JAMES ALFONSO GREENE, PETITIONER V. UNITED STATES OF AMERICA No. 89-6239 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals is reported at 880 F.2d 1299. /1/ JURISDICTION The judgement of the court of appeals was entered on August 21, 1989. A petition for rehearing was denied on September 28, 1989. Pet. App. B1. The petition for a writ of certiorari was filed on November 24, 1989. The jurisdiction of this Court is invoked under U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to Section 2255 relief on the ground that his sentence was enhanced in part on the basis on his 1962 burglary convictions that were subsequently determined to be invalid where (1) petitioner did not raise this issue at trial or on direct appeal from his conviction, and (2) the state court that invalidated those convictions did so because the State was unable to produce evidence from 1962 to buttress the entries on the 1962 Judgment and Commitment order showing that petitioner was sentenced on those burglary charges. STATEMENT Following a jury trial in the United States District Court for the Southern District of Georgia, petitioner, a felon, was convicted of possessing a firearm in violation of 18 U.S.C. App. 1202(a). /2/ He was sentenced to fifteen years' imprisonment without parole. The court of appeals affirmed his conviction. United States v. Greene, 810 F.2d 999 (11th Cir. 1986). Thereafter, petitioner filed a motion under 28 U.S.C. 2255 to vacate his sentence. The district court denied the motion. Pet. App. A1. The court of appeals affirmed. 1. The evidence at trial and the procedural history of this case are set forth in the opinion of the court of appeals. 880 F.2d at 1299-1307. Briefly, in 1985, federal agents seized three firearms from petitioner's residence following his arrest on drug charges. Petitioner, a prior felon, was tried and convicted for possessing a firearm. During the trial and at sentencing, the government submitted evidence that petitioner had six previous burglary convictions, four in 1962, one in 1970, and one in 1977. 880 F.2d at 1300. The district court sentenced petitioner to 15 years' imprisonment without parole, which was the mandatory minimum sentence required by 18 U.S.C. App. 1202(a) for a defendant with "three previous convictions by any court * * * for robbery or burglary." 880 F.2d at 1301. Neither at trial nor on direct appeal did petitioner allege that he had not been convicted on the 1962 burglary charges. 880 F.2d at 1305. The court of appeals affirmed petitioner's conviction. United States v. Greene, 810 F.2d 999 (11 Cir. 1986). 2. In 1987, petitioner petitioned for a writ of habeas corpus in a Georgia state court, contending that he was not convicted on the 1962 burglary charges. A Judgment and Commitment Order relating to those charges indicated that petitioner received concurrent sentences on the indictment that charged the burglaries and a separate indictment that charged petitioner with aggravated assault. See Pet. App. D10-D11. No other records were available: a transcript of the 1962 proceedings was not located; petitioner's trial counsel had died in the interim and his files were destroyed; and the sentencing court judge and other official personnel had no current recollection of the matter. Gov't. C.A. brief at 2 n.1. Holding that no transcript of plea proceedings relating to the alleged 1962 burglary indictment existed and that petitioner "never signed any paper indicating that he intended to plead guilty to that indictment," the state court concluded that "no valid plea of guilty or conviction for burglary was entered." Ex. B to Pet. App. E (petitioner's 2255 motion), at 2. 3. Petitioner then filed a motion under 28 U.S.C. 2255 to set aside his sentence. Pet. App. E. He contended that as a result of the state court's decision, there were only two valid prior burglary convictions that could be used to enhance his sentence under 18 U.S.C. App. 1202(a). Because the statute requires three convictions to support imposition of the mandatory 15-year sentence that petitioner received, that sentence was alleged to be invalid. On April 6, 1988, the district court held a hearing on petitioner's motion. Pet. App. C1-C24. The government contended that petitioner had waived his challenge to the 1962 convictions by not raising the issue at trial or on direct appeal. It also submitted evidence that petitioner was convicted in 1981 for burglary, a conviction that could be used together with petitioner's 1970 and 1977 burglary convictions to sustain petitioner's sentence. In response, petitioner contended: (1) that he had cause for not challenging the validity of his 1962 convictions because his attorney was ineffective in failing to raise the issue at trial after petitioner told him that they were invalid; (2) his 1981 conviction was invalid because he pleaded guilty without the assistance of counsel and without having waived counsel; and (3) his 1977 conviction was improperly used to enhance his sentence because the Judgment and Commitment Order reflected only a conviction for theft, not burglary. The district court concluded that petitioner's sentence was supported by at least three valid burglary convictions. The court found, after examining the transcript of petitioner's guilty plea to the 1981 burglary, that petitioner validly waived counsel at that proceeding, rejecting petitioner's contrary assertion as "not credible." Pet. App. C22. It scheduled another hearing, however, to take testimony on the issue of whether petitioner's counsel denied petitioner effective assistance by not raising the invalidity of petitioner's 1962 burglary convictions at trial or on direct appeal. Pet. App. C22-C23. The additional hearing was held on June 16. Pet. App. D1-D18. The sole witness was David Cohen, a Federal Public Defender who represented petitioner at trial on the instant offenses. Cohen testified that he did not recall petitioner having told him that he had not pleaded guilty to the 1962 burglary indictment. Pet. App. D4-D5. Cohen emphasized that he had carefully examined the 1962 burglary charges, and that he had attacked them on other grounds at trial. Pet. App. D5. Cohen also testified that he had examined the 1962 Judgment and Commitment order that reflected that petitioner was sentenced to concurrent sentences on the burglary counts and on the assault charge. Pet. App. D9-D11. The district court denied petitioner's motion. It held that petitioner was not denied the effective assistance of counsel at trial, finding that Cohen "did pursue every lead which was apparent to him, and that at no time did (petitioner) advise Mr. Cohen that he challenged that particular conviction." Pet. App. D18. 4. The court of appeals affirmed. First, the court held that the 1981 burglary conviction could not be used to support the enhanced sentence. The court found that the record of the 1981 guilty plea hearing was inadequate to conclude that petitioner knowingly and intelligently waived his right to counsel at that proceeding. 880 F.2d at 1301-1304. The court held that the Sixth Amendment bars the use of such a conviction for purposes of enhancing punishment under Section 1202. 880 F.2d at 1302. /3/ The court also held, however, that petitioner could not attack the use of the 1962 burglary convictions to enhance his sentence, because he had not established cause for his failure to raise the alleged invalidity of the 1962 burglary convictions at trial or on direct appeal. 880 F.2d at 1307. The court rejected petitioner's claim that cause was demonstrated by his counsel's ineffective performance, stating that the district court's finding that his counsel performed diligently was not clearly erroneous. 880 F.2d at 1306. The court emphasized that petitioner had been sentenced to prison pursuant to a Judgment and Commitment Order that reflected that petitioner had been convicted for four burglaries; that all available records indicated that petitioner had been convicted of burglary; and that petitioner did not inform his trial counsel that he had not pleaded guilty to any of the 1962 burglaries. Ibid. Under those circumstances, petitioner's counsel did not err in not investigating further the possibility that petitioner's 1962 burglary convictions were invalid. Ibid. The court also found that, despite the fact that the Judgment and Commitment Order for the 1977 conviction reflected a conviction for theft, the record of the case showed that it was properly classified as a conviction for burglary. 880 F.2d at 1307. Alternatively, the court found that even if that conviction were not for burglary, petitioner would not be entitled to relief because the 1962 burglary convictions were sufficient to support imposition of enhanced punishment under Section 1202. Ibid. ARGUMENT Petitioner contends (Pet. 9-12) that the courts below erred in denying his Section 2255 motion. He argues that he was prejudiced by the imposition of an enhanced sentence based in part on 1962 burglary convictions that have since been determined to be invalid. The court of appeals, however, correctly held that Section 2255 relief was unwarranted because petitioner did not show "cause" for his failure to raise the issue at trial or on direct appeal. The decision of the court of appeals does not conflict with any decision of any other court. Further review of this issue is not warranted. 1. Section 2255 is limited to constitutional and jurisdictional claims and to those trial errors that result in a complete miscarriage of justice. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Section 2255, however, is not a substitute for a direct appeal. If a defendant did not raise his claim at trial or on direct appeal, he cannot prevail on that claim in a Section 2255 motion unless he shows both "cause" and "prejudice" for the default. United States v. Frady, 456 U.S. 152, 167 (1982). To demonstrate cause, the defendant must ordinarily show that his default was due to a factor external to the defense, such as the novelty of the claim or interference by authorities. Murray v. Carrier, 477 U.S. 478, 488 (1986). In addition, ineffective assistance of counsel will also constitute cause for a default. Ibid. On the other hand, a defendant might not have to meet the cause and prejudice test if a constitutional violation resulted in the conviction "of one who was actually innocent," id. at 496, or where the error "undermined the accuracy of the guilt or sentencing determination." Smith v. Murray, 477 U.S. 527, 539 (1986). 2. Petitioner argues first (Pet. 9-10) that he should not be required to meet the cause and prejudice test because he was sentenced on the basis of convictions that the state subsequently determined to be invalid. Petitioner overlooks, however, that the Georgia state court invalidated his 1962 burglary convictions only because the State's evidence -- after the passage of 25 years -- was "inadequate to rebut" petitioner's evidence that he was not convicted on the 1962 burglary charges. Ex. B. to Pet. App. E (petitioner's 2255 motion), at 2. The State's inability to corroborate the entries on the 1962 Judgment and Commitment order was due to the fact that, during the lengthy interim, the record of petitioner's 1962 trials became unavailable; petitioner's attorney's files were destroyed after the attorney died; and the sentencing judge and other court personnel forgot about the case. Under these circumstances, petitioner has not shown that the use of his 1962 burglary convictions to enhance his sentence constituted a fundamental defect in the proceedings that would entitle him to Section 2255 relief. Petitioner contends further (Pet. 10-11) that the cause and prejudice standard should not apply because he had no opportunity to raise the invalidity of his 1962 burglary convictions at trial. To the contrary, petitioner could have filed a motion challenging the validity of those convictions with the district court at any time prior to sentencing. Petitioner was on notice that the government would seek to enhance his sentence with his 1962 burglary convictions because they were alleged in the indictment. Petitioner undoubtedly knew whether he had been convicted on the 1962 burglary charges. Therefore, he had sufficient opportunity at trial to challenge them. Finally, petitioner contends (Pet. 11-12) that he demonstrated cause for his default because his attorney was ineffective in not raising the invalidity of his 1962 burglary convictions at trial. The courts below, however, held that petitioner's trial counsel was not ineffective in this matter. Their essentially factual determination warrants no further review. Cf. Burger v. Kemp, 483 U.S. 776, 785 (1987) (findings of two courts below that attorney did not engage in conflict of interest entitled to substantial deference). As explained by the court of appeals (880 F.2d at 1306): Petitioner's 1962 convictions, including his burglary convictions, were the basis of a Judgement and Commitment Order pursuant to which petitioner had been incarcerated for a number of years. All of the records regarding petitioner's prior arrests indicated that he had been convicted and incarcerated for burglary. Petitioner did not inform counsel, and counsel had no other indication, that he had not pleaded guilty and had not been convicted after trial of burglary in 1962. For those reasons, petitioner's counsel did not err in not investigating further the possibility that petitioner's 1962 burglary convictions were invalid. In sum, petitioner has not shown "cause" for his failure to challenge the validity of his 1962 burglary convictions at trial and on direct appeal. Therefore, the courts below correctly denied his Section 2255 motion. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney FEBRUARY 1990 /1/ For convenience in referring to unpublished materials, we have designated by letter such materials in the appendices to the petition for certiorari. The judgment of the district court has been designated Appendix A. The denial by the court of appeals of petitioner's petition for rehearing is Appendix B. The transcript of the district court hearing on April 6, 1988 is Appendix C. The transcript of the district court hearing on June 16, 1988 is Appendix D. Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255, with exhibits A and B, is Appendix E. /2/ Petitioner was convicted on March 27, 1986. Later that year, the statute under which he was convicted was amended and recodified. Pub. L. No. 99-308, 100 Stat. 449 (1986). The current statute, 18 U.S.C. 924(e)(1), provides for a mandatory fifteen year prison term for a defendant who has three previous convictions for a "violent felony or a serious drug offense, or both." Section 924(e)(2)(B)(ii) includes the offense of burglary within the definition of a "violent felony." This case would not be affected by the decision in Taylor v. United States, No. 88-7194, cert. granted, October 10, 1989. Taylor concerns the scope of the term "burglary" for purposes of Section 924(e)(2)(B) (ii). Because petitioner was convicted under the predecessor statute, 18 U.S.C. App. 1202, the meaning of Section 924(e)(2)(B)(ii) cannot affect the validity of his sentence. Moreover, petitioner nowhere asserts that his 1962 convictions, which are the sole subject of the petition, could not if valid have been used to enhance his sentence under Section 1202. /3/ Petitioner had asserted that the government had forfeited any right it may have had to use the 1981 conviction against him because, prior to petitioner's trial, the government had filed a Notice of Superceding Indictment in which it stated that the 1981 conviction "was without counsel and could not be used to enhance punishment under (18 U.S.C. App. 1202)." Given the holding by the court of appeals that the 1981 conviction could not be used to enhance punishment because petitioner had not knowingly and intelligently waived his right to an attorney, it was unnecessary for the court to decide whether the government would have been precluded from relying on the 1981 conviction in any event.