On appeal from denial of his motion to vacate sentence, 28 U.S.C. § 2255, Lawary raises two issues. First he alleges that his sentence was improper because the court, at sentencing, failed to make an explicit finding that he would not benefit from sentencing under the Youth Corrections Act, 18 U.S.C. § 5010. Such a finding is mandated by Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). The court made such a finding ex post facto in dismissing the § 2255 motion, but Lawary argues that this is insufficient. Since Dorszynski was decided four months after Lawary was sentenced, the underlying issue is whether Dorszynski applies retroactively. On this issue four circuits have said no, three circuits have said yes, but that an ex post facto finding at the post sentence proceeding is sufficient, and one circuit has given an unqualified yes.
In April of 1973, Lawary was charged in State Court with armed robbery. He pled guilty on October 11 and was sentenced to four to twelve years in the penitentiary. Meanwhile, in August he committed another crime (it may be surmised that he held up a post office) and on January 24, 1974 he pled guilty to assaulting a United States Postal Clerk. He was sentenced for this crime to ten years in prison to run concurrent with the state sentence. This is the sentence challenged in this appeal. At the time of sentencing in 1974 Lawary was 18
The defendant replied "I just needed some money — I couldn't get no job or nothing." The judge then said:
On June 26, 1974 the Supreme Court decided Dorszynski v. United States, supra, reversing 484 F.2d 849 (7th Cir. 1973) and holding that if an eligible defendant is denied sentencing under the Youth Corrections Act, an explicit finding that he would derive no benefit therefrom must be made at sentencing. Relying on this decision Lawary moved on May 29, 1975 to vacate his sentence. In denying the motion on May 18, 1976, Judge Foreman in effect made an ex post facto finding of no benefit. He said:
Judge Foreman also ruled that Dorszynski should not apply retroactively, citing Marshall v. United States, 389 F.Supp. 729 (E.D.Wis.1975), and Jackson v. United States, 510 F.2d 1335 (10th Cir. 1975). No appeal was taken from the denial of that motion.
On June 12, 1978, Lawary filed a new § 2255 motion, alleging two grounds for relief. First, that the court in sentencing had impermissibly considered prior unconstitutional convictions obtained when he was not represented by counsel. Second, if those unconstitutional convictions had not been considered, the court would have found sentencing under the Youth Corrections Act appropriate. The court's failure to make an explicit no benefit ruling was not raised by Lawary in this motion.
In denying Lawary's motion on June 29, 1978 Judge Foreman raised that issue sua sponte, and rejected it again, repeating language borrowed from his order denying the first motion. On the Dorszynski issue he said:
On the second issue the court said:
The District Court having raised sua sponte the Dorszynski issue of its failure to make explicit no benefit findings, that issue is properly before us on appeal.
The government argues that since Lawary's first § 2255 motion, seeking retroactive application of Dorszynski, was considered and denied by the district court, this second motion, in so far as it raises the same issue, should have been rejected. According to 28 U.S.C. § 2255, "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." This provision was given comprehensive interpretation in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). There the Court made clear that:
373 U.S. at 12, 83 S.Ct. at 1075. The decision to consider a successive § 2255 motion raising grounds raised before is in the district court's discretion.
Sanders v. United States, supra, at 18, 83 S.Ct. at 1079. See United States v. Brown, 207 F.2d 310, 311 (7th Cir. 1953). The cases cited by the government are not to the contrary, but indicate only that when a § 2255 motion has been denied and appealed, a second motion raising the same issues may be dismissed. Cf. United States ex rel. Townsend v. Twomey, 452 F.2d 350, 353-55 (7th Cir. 1972), cert. denied 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98.
Where a successive § 2255 motion is dismissed as raising issues identical to those raised before, no appeal having been taken from dismissal of the first motion, we have denied review on the grounds that otherwise "we would, in a real sense, be extending his time for appeal." Arrington v. United States, 425 F.2d 244 (7th Cir. 1970), cert. denied 400 U.S. 835, 91 S.Ct. 72, 27 L.Ed.2d 68, citing McGann v. United States, 261 F.2d 956 (4th Cir. 1958), cert. denied 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 and Burns v. United States, 229 F.2d 87 (8th Cir. 1956), cert. denied 351 U.S. 910, 76 S.Ct. 703, 100 L.Ed. 1445. In our case, however, Lawary's second § 2255 motion was not dismissed on the grounds that it raised issues identical to those raised before. The issues raised before were, on the court's own motion raised again, and then dismissed for the reasons given before. This amounts to a reconsideration, however cursory, of the merits of the issue it had already decided. The district court's earlier reasoning having been thus revived, the appeal therefrom is properly before us. To deny review of this issue, we would have to find that the district court's sua sponte reconsideration of the issue was an abuse of the discretion granted to it by § 2255. There being no basis for such a finding, we proceed to a consideration of the issue.
RETROACTIVE APPLICATION OF DORSZYNSKI
In United States v. Donner, 528 F.2d 276 (7th Cir. 1976), this court applied Dorszynski retroactively to a defendant who had been sentenced in 1970, holding that:
528 F.2d at 278. We did not discuss retroactivity, however, and referred to the date of the original sentencing only incidentally, in discussing other issues. Thus, Donner cannot be said to have held that Dorszynski applies retroactively.
Other circuits which have considered the retroactive application of Dorszynski, having previously applied it retroactively without comment, have held that it does apply retroactively, but that its requirement of an explicit no benefit finding may be satisfied by an ex post facto finding by the judge considering the § 2255 motion,
Brager v. United States, 527 F.2d 895, 898-899 (8th Cir. 1975).
The weakness with this position, adopted by Brager, Robinson, and McKnabb, is that it undermines the Supreme Court's purpose in Dorszynski in requiring an explicit no benefit finding, which was to facilitate appellate confirmation that the Youth Corrections Act had been considered and the discretion of the district court had been exercised. The Court said:
418 U.S. at 443, 94 S.Ct. at 3052. A court's ex post facto representation regarding what it had in mind at the time of sentencing five or more years before cannot so "unmistakably" "insure" the exercise of its discretion at sentencing as a statement made at the time and on the record. We find the accommodation represented by Brager unsatisfactory.
As a number of courts have recognized, however, if Dorszynski is retroactive, the appeals court remanding for resentencing may be compelling a useless act. Sappington v. United States, 518 F.2d 28, 29 (8th Cir. 1975) (dissenting opinion of Chief Judge Gibson).
Robinson, supra, n. 5, at 1110. Robinson bases its acceptance of an ex post facto finding on the proposition that "Dorszynski does not stipulate when the explicit finding of no benefit must be made," but we find this unconvincing.
Those courts which have held that Dorszynski applies only prospectively (see, n. 1, supra) have all done so on the basis of the criteria for retroactive application of constitutional rules of criminal procedure, enunciated in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973). These are,
Those criteria are equally applicable to non-constitutional decisions concerning statutory interpretation.
The fullest application of these criteria to Dorszynski is found in United States v. Brackett, 185 U.S.App.D.C. 394, 567 F.2d 501 (1977) (en banc), cert. denied 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58. There, although two judges specially concurred, and two dissented, all agreed that Dorszynski should not apply retroactively. Judge McGowan, speaking for the majority, emphasized that the underlying purpose of the Dorszynski rule was to assure "conscious consideration" of the rehabilitative possibilities available to youthful offenders under the YCA.
567 F.2d at 505. After reviewing the reliance interest, and the effect on the administration of justice, he concluded:
Our own consideration of the issue of retroactivity in light of the Stovall v. Denno criteria suggests that retroactive application is inappropriate. The purpose of Dorszynski, as we have indicated, was to assure the YCA sentencing was considered at the time sentence was pronounced. What was omitted cannot be restored. Reliance on the previous rule may have been extensive in this circuit, since in United States v. Dorszynski, 484 F.2d 849 (7th Cir. 1973), rev'd 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855, we held without much discussion that the Act was satisfied if it could be inferred from the record that YCA sentencing had been considered. A ruling in favor of retroactivity would also, we think, disrupt the administration of justice without being especially fruitful.
If Dorszynski were applied retroactively two classes of offender might be affected, those who would have been sentenced under the YCA had the judge not completely forgotten that option; and those who would have been denied YCA sentencing anyway. Both groups are now almost certainly too old for resentencing under the YCA. Some, however, will still be eligible for the same procedures under Young Adult Offenders sentencing (18 U.S.C. § 4216), which allows a court at its discretion to extend YCA benefits to defendants between 22 and 26 years old.
The purpose of sentencing under the YCA is to facilitate rehabilitation of youthful offenders. See Dorszynski, 418 U.S. at 431-436, 94 S.Ct. 3042. Once the offender is beyond the prescribed age limits, the assumption is that rehabilitation is no longer a reasonable possibility. One of the most significant benefits under the Act is the possibility that the conviction may be set aside if the offender is unconditionally discharged before the expiration of the maximum sentence. 18 U.S.C. § 5021. This allows the rehabilitated offender to start again with a clean slate. If rehabilitation is not a possibility, then such expungement is not appropriate. With the exception, therefore, of offenders still eligible for Young Adult Offender sentencing, YCA benefits would not now be available on resentencing.
Young Adult Offender sentencing, however, is left entirely to the district court's discretion, and the court is not required to make any explicit findings. United States v. Negron, 548 F.2d 1085 (2nd Cir. 1977), cert. denied 433 U.S. 912, 97 S.Ct. 2981, 53 L.Ed.2d 1096. Ross v. United States, 531 F.2d 839 (7th Cir. 1976), cert. denied 429 U.S. 837, 97 S.Ct. 106, 50 L.Ed.2d 104. We may assume that in most cases "our conscientious district judges" did consider and reject YCA sentencing, "even though their findings of no benefit have been implicit only ...." United States v. Kaylor, 491 F.2d at 1138. The likelihood that now, five or more years later, they would positively determine that the same offender would benefit is too remote to support retroactive application of the rule.
CONSIDERATION OF UNCONSTITUTIONAL CONVICTIONS
We turn now to the issue which Lawary himself raised in his § 2255 petition, the consideration by the judge in sentencing of three prior juvenile convictions obtained without appointment of counsel. The government does not deny that United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), applies to the consideration in sentencing of juvenile convictions. The government argues that resentencing is required only where the sentence was enhanced by consideration of the unconstitutional convictions, and that the district judge indicated in dismissing the § 2255 motion that the sentence was not enhanced.
There are two problems with the government's argument. First, the district court did not explicitly say that Lawary's sentence had not been enhanced. The court said that it:
Although the court said it did not consider the prior convictions, it is undeniable that it did in some sense "consider" them, since it explicitly commented on them, saying,
The second problem with the government's argument is that Lawary raised two claims in his petition — first that consideration of the unconstitutional convictions enhanced the adult sentence he was given and second that consideration of those convictions prevented his being sentenced under the YCA — but the district court did not treat them as separate claims. The district court's ex post facto no benefit finding does not expressly answer the second of Lawary's allegations, since the no benefit finding could conceivably have been based on unconstitutional considerations.
The question before us then, is what disclaimer of reliance on invalid prior convictions is sufficient to satisfy Tucker? In Tucker itself the trial judge heard testimony at the sentencing hearing regarding the prior convictions. 404 U.S. at 444 n. 1, 92 S.Ct. 589. In dismissing the § 2255 motion he found that use of those invalid prior convictions for impeachment purposes had been harmless error, since evidence of guilt had been overwhelming. Tucker v. United States, 299 F.Supp. 1376 (N.D.Calif.1969). He did not refer to their possible influence on sentencing, and the Court of Appeals, affirmed by the Supreme Court, remanded for resentencing since there was "a reasonable probability" that their consideration had resulted in a heavier sentence. In Tucker, in other words, there had not really been a disclaimer of influence on sentencing.
This Court has not explicitly discussed this issue. In Crovedi v. United States, 517 F.2d 541 (7th Cir. 1975) the sentencing judge dismissed the § 2255 motion, and
517 F.2d at 546-47. We interpreted this as a reaffirmation of the sentence without regard
We then commented:
The Fourth Circuit has held insufficient statements that the original sentence remained "appropriate," Stepheney v. United States, 516 F.2d 7 (4th Cir. 1975) (en banc); that the judge "feels that there would not have been a lesser sentence," Strader v. Troy, 571 F.2d 1263 (4th Cir. 1978); that the court "felt then and feels now that the twenty year sentence imposed was just," Wren v. United States, 540 F.2d 643 (4th Cir. 1975). The Fourth Circuit requires that "the judge must be able to say without qualification that the sentence was uninfluenced by the allegedly invalid prior convictions," Strader v. Troy, supra, at 1267. Cf. Grandison v. Warden, 580 F.2d 1231 (4th Cir. 1978). This is more stringent than the standard we have adopted in Crovedi and Cardi. The Sixth Circuit standard seems closer to ours, since they have upheld dismissal of a § 2255 motion based on a statement that the sentence was "fair, just and equitable and fully supported by the record." Reynolds v. United States, 528 F.2d 461 (6th Cir. 1976).
Crovedi and Cardi are not dispositive of this appeal, however, because in those two cases there was an express determination that the original sentence remained appropriate. In a recent comprehensive reconsideration of procedure in Tucker appeals, the Ninth Circuit has explained that a district court may dismiss a § 2255 motion on two different rationales. Farrow v. United States, 580 F.2d 1339, 1352-53 (9th Cir. 1978) (en banc). The court may determine from the record at the time of the § 2255 motion that a new sentence imposed without regard to the challenged convictions would be the same. This amounts to a "resentencing on the basis of a record that excludes the challenged priors." 580 F.2d at 1353. Since this is exactly the relief the petitioner seeks, it is perforce sufficient. This is what was done in Crovedi and Cardi. Alternatively the judge may rely on his memory and state that at the time of sentencing he did not rely on the challenged convictions, or was not influenced by them. This too may be sufficient ground for dismissal. 580 F.2d 1339, 1352, citing Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 736 (1977).
Nonetheless, according to the Ninth Circuit
The Ninth Circuit limited Leano, supra, in Wilson v. United States, 534 F.2d 130 (9th Cir. 1976), holding that even where the § 2255 judge's disclaimer of reliance is contradicted by the record, if there is a "substantial basis in the record on its face to support the court's statement of non-reliance, then the reconsideration mandated by Tucker has been performed." 534 F.2d at 133. As the Ninth Circuit explained further in Farrow, supra, at 1355-56 n. 27, "the judge's finding based on his own recollection may itself provide this `substantial basis.'" This is best understood as recognizing that where a § 2255 judge's statement that he did not consider the challenged prior convictions is contradicted by the record, the seeming contradiction may be resolved by taking the judge's statement to mean that he did not rely on or accord significant weight to the challenged convictions. Where the § 2255 judge was also the sentencing judge, such deference to his recollection is appropriate. As the Ninth Circuit said, in Farrow supra, at 1355-56, n. 27,
Quoting 534 F.2d at 131. In other words, in the face of the court's disclaimer of reliance reversal is required only where, as in Leano, the reliance itself is manifest and incontrovertible from the record. No such reliance being manifest in the record before us, we decline to reverse the district court's dismissal of Lawary's § 2255 motion.
We would prefer that the district court had more clearly addressed the two separate grounds which Lawary raised in his petition. Nonetheless, we understand his disclaimer to apply equally to both grounds, and to mean that the prior convictions influenced neither the adult sentence imposed, nor the decision to reject YCA sentencing. With regard to the latter, we note that the four to twelve year state sentence Lawary had recently incurred would itself have virtually precluded YCA sentencing, since Lawary would be 22, and too old for YCA sentencing, before the end of his minimum term.
Favoring retroactivity, but accepting ex post facto findings:
Brager also cites, in favor of retroactivity, United States v. Hopkins, 418 U.S. 909, 94 S.Ct. 3201, 41 L.Ed.2d 1155 (1974) vacating United States v. Kaylor, 491 F.2d 1133 (2nd Cir. 1974) (en banc) for further reconsideration in light of Dorszynski. This is not sound authority for retroactive application, however. Kaylor had held that an express no benefit finding was required, that that would not apply retroactively, and that reasons must be given to support a no benefit finding. In Dorszynski the Court was silent as to retroactive application, but held that reasons need not be given. The remand of Kaylor thus clearly concerns its finding that reasons are required, and need not affect its holding on retroactivity at all.