained in violation of his Sixth Amendment right to counsel.
Hollis testified that he was not represented by counsel in that prior proceeding, was indigent, was not advised that he was entitled to appointed counsel, and did not waive his right to counsel. The government offered a document from the state prosecutor’s office (the “prosecutive summary”) that purported to reflect the name of an attorney representing Hollis and other defendants in at least one aspect of the case. The government also took the position that the stipulation regarding this prior offense foreclosed Hollis from collaterally attacking the 1963 conviction.
The district court concluded that Hollis's stipulation barred him from challenging the South Carolina conviction. It also concluded that the court of appeals had rejected Hollis's Munoz-Romo challenge in the first appeal, and imposed the same sentence on both counts as it had at the first sentencing. Hollis went back up.
The court of appeals first held that Hollis's the stipulation did not waive his right to collaterally attack the validity of the prior conviction. It concluded that the text of the stipulation, which said only that Hollis "was convicted" of the prior offense, did "not address [his] guilt or the truth of the charges." The stipulation also did not say that the conviction was constitutionally valid, and did not say that Hollis was waiving his right to collaterally attack the conviction. The court also rejected the Government's argument that a waiver could be inferred from the purpose of the stipulation; it instead observed that an Old Chief stipulation is simply an evidentiary avenue for avoiding a risk of unfair prejudice, and that Hollis's failure "to collaterally attack the prior conviction during the trial of his innocence or guilt does not foreclose a subsequent collateral attack during sentencing proceedings." Finally, the court refused to infer waiver under the Zales doctrine, which is limited to situations in which the defendant pleads "true" or "guilty" to an enhancement allegation. Zales didn't apply here because "Hollis has not pleaded 'true' or 'guilty' to the underlying offense or to the Armed Career Criminal Act enhancements. The stipulation in this case is not analogous in purpose or effect to a 'true' or 'guilty' plea: the purpose of Hollis’s stipulation is to avoid prejudice to the jury."
Having found no waiver, the court then turned to Hollis's Burgett argument:
The district court relied upon the waiver theory in ruling on Hollis’s challenge to his 1963 conviction, and the court made no factual finding as to whether Hollis had counsel for that conviction. In Mitchell [v. United States, 482 F.2d 289 (5th Cir. 1973)], we set forth the burdens and standards of proof when a defendant alleges that a prior conviction was unconstitutionally obtained because of lack of representation:[W]hen a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. Conversely, if the record of the conviction under collateral attack shows that the defendant was represented by counsel, the convicted defendant has the burden of impeaching the record.
The government argues that the prosecutive summary is evidence showing that Hollis was represented by counsel and therefore that the burden was upon Hollis to impeach that record at sentencing. But the prosecutive summary does not show what the government claims it does. It shows, at most, that Hollis and his co-defendants were represented by an attorney at their bond hearing hours after they were apprehended on May 14, 1963. Although the word “guilty” appears on the document, it has no information regarding a trial or plea proceeding. It does not reflect that Hollis was represented by counsel when convicted or that he validly waived his right to counsel.
Because the government has not established three counseled predicate felonies, the sentence must be vacated and Hollis must be re-sentenced.
Finally, the court reached the Munoz-Romo issue. (Strangely, Hollis didn't raise it in this second appeal; it was the Government who asked the court to vacate one of the convictions.) The court assumed without deciding that it rejected this argument the first time around, which meant that it could not revisit the issue unless one of the three exceptions to the law of the case doctrine applied. It held that the third exception --- that "the earlier decision is clearly erroneous and would work a manifest injustice" --- applied here:
In this case, Munoz-Romo unequivocally prohibits Hollis’s simultaneous conviction for Counts One and Two. If our opinion in the first appeal decided that issue and allowed both convictions to stand, it was “dead wrong” under our earlier decision in Munoz-Romo. Allowing an invalid conviction to stand would work manifest injustice. . . . In these unique circumstances, in which the government, in the interest of justice, urges us to vacate a defendant’s criminal conviction because it is foreclosed by this court’s prior precedent, it would be clear error and manifest injustice to allow the conviction to stand. We will grant the government’s request to vacate Count Two.
Stay tuned for commentary.