Moore v. Jarvis

¶4KRAVITCH, Circuit Judge:

¶5Linda S. Moore, convicted for the third time of driving in Georgia under the influence of alcohol and sentenced to three months in jail and twenty-one months probation, appeals the denial of her petition for habeas corpus. We reverse, in part, and remand the case to the district court.

¶6I. FACTS

¶7Moore was arrested in June 1982 in the City of Oxford, Georgia, and charged with driving under the influence of alcohol (“DUI”), in violation of O.C.G.A. § 40-6-391.1 She pleaded nolo conten-dere, and, pursuant to subsection 391(c)(1), she was fined $200.00.2 In March 1985, Moore again was arrested for violating section 40-6-391 — this time by the Sheriffs Department of Rockdale County, Georgia. She pleaded guilty, and, pursuant to subsection 391(c)(2), she was ordered to pay a $600.00 fine, to perform eighty hours of community service, and to surrender her driver’s license for 120 days.3 On neither occasion did Moore retain counsel or receive the assistance of appointed counsel.

¶8In April 1985, Moore obtained a new driver’s license under an assumed name. In July 1985, she was arrested in DeKalb County, Georgia, for violating section 40-6-391 a third time. She also was charged with leaving the scene of an accident, driving with a suspended driver’s license, giving a false name, and disregarding a traffic-control device.

¶9Trial on the July 1985 charges was held before the Circuit Court of DeKalb County. *1568Prior to trial, Moore requested and received the services of appointed counsel, who filed a motion in limine to bar consideration of Moore’s prior DUI convictions at sentencing for the July 1985 DUI offense. The basis of the motion was twofold. First, counsel argued that Moore’s prior convictions are constitutionally invalid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),4 and that Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967),5 bars consideration of such constitutionally infirm prior convictions in aggravation of sentence for a subsequent offense. Second, counsel argued that, even if Moore’s prior convictions were valid under Boykin, their consideration at sentencing for the July 1985 offense was barred by Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169reh’g denied, 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980), which prohibits consideration of constitutional but uncounseled prior convictions as a predicate for an enhanced prison term for a subsequent, counseled offense. In support of the motion, Moore testified that in neither of the prior cases had she been sworn, represented by counsel, brought before a judge, or informed of her rights as an accused person. The State introduced no evidence to rebut Moore’s testimony.

¶10The trial court denied Moore’s motion in limine without opinion. Moore subsequently pleaded guilty to the DUI and leaving-the-scene charges, and the court sentenced her, pursuant to section 40-6-391(c)(3), to three months in jail, twenty-one months probation, a $1,050.00 fine, examination for alcohol dependency, and twenty-four month suspension of her driver’s license.6 The Georgia Court of Appeals upheld the sentence, Moore v. State, 181 Ga.App. 548, 352 S.E.2d 821 (1987), and both the Supreme Court of Georgia and the Supreme Court of the United States denied certiorari. See Moore v. State, No. 44333 (Ga. Feb. 17, 1987), reh’g denied, No. 44333 (Mar. 11, 1987); Moore v. Georgia, 484 U.S. 904, 108 S.Ct. 247, 98 L.Ed.2d 204 (1987).

¶11Moore’s petition for a federal writ of habeas corpus raises three claims: first, that under Boykin and Burgett, consideration of her prior convictions, which were *1569based upon pleas not knowingly and voluntarily made, denied her due process; second, that under Baldosar, consideration of her prior convictions, which also were un-counseled, violated the sixth amendment; third, that the State’s failure to prove, by reliable evidence, that she had been convicted of DUI on two prior occasions denied her due process.

¶12The district court denied habeas, holding that there is “no apparent precedent supporting” Moore’s claim regarding consideration of unknowing and involuntary pleas, that Baldosar is inapposite in the context of section 40-6-391, and that Moore’s claim concerning the standard by which her prior convictions were proven at sentencing was procedurally barred. Finding that the petition presented substantial questions of federal law, however, the court granted Moore’s application for a certificate of probable cause to appeal.

¶13II. DISCUSSION

¶14On appeal, Moore renews the three arguments she presented to the district court. At the outset, we note our agreement with the district court’s determination that the due-process challenge to the adequacy of the proof of Moore’s prior convictions is procedurally barred.7 Thus, we discuss only the Boykin/Burgett and Bal-dosar claims.

¶15A. The Boykin/Burgett Claim

¶16One of Moore’s prior convictions was based upon a guilty plea, the other upon a plea of nolo contendere. Her petition asserts that neither plea was knowingly and voluntarily made within the meaning of Boykin v. Alabama and that, therefore, the trial court’s consideration of those convictions at sentencing violated the fourteenth amendment’s due-process clause as interpreted by the Supreme Court in Burgett v. Texas.8

¶17The district court did not hold an evidentiary hearing on Moore’s Boy-kin/Burgett claim. Nor did it cite any state-court determination that Moore’s pri- or pleas were knowingly and voluntarily *1570made.9 Instead, the district court disposed of this claim by stating that “there is no apparent precedent supporting Petitioner's theory that the misdemeanor pleas were presumptively involuntary merely because she was not represented by counsel.” Moore v. Jarvis, No. 1:87-cv-1473-ODE, mem. op. at 6 (N.D. Ga. Aug. 4, 1988).

¶18The district court’s holding indicates to us that the court believed that Moore’s petition raised only the purely legal argument that uncounseled guilty or nolo con-tendere pleas are presumptively unknowing and involuntary and that, consequently, no determination whether Moore’s prior pleas actually were knowingly and voluntarily made was necessary to dispose of her Boykin claim. We disagree. Although Moore’s petition fairly may be read to suggest the existence of such a presumption, her Boykin/Burgett claim raises more than this purely legal question.

¶19Moore’s petition and supporting papers affirmatively allege that her prior pleas actually were unknowingly and involuntarily made, that she raised this issue in the motion in limine and at sentencing, that she testified at the hearing on the motion that she was neither sworn, nor represented by counsel, nor brought before a judge, nor informed of her rights in either of the prior cases, and that the State failed to introduce any evidence, either at the hearing on the motion in limine or at sentencing, tending to show that Moore’s prior pleas were knowingly and voluntarily made. In fact, the petition and supporting papers assert that the evidence before the trial court at the hearing on the motion in limine demonstrated affirmatively that her prior pleas were not valid under Boykin. The brief filed in this court on her behalf also makes these points. Indeed, from the record before us, it appears that, although the trial court and the Georgia Court of Appeals failed to address the point explicitly, Moore made this contention at trial and at each stage of direct and collateral review.10

¶20In light of these allegations, we hold the district court’s disposition of Moore’s Boykin/Burgett claim to be insufficient. Although we agree with the district court that uncounseled pleas are not presumptively involuntary and unknowing, the district court’s rejection of the “presumptively involuntary” prong of Moore’s argument left unaddressed Moore’s claim that her prior pleas were actually unknowingly and involuntarily made and that the trial court’s consideration of those pleas at sentencing denied her due process of law.11 Therefore, we re*1571mand the case for an evidentiary hearing and such further consideration of Moore’s Boykin claim as the district court deems necessary.12 On remand, we suggest that the district court give particular consideration to Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), which sets forth the proper analysis for evaluating a habeas petitioner’s claim that a state trial court improperly considered a prior conviction based upon a plea not knowingly and voluntarily made within the meaning of Boykin.13

¶21B. The Baldosar Claim

¶22Moore argues that the gist of the Supreme Court’s decision in Baldosar is that “prior uncounseled misdemeanor conviction^] [cannot] be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.” Baldasar, 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring). The State responds that Baldosar stands for the much narrower proposition that prior uncounseled convictions may not be used “under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.” Baldasar, 446 U.S. at 223, 100 S.Ct. at 1585 (per curiam). The State notes that at no point does section 40-6-391(c) elevate the offense to a felony, and imprisonment is never mandatory, regardless of the number of prior convictions offered in aggravation at sentencing. Thus, the State concludes, Baldosar is inapposite because section 40-6-391(c) is not an “enhanced penalty statute” within the meaning of that decision.

¶23The district court agreed with the State, observing especially that “the prior un-counseled conviction did not automatically require a sentence of incarceration” and that “[t]he sentencing judge’s discretion, whether it be the defendant’s first, second, third, or subsequent conviction, remains throughout to impose a period of incarceration of up to, but no more than, one year.” Moore v. Jarvis, supra, mem. op. at 5-6. Although we tend to agree with the district court that O.C.G.A. § 40-6-391 is not the sort of statute under which Baldosar forbids consideration of an indigent defendant’s prior, uncounseled convictions, we need not reach that issue in order to resolve this case because Moore’s factual allegations are insufficient to support a Bal-dosar claim.14

¶24*1572In Scott v. Illinois, the Supreme Court held that “the Sixth and Fourteenth Amendments to the United States Constitution require ... that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979) (emphasis added). In essence, the Scott holding set up a trade-off whereby states could choose between providing indigent defendants with appointed counsel and foregoing jail time for convictions obtained without appointed counsel. Scott holds that, if the state wants to incarcerate an indigent defendant, the state must provide appointed counsel.

¶25In Baldasar, the Court overturned the sentence of an “indigent petitioner [who], after his conviction of petit larceny, was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense.” 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring). The common rationale of the three concurring opinions constituting the holding was that the period by which the sentence for the subsequent conviction was increased actually was attributable to the prior, uncounseled conviction. See, e.g., 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring) (“That [Baldasar] has been deprived of his liberty ‘as a result of [the first] criminal trial’ could not be clearer.”). Thus, it appears that the concern raised by the Balda-sar case was that a state prosecutor, by agreeing not to seek imprisonment of an indigent defendant upon conviction of a first or second prosecution, could deny the indigent defendant the services of appointed counsel while building a record of un-counseled convictions which, if offered in aggravation at a single subsequent proceeding for which counsel was provided, could trigger the imprisonment of the defendant for a much longer period than that to which he would have been subject for the single counseled conviction standing alone. In response to this apparent concern, the Court held that, having opted under Scott to deny counsel and forego incarceration with respect to the first proceeding, the state could not “have it both ways” by tacking onto the sentence for the subsequent, counseled conviction jail time which, as a practical matter, was attributable — under the enhancement scheme — to the prior, un counseled conviction. See 446 U.S. at 224 n.*, 100 S.Ct. at 1586 n.* (Stewart, J., concurring) (noting that the brief submitted by the State of Illinois in the Scott case anticipated the Baldasar result).

¶26The concern motivating Baldasar, and the rationale underlying it, however, apply only with respect to defendants who were indigent at the time of their prior conviction(s), for only in their cases will it have been the state’s failure to provide appointed counsel during the prior proceeding that precipitated the defendant’s incarceration for a term attributable to a conviction for which he received no representation. In short, a non-indigent defendant who eschews representation by retained counsel in one criminal proceeding has no claim under Baldasar when, in a subsequent proceeding, the state offers a conviction obtained in the first proceeding as the predicate for an enhanced penalty under a repeat-offender statute. In such a case, the state will not have circumvented its duty under Scott in the first proceeding, as none will have been owed, and the state will not have unconstitutionally “had it both ways.”

¶27Expressed differently, we do not read Baldasar to forbid predication of an enhanced term of imprisonment upon any conviction obtained in a proceeding in which the defendant did not have counsel. Instead, we read Baldasar to forbid only *1573the sentencing of a defendant to an increased term of incarceration solely upon consideration of a prior conviction obtained in a proceeding for which, due to the indigence of the defendant or some misconduct of the State, counsel was unavailable to the defendant.

¶28Here, Moore has not alleged — let alone proven — that she was indigent at the respective times of her prior convictions or that the State somehow prevented her from obtaining the services of retained counsel. Consequently, she has failed to allege a Baldosar violation.

¶29Accordingly, the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART, and the case is REMANDED to the district court for further proceedings consistent with this opinion.

¶55COX, Circuit Judge,

¶56dissenting:

¶57I join in that part of the majority opinion addressing the Baldosar claim. I disagree with the majority’s disposition of the Boy-kin/Burgett claim.

¶58My disagreement with the majority results from our different views of the record in this case. I understand Moore to be alleging simply that her pleas were unknowing and involuntary because they were entered without the benefit of a Boykin hearing. I do not understand her to be claiming that they were in fact unknowing or in fact involuntary. Even if I did think she claimed that her pleas were actually unknowing and involuntary, I would require that she tell the court specifically how they were unknowing or involuntary before she is entitled to an evidentiary hearing.

¶59The fact that no Boykin hearing was held is undisputed. It is obvious, therefore, that the majority does not hold that the absence of a Boykin hearing in and of itself entitles Moore to relief, as otherwise a remand for an evidentiary hearing would be unnecessary. It is clear in this circuit that the absence of a Boykin hearing does not, without more, subject the convictions in question to collateral attack. See Dulin v. Henderson, 448 F.2d 1238 (5th Cir.1971); Dennis v. Henderson, 435 F.2d 1288 (5th Cir.1970).

¶60The habeas petition filed in the district court contained the following allegations (and only the following allegations) as the basis of her attack on the validity of her sentence:

Petitioner’s restraint is contrary to the United States Constitution in the following particulars:

A) Sentencing the Petitioner term of imprisonment based on two prior un-counseled misdemeanor convictions which were also constitutionally invalid because Petitioner was not advised of her rights and did not knowingly and voluntarily waive any such rights violated the Sixth and Fourteenth Amendments.

B) Using an uncounseled misdemeanor sentence to invoke a minimum statutory jail sentence or to enhance a sentence of confinement violates the Sixth and Fourteenth Amendments.

C) Sentencing the Petitioner to a term of imprisonment based on two prior convictions, the validity or reliability of which, were not proven under any permissible standard of evidence violated the due process and equal protection guarantees of the Sixth and Fourteenth Amendments.

¶61(Rl, Tab 1, pages 2 & 3). The Magistrate recommended that the petition be denied (Rl, Tab 12). Moore then objected to the Magistrate’s Recommendation (Rl, Tab 13), arguing that the Magistrate did not address her claim that the pleas were not knowingly and voluntarily entered. Her objection stated: “That is, not only were the pleas uncounseled, the pleas were not knowing and voluntary in that they were not taken in open court or even before a judge; they were taken without advisement or waiver of any constitutional right; there was no legal or factual foundation laid.”

¶62No other court presented with Moore’s claims has ever understood them to include a claim that her pleas were in fact unknowing and involuntary. The majority opinion states that “Moore’s petition and supporting papers affirmatively allege that her prior pleas actually were unknowingly and involuntarily made....” The petition *1574clearly included no such allegation, and I fail to find any such allegation in the “supporting papers” filed with the petition. Perhaps this explains why such a claim escaped the attention of the state trial court, the state appellate court, and the district court below.1

¶63Even if we were to construe Moore's claims to include a claim that her pleas were unknowing or involuntary, before requiring an evidentiary hearing, we should require her to tell the court specifically how they were unknowing or involuntary. What should she have known but did not know? In what way was she coerced? Because conclusory allegations not supported by specifics do not entitle Moore to an evidentiary hearing, see Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), she should at least be required to amend her petition to allege facts which, if proven, would entitle her to relief.

¶64This court provides Moore an evidentiary hearing she does not seek — either in the district court or in this court — on a claim she does not assert — either in the state courts or in the district court. I therefore dissent.