Williams, Milton Veran ( 2015 )

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WRIT NO.
"EX PARTE § IN THE CRIMINAL.
§ DISTRICT COURT NO. ~ OF
§·" DALLAS COUNTY I TEXAS
ORDER DESIGNATING ISSUES
~aving reviewed the Applicant's Application for Writ/ of Habeas_
Corpus, the Court finds tha~ the.re are controverted, previously
unresolved issues of fact which are material to the legality of the
Applicant's confinement.
_The Court appoints FRED C. MCDANIEL to resolve the issues and
.··· .
pr~pare findings of fact and conciusions of law for the Court. The
issues may be resolved by affioavits, depositions, interrogations,
The Clerk of the Court is ORDERED to send a copy ofthis order
· to the Court of Criminal Appeals,· Applicant, or Applicant's counsel
if the Applicant is represented by counsel, and to counsel for the
<', State~IGNED AND ENTERED thiS~'day ,----:;-r-~---·
of ___· ---""--' 2001..
iE STATE.OF TEXAS
JUNTY OF OAL~f.\S
i, Jim H~ar;;~:1; Dis~r;r:t C!erk of
~llns Cour•t;;, Tc-,x::zG, dc- ho;oby certify
=~ t.h~.~ fo~·r:~;~}:-::_;:~·: ~-;;, ~~ t·u:~ cJr~d correct
',,dfb·adl
;~te"'intr;_~'/'~~;:~~~:: :::::.~ , WHICH WERE NOT WAIVED· OR DISM I SS.EDt THE COURT,· AFTER HEARING
THE DEFENDANT,.S PLEA TO SAID PARAGRAPH AS SET OU ABOVE AND AFTER HEARING
FURTHER EVIDENCE . ON THE ISSUE OF PUNISHMENT, MAKES ITS FINDING AS SET OUT
ABOVE. IF TRUE THE COURT IS OF THE· OPINION AND FINDS DEFENDANT HAS BEEN
HERETOFORE CONViCTED OF SAID OFFENSES ALLEGED IN THE SAID ENHANCEMENT 'I
PARAGRAPHCS) AS MAY BE SHOWN ABOVE.
AND WHEN SHOWN ABOVE THAT THERE .WAS A PLEA BARGAIN AGREEMENT . THE .j
DEFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD FOLLOW OR REJECT' SUCH
AGREEMENT AND IF THE COURT RE~ECTED SUCH AGREEMENT THE DEFENDANT WAS GIVEN AN
OPPORTUNITY TO WITHDRAW HIS PLEA PRIOR TO ANY FINDING ON THE PLEA .
.· · WHEN IT IS SHOWN ABOVE THAT R~STITUTION HAS! BEEN ORDERED BUT THE
COURT DETERMINES THAT THE INCLUSION OF THE VICTIM,.S NAME AND ADORES~ IN THE
JUDGMENT IS NOT IN THE BEST INTEREST OF THE VICTIM THE PERSON .OR AGENCY
WHOSE NAME AND ADDRESS IS SET. OUT IN THIS ~UDGMENT WfLL ACCEPT AND FORWARD THE
RESTITUTION PAYMENTS TO THE VICTIM. .
AND WHEN IT IS SHOWN BELOW' ·.THAT PAYMENT OF THE COSTS OF LEGAL
SERVICES PROVIDED TO THE DEFENDANT IN THIS CAUSE HAS BEEN ORDERED · THE COURT
FINDS THAT'THE DEFENDANT HAS THE FINANCIAL RESOURCES TO ENABLE TH~'DEFENDANT TO
OrFSET-, SAID COSTS IN T!-!E. AMOUNT ORDERED • . . - ~ ~.-
! .
ANYTHING
THEREUPON THE SAID DEFENDANT WAS ASKED BY THE COURt -~HETHER HE HAD;
TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIMt AND HE'·,
ANSWERED NOTHING IN BAR THEREOF AND IT APPEARING TO THE COURT HAT THE·,
DEFENDANT IS MENTALLY COMPETENT AND UNDERSTANDING OF THE PROCEEDINGS~ THE COURT
PROCEEDED IN THE PRESENCE OF THE DEFENDANT AND HIS ATTORNEY Tu PRONOUNCE ;
SENTENCE AGAINST THE DEFENDANT. .
·... ·. IT IS, THEREFORE, ORDERED · AD~UDGED AND DECREED BY· THE COURT THAT \
3AID .JUDGMENT ·AS SET FORTH ABOVE iS HEREBY IN .ALL THINGS APPROVED AND -\.
:ONFIRMED.1.. AND THAT SAID DEFENDANT BE: ADJUDGED GUILTY OF THE OFFENSE AS SHOWN
~BOVE.2, ANu THAT SAID DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OFf.
=I NE uR' BOTH AS SET FORTH .ABOVE AND SHALL BE CONFINED FOR THE · ABOVE NAMED ·· -·
rERM IN ACCO~DANCE WITH THE PROV f S IONS OF LAW GOVERNING SUCH PUNISHMENTS. IT ..
£S FURTHER ORDERED THAT THE DEFENDANT PAY THE FINE~ UNLESS PAYMENT OF T~E FINE
~AS BEENPROBATED, AS SHOWN ABOVE.1.. COURT COSTS, CO~TS AND EXPENSES OF LEGAL ,
3ERVICES PROVIDED BY THE COURT AP,...OINTEOATTORNEY IN THIS CAUSE, IF ANY; AND
~ESTlTUTION OR R,EPARATION AS SET FORTH HEREIN. .. . .
. IT FIIRTHER APPE'AR I NG TO THE COURT THAT THE BEST I NTEBESI OF I Hi:
)UBLIC AND THE DEFENDANT WILL BE SERVED BY THE SUSPENSION OF T~E IMPOSITION 0~
;ENTENCE HEREI~; •
. ·;
I
I
I
;.:.
----j- --~~-~ •
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-~
• · EXHIBIT ~ ') i 1
NO F-9573890-NL
· · ·. .· . · ·
. ..(··. ·. · . ·. · ... ·. ·:±t·llb\ .· -,_
. IT. :IS 'FURTHER~ORDERED, ADJUDGED AND DECR':l;;~D BY THE COURT THAT THE
IMP.OSITJ.DN OF SENTENCE HEREIN IS HEREBY SUSPENDED FOR A PERIOD OF TIME AS. SHOWN·
ABOVE~ THE FINE IMPOSED.l. IF ANY.z. IS TO BE PAID OR PROBATED AS SHOWN· ABOVE. THE.
DEFENDANT IS HEREBY··PLALED ON CuMMUNITY SUPERVISION FOR A PERIOD OF . TIME AS.
SHOWN·ABOVE SUBJECT TO THE TERMS AND CONDITIONS OF COMMUNITY SUPERVISION THIS·
DATE. IMPOSED BY LAW .AND BY· THE 'COURT AND· SERVED UPON THE DEFENDANT. ~·r- ·
... '
...·· ·. CONDITIONS OF COMMUNITY SUPERVISION ARE ATTACHED. HE.RE. TO~.ND ARE
INCDRPO~ATED FOR .ALL PURPOSES AS .A PART OF THIS .JUDGMENT. . •. f~ · . .
.· .. ·. . FOLLOWING THE DISPOSITION OF THIS CAUSE THE 0
WAS,' IN OPEN COURTf PLACEP UPON. A CERTIFICATE OF
IS ATTACHED HERE 0 AND IS INCORPORATED BY CE
FIN~E;\SR~,~l ~~
t ·-~ ...
NO. F-957~890-NL
"HE STATE OF TEXAS IN THE CRIMINA( riiSTRICT
IS. COURT 5
IILTON VERAN WILLIAMS DALLAS COUNTY,'.TEXAS .
'
.JUDGMENT COMMUNITY SUPERVISION
. PLEA OF GUILTY ORNOLO CONTENDERE
.JURY WAIVED
.JULY TERM, A.D., 1995
UDGS:PRESIDING: MANNY ALVAREZ DATE OF .JUDGMENT: 07/24/9S
TTORNEY ATTORNEY . .
OR STATE: . MALCOM HARDEN fOR DEFENDANT: SCALA BYERS.· \:,
--'--',--'--------------- -·--·-----------------------------·
FFENSE·.
DNV I. CTED OF: THEFT OF;PROPERTY. OF. THE VALUE OF $1,500
LESS THAN $20,000 ~.-FR~~UT
DEGREE: STATE .JAIL
~r ~'~
CCi~~D: : 04/07/95
.
-!ARGlNG
~STRUMENT: INDICTMENT
~RMS OF PLEA BARGAIN
rN DETAIL): · · 1 YEAR STATE .JAIL PRO~ATED 3 YEARS, FINE $~:00
_EA TO ENHANCEMENT ·.FINDINGS ON
'RAGRAPH~ N/A .ENHANCEMENT: N/A
:NDINGS ON
lEADL Y WEAPON NO FINDING
liAS.·OR PRE.JU6ICE,
IND/OR ·
:AMILY. VIOLENCE:
---.,-----------------....._.
•TC" qc:-.;f,.r.:-"-rrr.
___________________ ..,_., .·
~ '
1F-ostrh ...... COSTS: ·YES . ·.· :=·.\
NISHMENT AND
ACE OF . 1 YEARS ,
NFINEMENT:. CONFINEMENT IN THE STATE . .JAIL DIVISION
OF THE TEXAS DEPARTMENT .OF CRIMINAL .JUSTICE
AND A FINE OF $300.00
----'-----------------_,.;....,------------.,---------- :' . ·.·
RIOD .OF SUPERVISION: 3 YEARS DATE TO COMMENCE: 07/24/95 "
I\IE PROBATED: NO RESTiTUTION/REPARATt.ON: NO
\/CURRENT UNLESS OTHERWISE SPECIFIED. •
: .. ..':·
··:: ·..
··.·· ..... :.
. . ON THIS DA.Y SET FORTH ABOVE THE ABOVE STYLED AND NUMBERED CAUSE CAME
TRIAL. THE STAtE OF TEXASAND DEFENDANT APPEARED BY AND THROUGH THE ABOVE •'::··_.;:·._.
··. ,··
··. ·.·
... I'
VOL. 339 PAGE.122
--- - ----- ------·- -----·,--. -
·....... ~-··
1. l':H. ~:; ? ~l~~~;;~,t~;~~:~:x·;~:-r.~:;.; .·
··-•·· . . -···:,·--·:.-~t!tt~';~t~'~..~:--- . .~ :~f-1 '
.-_-·,
. , _.___ .....,.. , . . . ___ ..,,____
·~---: " U.S. v. Stallings, 301 F.3d 919 (8th Cir.(Neb.) Aug 23, 2002) (NO. 01-3800)
Citing References: limited to Tenth Circuit Ct. App., New Mexico, Other Court, selected document
types
Positive Cases (U.S.A.)
** Cited
C 1 U.S. v~ Sierra-Estrada, 248 F~1 Appx. 973, 987 (lOth Cir.(Utah) Oct 01, 2007) (Table, text in
· WESTLAW, NO. 05-4086, 05-4117) "HN: 3 (F3d)
H 2 U.S. v. Alvarado, 458 F. Supp. 2d 1266, 1268+ (D.N.M. Jul20, 2006) (NO. CR 05 377 BB) HN: 3
(F3d)
\ ..
© 2009 Thomson Reuters. All rights reserved.
...
'
Page 2 of7
westikw
301 F.3d 919 Page 1
301 F.3d919
(Cite as: 301 F.3d 919)
ant ample time to go to trial, and to plan his trial
United States Court of Appeals, strategy with full knowledge of the consequences of
Eighth Circuit. a potential guilty verdict. Comprehensive Drug Ab-
UNITED STATES of America, Appellee, use Prevention and Control Act of 1970, §
v. 411(a)(1), 21 U.S.C.A. § 851(a)(1).
Pablo STALLINGS, Appellant.
No. 01-3800. [2) Sentencing and Punishment 350H ~1361
Submitted: May 13, 2002. 350H Sentencing and Punishment
Filed: Aug. 23, 2002. 350HVI Habitual and Can{er Offenders
350HVI(K) Proceedings
Defendant was convicted in the United States Dis- 350Hkl361 k. Notice of Intent to Seek
trict Court for the District of Nebraska, Lyle E. Enhancement. Most Cited Cases
Strom, J., of conspiracy to possess with intent to Defendant received timely notice of government's
distribute cocaine base. De~endant appealed. The intent to seek sentencing enhancement based upon
Court of Appeals, Melloy, Circuit Judge, held that: defendant's prior convictions, pursuant to notice
(1) defendant received timely notice of govern- and procedural requirements of statute allowing
ment's intent to seek sentencing enhancement based such enhancement, in prosecution for conspiracy to
upon defendant's prior convictions; (2) prior felony possess with intent to distnbute cocaine base,
drug conviction could not be used to enhance de- where government filed its notice a few days prior
fendant's sentence; and (3) evidence was sufficient to the commencement of defendant's trial. Compre-
to support conviction. hensive Drug Abuse Prevention and Control Act of
1970, § 411(a)(1), 21 U.S.C.A. § 851(a)(i).
Affirmed in part, reversed in part, and remanded for
resentencing. [3] Sentencing and Punishment 350H €:::=:>1330
West Headnotes 350H Sentencing and Punishment .
350HVI Habitual and Career Offenders
[1] Sentencing and Punishment 350H €:::=:>1366 350HVI(I) Subsequent <::;ircumstances Af-
fecting Prior Adjudication
· 350H Sentencing and Punishment 350Hkl330 k. In General. Most Cited
350HVI Habitual and Career Offenders
350HVI(K) Proceedings Sentencing and Punishment 350H €=:>1338
350Hkl363 Recidivist or Ha\titual Of-
fender Charge ! 350H Sentencing and Punishment
350Hkl366 k. Time for Filing or Insti- 350HVI Habitual and Career Offenders
tuting Proceedings. Most Cited Cases 350HVI(I) Subsequent Circumstances Af-
To satisfy the procedural and notice requirements fecting Prior Adjudication
of filing an information for purpose of sentencing 350Hkl338 k. Matters Related to Sen-
enhancement based upon defendant's prior convic- tence. Most Cited Cases
tions, the government must file its information be- Prior felony drug conviction could not be. used to
fore jury selection begins, thus allowing the defend- enhance defendant's sentence for corispiracy to pos-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
n , •• n re, ......,.....,.... ...,. ............. ,...
Page 3 of7
301 F.3d 919 Page2
301 F.3d 919
(Cite· as: 301 F.3d 919)
sess with intent to distribute cocaine base, where 110kl144.13(3) k. Construction
prior conviction was never properly entered against in Favor of Government, State, or Prosecution.
defendant; although defendant enter~d plea of nolo Most Cited Cases
contendere in California state court to prior offense,
sentencing documents showed that he was sen- . Criminal Law 110 ~1144.13(5)
tenced to probation, but imposition of sentence was
suspended, and his probation was not revoked, .pre- 110 Criminal Law
cluding entry of judgment against defendant under 11 OXXN Review
California law. Comprehensive Drug Abuse Pre- llOJCXIV(M) Presumptions
vention and Control Act of 1970, § 411(a)(1), 21 110k1144 Facts or Proceedings Not
U.S.C.A. § 85l(a)(1); West's Ann.Cal.Penal Code § Shown by Record
1203.2. ;; . . 11 Okl144 .13 Sufficiency of Evidence
. 110k1144.13{5) k. Inferences or
[4} Sentencing and Punishment 350H ~4SO. Deductions from Evidence. Most Cited Cases
The Court of Appeals reviews sufficiency of the
350H Sentencing and Punishment evidence challenges in the light most favorable to
350HII Sentencing Proceedings in General the verdict, giving the government the benefit of all
350HII(J) Stay of Execution of Sentence reasonable inferences.
350Hk480 k. Effect. Most Cited Cases
[6] Conspiracy 91 ~47{12)
Sentencing and Punishment 350H ~1931
91 Conspiracy
350H Sentencing and Punishment 91II Criminal Responsibility
350HIX Probation and Related Dispositions 91II(B) Prosecution
350HIX(F) Disposition of Offender 91k44 Evidence
· 350Hk1931 k. Probation Without Sen- 91k47 Weight and Sufficiency
tence. Most Cited Cases 9lk47(3) Particular Conspiracies
Under California law, when a sentencing court 9lk47(12) k. Narcotics and Dan-
· grants probation after a conviction, it may suspend gerous Drugs. Most Cited Cases
the imposition of sentence, in which case no judg- Evidence was sufficient to support defendant's con-
ment of conviction is rendered, or it may ·impose viction for conspiracy to possess with intent to dis-
sentence and order its .execution: to be stayed, in tribute cocaine base; witnesses testified that defend-
which case a judgment· of conviction is rendered. ant shipped cocaine through the mail and arranged
West's Ann.Cal.Penal Code§ 1203.2. for others to deliver cocaine base on his behalf,
wiretap evidence liiiked defendant with admitted
[5] Criminal Law 110 €=:>'1144.13(3) drug .distributo.J;S, and physical evidence admitted
i included scales, razors, and large amount of cash
i
110 Criminal Law i, seized from storage locker rented to defendant.
11 OXXN Review Comprehensive Drug Abuse Prevention and Con-
11 OXXN(M) Presumptions trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
11 Okll44 Facts or Proceedings Not
Shown by Record [7] Courts 106 ~90(2)
110kl144.13 Sufficiency of Evidence
110kll44.13(2) Construction of 106 Courts
Evidence 106II Establishment, Organization, and Proced-
© 2009 Thomson Reuters/West No Claim to Orig. US Gov. Works.
.··.
Pag~ 3 of7
301 F.3d 919 Page2
301 F.3d 919
(Cite as: 301 F.3d 919)
sess with intent to distribute cocaine base, where . 110k1144.13(3) k. Construction
prior conviction was never properly entered against in Favor of Government, State, or Prosecution.
defendant; although defendant entered plea of nolo Most Cited Cases
contendere in California state court to prior offense,
sentencing documents showed that he was sen- Criminal Law 110 €=>1144.13(5)
tenced to probation, but imposition of sentence was
suspended, and his probation was not revoked, .pre- 110 Criminal Law
cluding entry of judgment against defendant under 11 OXXN Review
California law. Comprehensive Drug Abuse Pre- 11 OXXN (M) Presumptions
vention and Control Act of 1970, § 411(a)(l), 21 110k1144 Facts or Proceedings Not
U.S.C.A. § 851(a)(l); West's Ann.Cal.Penal Code § Shown by Record
1203.2. : . . . . 11 Ok1144 .13 Sufficiency of Evidence
. 110kll44.13(5) k. Inferences or
[4} Sentencilig and Punishment 350H €=>4SO. ·· Deductions from Evidence. Most Cited Cases
The Court of Appeals reviews sufficiency of the
350H Sentencing and Punishment evidence challenges in the light most favorable to
350Hll Sentencing Proceedings in General the verdict, giving the government the benefit of all
350HII(J) Stay of Execution of Sentence reasonable inferences.
350Hk480 k. Effect. Most Cited Cases
[6] Conspiracy 91 €=>47(12)
Sentencing and Punishment 350H €=>1931
91 Conspiracy
350H Sentencing and Punishment 91II Criminal Responsibility
350HIX Probation and Related Dispositions 91II(B) Prosecution
350HIX(F) Disposition of Offender 91k44 Evidence
350Hk1931 k. Probation Without Sen- 91k47 Weight and Sufficiency
tence. Most Cited Cases 9lk47(3) Particular Conspiracies
Under California law, when a sentencing court 91k47(12) k Narcotics and Dan-
· grants probation after a conviction., it may suspend gerous Drugs. Most Cited Cases
the imposition of sentence, in which case no judg- Evidence was sufficient to support defendant's con-
ment of conviction is rendered, or it may ·impose viction for conspiracy to possess with intent to dis-
sentence and order its execution: to be stayed, in tribute cocaine base; witnesses testified that defend-
which case a judgment· of conviction is rendered. ant· shipped cocaine through the mail and arranged
West's Ann.Cal.Penal Code § 1203.2. for others to deliver cocaine base on his behalf,
wiretap evidence linked defendant with admitted
[5] Criminal Law 110 €;::;;::>1144.13(3) drug .distributors, and physical evidence admitted
f
I included scales, razors, and large amount of cash
110 Criminal Law \ seized from storage locker rented to defendant.
11 OXXN Review Comprehensive Drug Abuse Prevention and Con-
llOXXN(M) Presumptions trol Act of 1970, § 40l{b), 21 U.S.C.A. § 841(b).
110kl144 Facts or Proceedings Not
Shown by Record [7] Courts 106 €=>90(2)
11 Okl144 .13 Sufficiency of Evidence
110kl144.13(2) Construction of 106 Courts
Evidence 106II Establishment, Organization., and Proced-
© 2009 Thomson Reuters/West No Claim to Orig. US Gov. Works.
Page 4 of7
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301 F.3d 919
(Cite as: 301 F.3d 919)
ure Cir.2000). We first consider the .procedural and no-
106II(G) Rules of Decision tice challenges to the § 85l(a) information. A pre-
106k88 Previous Decisions as Controlling requisite for sentence enhancement under 21 U.S.C.
or as Precedents § 841 (b) is a timely filed information detailing the
106k90 Decisions of Same Court or prior convictions the government intends to rely
Co-Ordinate Court upon for sentence enhancement. See21 U.S.C. §
106k90(2) k. Number of Judges 85l(a)(l). To satisfy the procedural and notice re-
Concurring in Opinion, and Opinion by Divided quirements of the § 851(a) information, "the gov-
Court. Most Cited Cases ernment must file its information before jury selec-
Only the Court of Appeals en bane can overrule an tion begins, thus allowing the defendant 'ample
earlier panel decision. time [...] to go to trial, and to plan his trial strategy
*920 Michael T. Levy, argued, Omaha, NE, for ap- with full knowledge of the consequences of a po-
pellant. tential guilty verdict.' " *921United States v.
Robinson, 110 F.3d 1320, 1327-28 (8th Cir.1997)
Maria R Moran, argued, Omaha, NE, for appellee. (quoting United States v. Johnson, 944 F.2d 396,
407 (8th Cir.l991)). The government filed the §
85l(a) information on Friday, July 13, 2001.
Before McMILLIAN, FAGG, and MELLOY, Cir- Stallings's trial commenced on Tuesday, July 17,
cuit Judges. 2001. Stallings's procedural contentions are without
merit. Stallings received timely notice of the gov-
ernment's intent to seek the § 851(a) enhancement
MELLOY, Circuit Judge. before trial and had an opportunity to challenge the
convictions before the sentence was imposed. 21
Pablo Stallings was convicted of conspiracy to pos- U.S.C. § 85l(b), (c); see also Robinson, 110 F.3d at
sess with intent to distribute cocaine base. The gov- 1328 (filing of information minutes before voir dire
ernment filed an information seeking to enhance satisfiedrequirements of§ 851(a)(l)).
Stallings's sentence to life imprisonment The dis-
trict court, relying upon the convictions set out in [3] Stallings contends the government failed to
the notice, imposed the enhancement and sentenced prove the two prior convictions beyond a reason-
Stallings to life imprisonment. Stallings now ap- able doubt. The two predicate convictions offered
peals his conviction and sentence. We affirm the by the government for enhancement purposes were
conviction but reverse and remand the sentence im- a 1993 California conviction and a 1987 Nevada
posed. conviction. At sentencing, defense counsel entered
a valid objection to the prior convictions on the
basis of "identity, relevance, and foundation." .
I. Therefore, under 21 U.S.C. § 85l(c)(l), the govern-
( ment had the burden to prove the two prior felony
[1][2] Stallings challenges his enhance\f sentence drug convictions beyond a reasonable doubt.
contending the procedure and notice were defective Stallings does not challenge on appeal .the use of
and the .two .prior felo~y convictions. were not the 1987 Nevada conviction. However, he raises a
proved beyond a reasonable doubt. "Because resol- variety of challenges to the use of the 1993 Califor-
ution of this claim requires us to intetpret the stat- nia conviction. Based upon the record, .we conclude
ute, we review de novo the district court's use of the judgment was never properly entered against.
two prior convictions for enhancement purposes."
United States v. Johnston, 220 F.3d 857, 860 (8th
/
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Page 5 of7
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Stallings in connection with the California convic- prosecuted in the United States District
tion, and, consequently, reliance on that convictiOn Court for the District of Oregon.
for purposes of 21 U.S.C. § 84l(b)(l)(A)(viii) sen-
tence enhancement was improper.FNl The fmal disposition of the California conviction
resulted in Stallings receiving probation with the
FNl. Stallings made a valid objection at imposition of sentence suspended. Although proba-
sentencing to his California conviction. tion revocation proceedings were commenced by
The grounds relied upon in this opinion to the probation office, the California court neither re~
invalidate the sentence were raised through voked probation nor did it pronounce judgment.
questioning by Judge McMillian at oral ar- SeeCal.Peilal Code § 1203.2(b); see also
gument. The parties were then given the *922People v. Smith, 12 Cal. App. 3d 621, 90
opportunity to file supplemental briefs on Cal.Rptr. 811, 814 (1970) ("It is equally clear that
the issue of whether there was ever a judg- probation was revoked .. . and a bench warrant was
ment entered by the California courts. The issued so that judgment and sentence could be im-
court is now in receipt of the supplemental posed, imposition Thereof having been suspended
hriefmg on that issue. approximately three years earlier.... "). If imposition
of sentence was suspended, and probation was nev-
At the sentencing hearing, the government intro- er revoked, then there is no judgment entered
duced a number of exhibits in an attempt to prove against the defendant. As explained in an early
up the California conviction. These exhibits show California Supreme Court case:
that the defendant was charged with felony posses-
sion for sale of cocaine base in violation of section When judgment is not pronounced and further pro-
11351.5 of the Health and Safety Code of Califor- ceedings are suspended, there is no judgment
nia. The defendant entered ~iea of nolo CQ!l- against [the defendant]. His activities are limited
tendere. He was sentenced to three years probatio~, only by the terms of the probationary order, un-
subject to the serving of 78 days in the county jail, der the supervision of the probation officer. Upon
a.rui.urdered to pay restitution and court costs. The revocation of probation the defendant is entitled
. sentencing documents also show that "imposition of to a hearing and to be sentenced, before he can be
sentence was suspended." Subsequently, a revoc!t- committed to the appropriate institution.
tion of probation proceeding was commenced in the
Superior Court of California, County of Alameda. Stephens v. Toomey, 51 Cal. 2d 864, 338 P.2d 182,
However, the record made at the sentencing hearllig. 187 (1959) (citation omitted); see also People v.
s;. indicates no further action was taken on the Califor- Pennington, 213 Cal. App. 3d 173, 261 Cal.Rptr.
. nia probation officer's revocation recommendation.. 476, 478 (1989) ("Where no sentence is imposed at
The remaining reference to the California convic- the time probation is granted, a subsequent decision
tion is in an Oregon Presentence Report, introduced terminating probation requires that judgment be
into evidence at the sentencing hearing, which pronounced."(citing Cal.Penal Code § 1203.2, subd.
states that California "revocation proceedings are (c))); United States v. Qualls, 108 F.3d 1019, 1023
unlikely given Stallings's conviction · in . Federal (9th Cir.1997) ("There is no 'judgment pending
Court." FN2 against a probationer when the court withholds im-
position of judgment and suspends further proceed-
FN2. The referenced federal court convic- ings. Because the California court granted [the de-
tion is a 1995 conviction for Interstate fendant] probation and suspended further proceed-
Travel in Aid of a Crime of Racketeering ings, [the defendant] does not have a fmal or
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
n -·---·c-, .. 1 ~J... n ____ _.li_TT'"r.,._ KT D 0 ... +-- ~'"'- Jlr~-h,......-1\.TA
Page 6 of7
~~~EN D1)( /
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(Cite as: 301 F.3d 919)
pending judgment against him in Califor- [5] [6] S.tallings also contends the evidence was in-
nia."(intemal citations omitted)), a.ff'd en bane, 140 sufficient to support his conviction. We review suf-
F.3d 824,vacated and remanded, 525 U.S. 957, 119 ficiency of the evidence challenges in the light most
S.Ct. 398, 142 L.Ed.2d 323,rev'd on other grounds, favorable to the verdict, giving the government*923
172 F.3d 1136. the benefit of all reasonable inferences. United
States v. Calderin-Rodriguez, 244 F.3d 977, 983
[4] In United States v. Robinson. 967 F.2d 287 (9th (8th Cir.2001). Under this standard, we fmd
<;_ir:J92~ ,_ the__ ~_ipth_ <;i!:_~.!!.i:!....f2!!~luqed
that under Stallings's contentions without merit.. Witnesses
Califumia law a~ation on:ler._j.s.____n.Qt__J testified that Stallings shipped cocaine through the·
':jlldgment" when the imgosition of sentence is sus~ mail and arranged for others to deliver crack on his
pended. See id. at 293, The Ninth Circuit noted that behalf. The government also introduced wiretap
California law provides: "[W]hen a sentencing evidence linking Stallings with admitted drug dis-
court grants probation after a conviction, it may tributors and physical evidence including two
suspend the imposition of sentence, in which case scales, an Exacto knife, a razor, and a large amount
no judgment of conviction is reild<:red, or it may of cash seized from a storage locker rented to
impose sentence and order its execution to be Stallings. Stallings contends that the drug dealers
stayed. In _t:Jle latter case only, a judgment of con- testifying against him were motivated to reduce
viction is rendered." Id. (citing People v. Arguello, their sentences through cooperation with the gov-
59 Cal. 2d 475, 30 Cal. Rptr. 333, 381 P.2d 5, 6 ernment. Issues of witness credibility and bias,
(1963)); see also United States v. Haggerty, 85 F.3d however, were resolved by the jury and we do not
403, 406 (8th Cir.1996) (citing Robinson for the reconsider these issues·on appeal.Jd. at 988.
proposition that a probation order is not a judg-
ment). In Stallings's case, there was no judgment of
conviction entered and the appropriate time for re- ill.
voking his probation arid entering judgment has
lapsed. See Cal.Penal Code § 1203.3(a) ("The court [7] Finally, Stallings contends that the sentencing
shall have authority at any time during the term of disparity between crack cocaine and powder co-
probation to revoke, modify, or change its order of caine crimes violates the Due Process Clause. This
suspension of imposition or execution of sen- argument has been repeatedly considered and rejec-
tence .... "); see also In re Perez, 65 Cal. 2d 224, 53 ted by this court. See United States v. Johnson, 108
Cal.Rptr. 414,418 P.2d 6, 11 (1966) ("If probation F.3d 919, 922 (8th Cir.1997) (citing United States
was timely revoked, judgment could be imposed at v. Carter, 91 F.3d 1196 (8th Cir.1996); U1~ited
any time thereafter."); $mith, 90 Cal. Rptr. at 814 States v. Smith, 82 F.3d 241, 244 (8th Cir.1996),
(':It is also settled that an order revokin.JLE!obation, cert. denied, 519 U.S. 856, 117 S. Ct. 154, 136
to_b_e_yalid,_ml~stl>.§_m_ade within thueriod fixed in L.Ed.2d 99 (1996)). Only the court en bane can
tbe order of _Q!'obation. If not revoked within that overrule an earlier panel decision. United States v.
period, the probation termiilates automatically on_ Riza, 267 F.3d 757, 760 (8th Cir.2001).
the last-.d!!~:'). Accordingly, no valid judgment has
been entered against Stallings and, therefore, the Accordingly, we affirm the conviction, and remand ·
enhanced sentence imposed in reliance upon the for re-sentencing.
California conviction was improper.
C.A.8 (Neb.),2002.
U.S. v. Stallings
II. 301 F.3d 919
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