Rehearing and Rehearing En Banc Denied March 28, 1978.
WINTER, Circuit Judge:
In a pro se petition for a writ of habeas corpus, Franklin Strader, presently confined in North Carolina under a sentence of a North Carolina court, sought to effect his release on the ground that certain uncounseled Virginia convictions were permitted to enhance his North Carolina sentence. He also sought to have them removed from the consideration of the North Carolina Parole Board in its determination of his eligibility for parole.
Strader appeals, and we reverse. We hold that the certificate of the state trial judge fails to establish that the North Carolina sentence was not imposed in contravention of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We hold also that, to the extent there has not been exhaustion, Strader may pursue his claims about the validity of the North Carolina sentence and against the parole board in the district court without further resort to Virginia or North Carolina state courts. We remand for further proceedings.
Between 1959 and 1964, Strader was convicted of numerous misdemeanor offenses in Virginia. He received jail sentences in only four instances. He was later convicted of second degree murder in North Carolina. In pronouncing sentence, the North Carolina trial judge mentioned Strader's Virginia criminal record. The North Carolina sentence, imposed March 25, 1969, was for a term of twenty-five to thirty years. Having served more than a fourth of his minimum sentence, Strader is eligible to be considered for parole. 3C N.C.G.S. § 148-58 (1975).
On December 23, 1974, Strader filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia. He challenged as unconstitutional nineteen uncounseled misdemeanor convictions secured against him by the State of Virginia, including the four which had resulted in jail sentences, and he moved that the convictions be vacated and an order be entered expunging them from his records. In response to the petition, the Attorney General for the State of Virginia filed a motion to dismiss, stating unequivocally, "petitioner has exhausted his available state remedies."
The district court dismissed the petition, ruling that Strader's North Carolina imprisonment had no relationship, direct or collateral, to his Virginia misdemeanor convictions, and Strader appealed. We granted a certificate of probable cause to appeal, and perceiving that the Virginia convictions, if invalid, might have an adverse effect on the likelihood that Strader would be granted parole, we remanded the case to the district court (a) directing it to transfer the case to the United States District Court for the Middle District of North Carolina, and (b) directing the latter to defer considering the case on its merits pending exhaustion of
The Virginia district court then transferred the case to the North Carolina district court. After the transfer, Strader filed a pro se pleading, alleging that he had exhausted all North Carolina remedies. He attached his pleadings in various North Carolina courts. From them, it appears that he sought to have his North Carolina sentence set aside and that he be resentenced or given other relief solely on the ground that the sentencing judge had relied on material misstatements of his prior criminal record. He did not introduce a claim that the allegedly uncounseled Virginia convictions played any part in his North Carolina sentence until his petition to the North Carolina Court of Appeals for a writ of certiorari to review the trial court's denial or relief. While North Carolina admits that Strader sought to introduce the issue at the appellate level, it argues that there has not been exhaustion in North Carolina of the claim that uncounseled Virginia convictions affected Strader's North Carolina sentence. It is perfectly clear, however, that Strader made no attempt to litigate in the North Carolina courts his claim that the parole board should be ordered not to consider his Virginia convictions in deciding his application for parole.
Before the North Carolina district court decided the instant case, the trial judge who sentenced Strader upon his conviction for second degree murder filed a certificate pursuant to 28 U.S.C. § 2245. This certificate stated that before imposing sentence, he received and was familiar with the contents of the F.B.I. report reciting Strader's allegedly uncounseled Virginia convictions but that "regardless of the F.B.I. Report, a lesser sentence would not have been imposed and to send [Strader] back for resentencing would result in the same sentence . . . and . . . would serve no useful purpose. . . ." There was an additional certification that the judge "feels there would not have been a lesser sentence [had the judge] been unaware of the prior convictions or had assumed their invalidity."
The ultimate question raised by Strader's two claims for relief is the effect of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), if Strader is successful in proving that he was convicted and sentenced in Virginia at a time when he was indigent and he was neither afforded counsel nor waived his right to counsel. Tucker holds that prior convictions obtained in violation of an accused's Sixth Amendment right to counsel may not be used to enhance punishment in a subsequent prosecution. The Sixth Amendment right to counsel extends to prosecutions for misdemeanors punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and we have held that Argersinger extends retroactively to misdemeanor convictions that resulted in confinement. See Marston v. Oliver, 485 F.2d 705, 707 (4 Cir. 1973). It would follow that, if Strader's four Virginia convictions for which he was confined were invalid and were considered and affected the imposition of his North Carolina sentence, Strader is entitled to be resentenced or released. We think that it follows also that if the four Virginia convictions were invalid, the North Carolina Parole Board should not consider them in determining whether to grant Strader parole. See Williams v. Peyton, 372 F.2d 216, 220 (4 Cir. 1967).
We treat first North Carolina's contention that the certificate of the North Carolina sentencing judge establishes that there was no violation of Tucker.
In Brown v. United States, 483 F.2d 116 (4 Cir. 1973), we established the procedure to be followed in a case where there is a claimed Tucker violation, and we reaffirmed and refined the test in Stepheney v. United States, 516 F.2d 7 (4 Cir. 1975). In these cases, we held that if the sentencing judge can say with certainty that the prior allegedly invalid convictions did not influence the sentence that he imposed, the case is at an end; otherwise, there must be resentencing or further proceedings to determine the validity of the prior convictions. As expressed in Stepheney:
Of course Brown and Stepheney both involved federal prisoners who, by motion under 28 U.S.C. § 2255, were attacking their sentences in a federal forum. We think their holdings are applicable here to a state prisoner who attacks the validity of a state sentence in a federal forum. As we have noted earlier, 28 U.S.C. § 2245 authorizes a district court to receive and rely on a certificate of the state judge who presided at a prisoner's trial as to what occurred at the trial.
We conclude, however, that the certificate in the instant case is insufficient, under Stepheney, to establish that there could have been no Tucker violation. The essence of Stepheney's requirement is "that the sentence actually imposed was uninfluenced by the prior convictions . . ." 516 F.2d at 9. Like the judge's statement in Stepheney, the certificate here is equivocal. While it says that, irrespective of the prior convictions, "a lesser sentence would not have been imposed," the sentencing judge only "feels" that there would not have been a lesser sentence if he had been unaware of the prior convictions. In order to comply with Stepheney, the judge must be able to say without qualification that the sentence was uninfluenced by the allegedly invalid prior convictions.
Now that we have restated the requirements of Stepheney, it may well be that the North Carolina sentencing judge can furnish a certificate which will meet its requirement. The district court, in further proceedings, should afford him that opportunity. But, against the possibility that he may be unable to do so, we consider next
In Brown, in an extensive dictum, we indicated that, in a case arising from Tucker, if the district judge reached the issue of the validity of prior state convictions, that issue should be litigated in a court of the state of conviction, at least if there was a state remedy still available. Stated otherwise, state remedies must be exhausted before a federal forum will pass upon the validity of a prior conviction in connection with a claimed Tucker violation. This aspect of Brown has been rejected by a majority of the other circuits which have considered it.
The validity of Strader's North Carolina sentence depends upon the validity of his four Virginia sentences which resulted in incarceration. While North Carolina has an interest in sustaining the validity of the North Carolina sentence, it can hardly be said that it is appropriate that it pass upon the validity of Virginia sentences. As to Virginia, considerations of comity would seem to indicate that North Carolina should no more pass upon the validity of proceedings of a sister state if there is another remedy available than should a federal court pass upon the validity of state proceedings before exhaustion of state remedies. We therefore see no requirement of exhaustion of any North Carolina remedies.
Brown would require exhaustion of Virginia remedies, but the Attorney General of Virginia, in the proceedings in the Western District of Virginia, has conceded that Virginia remedies have been exhausted. Of course, the Attorney General of North Carolina argues that Virginia remedies have not been exhausted. His theory is that when the Virginia trial court dismissed his motion to vacate his convictions, saying "[t]he effect of petitioner's conviction upon his release by other confining authorities is a matter to be taken up at the
Strader's claim for relief against the parole board was asserted in a pro se pleading for a writ of habeas corpus.
As Preiser and our decision in McCray v. Burrell, 516 F.2d 357 (4 Cir.), cert. granted, 423 U.S. 923, 96 S.Ct. 264, 46 L.Ed.2d 249 (1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976), hold, exhaustion of state remedies is not required in actions under § 1983.
We deem it appropriate to remind the district court of the type and burden of proof in a claim of denial of a Sixth Amendment right. Since the challenge is based upon Argersinger, the court must make three related inquiries: Was Strader indigent at the time of the prosecutions; if so, was Strader provided counsel; and, if not, was counsel not provided because of a waiver of that right? Strader has the burden
Accordingly, we reverse the judgment of the district court and remand it for further proceedings in accordance with the views expressed herein.
REVERSED AND REMANDED.
WIDENER, Circuit Judge, dissenting:
I do not agree with the majority holding "that the certificate of the state trial judge fails to establish that the North Carolina sentence was not imposed in contravention of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)." At 1265. In addition, I do not agree that the North Carolina District Court on remand should pass upon the validity of the Virginia convictions; rather, I think a district court in Virginia to be a more appropriate forum. Therefore, I respectfully dissent.
I think the majority is incorrect as it states that Brown and Stepheney require the sentencing judge to "say with certainty that the prior allegedly invalid convictions did not influence the sentence that he imposed," at 1267. A careful reading of those opinions does not disclose that requirement in either case, and I note the majority cites no reference in either case discussing or requiring a standard of "certainty" because there is none. Instead, this court, in Stepheney, 516 F.2d at 9, required the sentencing judge to:
Because our decisions following Brown have resulted in semantical investigation into the language employed by the sentencing judge, the certificate must be considered in its entirety:
"FRANKLIN D. STRADER, Petitioner CERTIFICATE -vs- OF THE TRIAL JUDGE ANDREW P. MILLER and THE COMMONWEALTH OF VIRGINIA, Respondents
"The undersigned having reviewed the contentions of the Petitioner in this action regarding previous convictions of Petitioner as set forth on the F.B.I. Report and the effect of said Report on the sentence entered in Petitioner's case by the undersigned does hereby certify and acknowledge that the contents of said F.B.I. Report were made known to the undersigned at or before the time of the sentencing of Petitioner as well as various other information both from the District Attorney and from the Petitioner's Attorney and the undersigned feels that regardless of the F.B.I. Report, a lesser sentence would not have been imposed and to send the Petitioner back for resentencing would result in the same sentence heretofore imposed being reimposed and sending him back for resentencing would serve no useful purpose either for the Petitioner or for the State.
"The undersigned feels there would not have been a lesser sentence imposed had the undersigned been unaware of the prior convictions or had assumed their invalidity.
"This the 7th day of September, 1976.
Webster's Third New International Dictionary at 769. The American Heritage Dictionary at 443 lists very nearly the same definition: "capable of two interpretations; cryptic; evasive; ambiguous." There is nothing "doubtful," "ambiguous," "cryptic," or "evasive" I can find in the certificate. Only one interpretation of the certificate seems possible, and that is Strader's earlier convictions made no difference to the State trial judge; were Strader again to come before the judge the same sentence would result.
In the majority's view, however, what seems to be the plain meaning of the certificate has been overturned by the sentencing judge's choice of the word "feel" to express his degree of certitude. "Feel" denotes "believe, think, hold," Webster's Third New International Dictionary at 834; and in legal parlance very nearly the same thing: see cases collected at "Feel, Felt," 16 Words and Phrases, p. 544. Unfortunately, to "believe, think, hold" does not provide the majority with the "certainty" that is required by the present opinion, or even the "assurance" required by Stepheney, for it invalidates the certificate on that ground.
In deciding that "feel," and thus "believe" and "think" lack the requisite certitude, the majority has established a more stringent standard for other judges than we demand of federal judges as shown by our own opinions. For "feel" see: MacKethan v. Burrus, Cootes & Burrus, 545 F.2d 1388, 1390 (4th Cir. 1976) ("We feel"); ITO Corp. v. Benefits Review Board, 529 F.2d 1080, 1088 (4th Cir. 1975) ("we do not feel"); Collins v. Mathews, 547 F.2d 795, 799 (4th Cir. 1976) (dissenting opinion) ("I feel"). For "think" see: United States v. Figurski, 545 F.2d 389, 391-92 (4th Cir. 1976) ("We think," "we do not think"); EEOC v. United Virginia Bank, 555 F.2d 403, 406 (4th Cir. 1977) ("We do not think"); Roman v. ESB, Inc., 550 F.2d 1343, 1359-62 (4th Cir. 1976) (dissenting opinion) ("I think"). For "believe" see: Burch v. Goodyear Tire & Rubber Co., 554 F.2d 633, 635 (4th Cir. 1977) ("We also believe"); Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970) ("I do not believe"); Fuller v. Laurens County School Dist. No. 56, 563 F.2d 137 at 141-142 (4th Cir. 1977) (dissenting opinion) ("I believe").
Like ourselves, the justices of the Supreme Court often deliver their opinions in terms of "feel," "think," or "believe." See, e. g., Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977) (Rehnquist, J., dissenting) ("If the Court feels"); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 617, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) (Marshall, J., dissenting) ("I therefore feel"); Brewer v. Williams, 430 U.S. 387, 409, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (Marshall, J., concurring) ("I think"); Weatherford v. Bursey, 429 U.S. 545, 556, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("we believe").
No one doubts that federal judges deliver their opinions "with assurance," Stepheney, supra, though the opinions speak in terms of "feel," "think," or "believe," for certainly we do not decide the liberty of citizens or their rights in property with less than assurance of the correctness of the opinion. We should not exact from other judges a standard we need not and do not set for ourselves.
Fairly read, the sentencing judge's certificate provides us with ample "assurance," "certainty," or whatever word may be chosen as the standard in the context of these cases. Fortunately, the sentencing judge here is permitted to furnish a new certificate. Perhaps he now will tell us "with
Even accepting for argument what I consider to be an unduly strict construction of Brown, I cannot disagree with its direction to the district court on remand to "proceed to a determination of the validity of Strader's four Virginia convictions which resulted in incarceration," at 1269. But I disagree with the apparently unlimited sweep of the majority's holding if applied to facts other than present here. The North Carolina federal court may indeed pass upon the validity of Strader's Virginia convictions, but only as those convictions "form a basis for the conditions of his confinement in North Carolina." Norris v. Georgia, 522 F.2d 1006, 1012 (4th Cir. 1975). The district court may not consider or adjudge the intrinsic validity of the Virginia convictions. Id. A contrary construction of the opinion would adopt the dissenting position in Norris which another panel may not do.
I think it a proper, if not required, practice that an attack upon a State conviction be transferred to a federal court within the convicting State. In Grant v. Connecticut, No. 77-1698 (order filed October 19, 1977), for example, this court directed a district court in North Carolina to transfer the petitioner's attack on his Connecticut conviction to the United States District Court for the District of Connecticut.
In Strader's case, however, this court already has ordered a transfer from the Western District of Virginia, where Strader originally filed his action, to the Middle District of North Carolina so Strader could exhaust his North Carolina State remedies. In light of this history, it might appear unseemly for the North Carolina district court to order the cause transferred back to the Western District of Virginia. Nevertheless, transfer has so many obvious advantages, the district court should order it. Not only would transfer enable the prisoner to get a final adjudication of his convictions, for a district court in Virginia could determine their validity for all purposes, not merely for their limited effect on Strader's North Carolina incarceration; in addition, that court could consider Strader's claims without the restriction of limited process and subpoena powers which necessarily confront a North Carolina district court in the consideration of a Virginia conviction. See Norris v. Georgia, 522 F.2d 1006, 1008-10 (4th Cir. 1975). After those proceedings were complete, Strader might then proceed with his case against the North Carolina Parole Board.
Strader's allegations appear to have been proved correct. The record contains a letter to him, dated December 6, 1976, in which a caseworker for the North Carolina Parole Commission advised him:
Mitchell v. United States, 482 F.2d at 293-94, best expressed the non-exhaustion view:
See Comment, Due Process at Sentencing: Implementing the Rule of United States v. Tucker, 125 U.Pa.L.Rev. 1111, 1115-24 (1977).