Williams, Milton Veran ( 2015 )

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WRIT NO. W 1C::1JfftJ(fiJ
·Ex PARTE IN THE CRIMINAL.
DISTRICT COURT NO. ~ OF
DALLAS COUNTY I. TEXAS
ORDER DESIGNATING ISSUES
.. I
Having reviewed the Applicant's Application for Wrlt of Habegs_
Corpus, the Court finds ·that the-re are controverted, previously
unresolved issues of fact which arematerial to the legality of the
Applicant's confinemen~.
_The Court appoints fRED C. MCDANIEL to resolve the issues and
.. ··· .·
prepare findings of fact and conclusions of law for the Court. The
issues may be resolved by affioavits, depositions, interrogations,
hearings and/or personal ~ecollection .
...
.·
The Clerk of the Court is ORDERED to send a copy of.this order
·. to the Court of Criminal Appeals, Applicant, or Applican-t'_s counsel
if the Applicant is represented by counsel, and to counsel for the
-1-
·-state.
SIGNED AND ENTERED this day of. ;~ I 200L •
iE STATE.OF TEXAS
:JUNTY OF OAL:.f.\S
i. Jim H::.Jn;I:lf C~2trict C!erk of
.. ~·~
. ··
~H2s Cou;;ty~ ·-r(S{~;sr dr- ho.:-eby certify
:i! Utf~ frsrr;r}~~b:~--~ ~-~ c~ t1.1:: (:.r~a correct
~i='Y ~ th:·:..:>::-;rr;_r.! 2~:·;:2.::::::: 0n n~cord now
1 fib in rh:r r±':f,::Gl. ·
ms:z '"\' d:tJ/)I/'fffz cf
.__ .__ .:..: ,: ;. -. ------~-,<----
.;ca, t.h::J,. _ · _ ·j_ .·.
1
;~f/bi/.
'< /. . EXHIBIT p :.#llf\) ·. '; ~0 F-9573890-NL
· -------.---.__
·NA1'1ED ATTORNEYS. AND ANNOUNCED READY FOR TRIAL. DEFENDANT APPEARED IN. PERSON IN.
OPEN: COURT. WHERE DEFENDANT ·wAS·NiJT REPRESENTED ·BY COUNSEL DEFENDANT
KNOWING~Y, INTELLIGENTLY!· AND VOLUNTARILY WAIVED THE RIGHT TO REPRESENTATION.
BY COUNSEL.· DEFENDANT N PERSON AND IN WRITING IN OPEN COURT WAIVED HIS.
RIGHT OF TRIAL BY ~URY WITH THE CONSENT AND APPROVAL OF HIS .ATTORNEY THE .
ATTORNEY. FOR THE STATE AND THE COURT.· . WHERE SHOWN ABOVE THAT . THE CHARGING
-.INSTRUMENT WAS BY INFORMATION INSTEAD OF l:NOICTMENTf THE. DEFENDANT DIDt WITH
THE CONSENT AND APPROVAL OF HIS ATTORNEY WAIVE H S RIGHT TO PROSECU ION BY
INDICTMENT AND AGREE TO BE TRIED ON AN INFORMATION. ALL SUCH WAIVERS
AGREEMENTS AND CONSENTS WERE IN WRITING AND FILED IN THE PAPERS OF THIS CAUS~
PRIOR'TO THE DEFENDANT ENTERING HIS PLEA HEREIN. rTHE DEFENDANT WAS DULY
ARRAINGED AND IN OPEN COURT ENTERED THE ·ABOVE PLEA TO THE CHARGE CONTAINED IN
THE CHARGING INSTRU1'1ENT. DEFENDANT WAS ADMONISHED BY THE·. COURT OF THE
CONSEQUENCES OF SAID PLEA AND DEFENDANT PERSISTED IN ENTERING SAID PLEA, AND IT
PLAINLY APPEARING TO THE COURT THAT DEFENDANT IS 1'1ENTALLY COMPETENT AND "SAID·,
PLEA .IS'FREE AND VOLUNTARY THE SAID PLEA WAS ACCEPTED BY THE COURT AND IS NOW
ENTEF , 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{S) ALLEGED IN THE SAID ENHANCEMENT '!
PARAGRAPH(S) AS MAY BE SHOWN ABOVE. .
AND WHEN SHOWN ABOVE THAT THERE WAS A PLEA BARGAIN AGREEMENT," THE . i
I
DEFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD FOLLOW OR RE~ECT SUCH
AGREEMENT AND IF THE COURT REJECTED 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 RESTITUTION HAS' BEEN ORDERED BUT THE
COURT DETERMINES THAT THE INCLUSION OF·THE VICTIM"'S NAME AND ADORES~ IN THE
~UDGMENT 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 THE'DEFENDANT TO
OFFSET, SAID COSTS IN T!-·!E AMOUNT ORDERED" . . .
( . THEREUPON THE SAID DEFENDANT WAS ASKED BY THE COURt ~HETHER HE HAD:
ANYTHING 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.z. THE COURT\
PROCEEDED IN THE PRESENCE OF THE DEFENDANT AND HIS ATTORNEY Tu PRONOUNCE ~
SENTENCE AGAINST THE DEFENDANT. . .
. .\
·... ·.· IT IS, THEREFORE, ORDERED. , ADJUDGED AND DECREED BY· THE COURT THAT \
3AID ~UDGMENT ·AS SET FORTH ABOVE · fs HEREBY IN .ALL THINGS APPROVED AND ·'..
:ONFIRMED.z. AND THAT SAID DEFENDANT BE: AD~UDGED GUILTY OF THE OFFENSE AS SHOWN
~BOVE.J. ANu THAT SAID DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT or~·. .
=I NE uR' BOTH AS SET FORTH .ABOVE AND SHALL BE CONFINED FOR THE · ABOVE NAMED .. •. ·. ·•
rERM IN ACCORDANCE WITH THE PROViSIONS OF LAW GOVERNING SUCH PUNISHMENTS. IT ... ·.
[S FURTHER ORDERED THAT THE DEFENDANT PAY THE FINE.z. UNLESS PAYMENT OF T~E FINE
..,AS BEEN. PROBATED AS SHOWN ABOVE COURT COSTS CO::;TS AND EXPENSES OF LEGAL .· .. ·•
3ERVI.CES PROVIDED 'BY THE COURT APPOINTED ATTORNEY IN. THIS CAUSE, IF ANY, AND .. ',
~ESTITUTION OR R.EPARATION AS SET FORTH HEREIN. .. . . ~ ·
.. . li FIIRTHER APPE'AR I NG TO THE COURT THAT' THE BEST I NTERE!:Lt OF TI:-Ji:
)UBLIC AND THE DEFENDANT WILL BE SERVED· BY THE SUSPENSION OF THE IMPOSITION DE.··.
3ENTFNCE HERE I IS[; •
... ~ ...
, ..
.
,.
(•
-~ ---~--·-- -·--~--------
--~----=- ------·--
_,.. -.._, . . · c_) NO F- 9573890-NL . . . EXHIBiT ..·.·--- :it 1l~o)
. I -,)
, IT ·IS FURTHER ORDERED, ADJUDGED AND DEC~:~D BY THE COURT THAT THE .
IMP.OSlTJ.ON OF SENTENCE HEREIN IS HEREBY SUSPENDED FOR A PERIOD OF TIME AS SHOWN
ABOVE. THE FINE IMPOSED.z. 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. .~ ·
·i\ ·.
.·. ~
... ·. CONDITIONS OF. COMMUNITY SUPERVISION ARE ATTACHED HE.RETO~ND ARE
INCORPORATED FOR ALL PURPOSES AS .A PART OF THIS JUDGMENT. .•
WAS~' IN OPEN COURTt PLACED UPON. A CERTIFICATE OF FING!ie~~~l .J\:~
:. • •
IS ATTACHED
· FOLLOWING THE DISPOSITION OF. THIS CAUSE THE
HERE 0 AND ·IS INCORPORATED BY
!Qt,A "S · I
CE· 1 \.~.I·~~ART
RPRINT ..
ERTIFICATE .
. OF ·THIS : bCWo
JUDGMENT. . · · · . . .. · /
.· ·. ·· . A PRESENTENCE INVESTIGATION
APPLICABLE PROVISIONS OF LAW. • .·.. ·
WAS~D
; ~
.· D IN ACCORDANCE WITH'
· ·.
THE .·
·
COURT COSTS IN THE.AMOUNT OF $124.50
. '
.·.f
. ·,·,
'" !
.JUDGE PRESIDING
: ....
. ... _.,· .
.. - · - . ---------· -·
• ...... 'J•
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"UI"\1'1 .l- ) S"J:.ATE····.JAIL
:REV~ 9'7/01/94) ~·...:·.';_·,..··
..... -·
NO. F-9573890-NL
IN THE CRIMIN~L riiSTRICT '.
"HE STATE OF TEXAS
IS. COURT 5
IILTON VERAN WILLIAMS DALLAS COUNTY,'.TEXAS
.JUDGMENT - COMMUNITY SUPERVISION
PLEA OF GUILTY OR-NOLO CONTENDERE
.JURY .·.WAIVED
.JULY TERM A.D., 1995
7
UDGE 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
LESS THAN $20 7 000
·DEGREE: STATE .JAIL
-iARGING
~STRUMENT: INDICTMENT
:RMS OF PLEA BARGAIN
rN DETAIL>: · · 1 YEAR STATE .JAIL PROBATED
... 3 YEARS, FINE $300
_EA TO. ENHANCEMENT ·FINDINGS ON
~RAGRAPH ( S): N/A ·.ENHANCEMENT: N/A
:NDINGS ON
lEADL Y . WEAPON NO FINDING
liAS DR PRE.JU0ICE 7
IND/OR ·
:AMILY VIOLENCE:
·TC" .qc:-~!Tr=t..lf"'t:'
iPOSEo·: -· ·- .. ..07 /24/9§ COSTS: ·YES .·'·i
: ·...
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 ~F SUPERVISION: 3 YEARS DATE TO CDMMENGE: 07/24/95 .
I\IE PROBATED: NO REST±TUTION/REPARATtON: NO
:,,
\!CURRENT UNLESS OTHERWISE SPECIFIED •.•
ON THIS DA.Yt SET FORTH ABOVE THE·ABOVE STYLED AND NUMBERED CAUSE CAME
TRIAL. THE STA E OF TEXAS AND DEFEN.DANT APPEARED BY AND THROUGH THE ABOVE.·.. -'
:. ' .. .' . ..
VOL. 339 PAGE .122 .
.:,
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~{ t-\ 'I~ 1.1 *l\!\
OKLAHOMA INNOCENCE PROJECT
Oklahoma City University School of Law
May 27,2014
Milton Williams, #399375
Oklahoma State Penitentiary
P.O. Box 97
McAlester, OK 74502
Mr. Williams:
We have received your correspondence postmarked July 16, 2012. forwarded from the '
pffice of Craig Watkins, Criminal District Attorney of Dallas County, Texas. This letter is to
inform you that we cannot assist you with your legal matter. We receive numerous requests
for assistance and unfortunately are not able to help everyone. Under our guidelines, the
Oklahoma Innocence Project serves the state of Oklahoma for investigating and litigating claims
of actual innocence. >
Therefore, we are prohibited from providing materials or giving legal advice. For your
convenience, we have included some generalized information related to our case acceptance
criteria.
This does not mean that we believe you to be guilty. It simply means that we do not
have the resources to provide the assistance you are requesting. We wish you the best in your
endeavor for justice.
r
oma Innocence Project
TRM:jam
ENCLOSURE
2501 N. Blackwelder Ave., Oklahoma City, Oklahoma 73106-1493 · (405) 208-6161 ·Fax (405) 208-6171
. ·.-~· ·- ... -· ... ........... -·
~
... ·. Page 1 of7
Date ofPrinting: Aug 04, 2009
...
'(::- -··~- ..
KEYCITE
P 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~,Appx. 973, 987 (lOth Cir.(Utah) Oct 01, 2007) (Table, text in
VJESTLAW, NO. 05-4086, 05-4117)" HN: 3 (F3d)
if 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
westiaw
301 F.3d919 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. 4ll(a)(1), 21 U.S.C.A. § 85l(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 Care-;br 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 distribute 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, § 4ll(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 Circumstances 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!Jitual 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 putpose of sentencing 350Hk1338 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 conspiracy to pos-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
n 1•. n ,..., ,..-r,..,....... .--r ._ ...... ,...
Page 3 of7
301 F.3d 919 Page2
301 F.3d 919
(Cite as: 301 F.3d 919)
sess with intenf 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 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 OXXIV Review
California law. Comprehensive Drug Abuse Pre- 110XXIV(M) Presumptions
vention and Control Act of 1970, § 4ll(a)(1), 21 110k1144 Facts or Proceedings Not
U.S.C.A. § 851(a)(1); West's Ann.Cal.Penal Code § Shown by Record
1203.2. •' . . 110k1144.13 Sufficiency of Evidence
. 110kll44.13(5) k. Inferences or
[4} Sentencing and Punishment 3SOH ~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 3SOH ~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 91k47(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 liiiked defendant with admitted
[S] Criminal Law 110 €=:>1144.13(3) drug .distributoiJi, and physical evidence admitted
included scales, razors, and large amount of cash
110 Criminal Law seized from storage locker rented to defendant.
11 OXXIV Review Comprehensive Drug Abuse Prevention and Con-
110XXIV(M) Presumptions trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
110kll44 Facts or Proceedings Not
Shown by Record [7] Courts 106 ~90(2)
110kll44.13 Sufficiency ofEvidence
110kll44.13(2) Construction of 106 Courts
Evidence 106II Establishment, Organization, and Proced-
©'2009 Thomson Reuters/West No Claim to Orig. US Gov. Works.
.·-.
M PnJ~N...t.J-. 1 · · Pag~ 3 of7
Et\\1Jtrf ·. ;fl'o)
. .
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 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 OXXIV Review
California law. Comprehensive Drug Abuse Pre- IIOXXIV(M) Presumptions
vention and Control Act of 1970, § 411(a)(l), 21 110kl144 Facts or Proceedings Not
U.S.C.A. § 851(a)(1); West's Ann.Cal.Penal Code § Shown by Record
1203.2. : . . . . 110k1144.13 Sufficiency of Evidence
. 110kl144.13(5) k. Inferences or
[4} SentenciO.g 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) Prosecuti9n
350HJX(F) Disposition of Offender 91k44 Evidence
350Hkl931 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
included scales, razors, and large amount of cash
110 Criminal Law seized from storage locker rented to defendant.
11 OXXIV Review Comprehensive Drug Abuse Prevention and Con-
110XXIV(M) Presumptions trol Act of 1970, § 40l(b), 21 U.S.C.A. § 841(b).
110k1144 Facts or Proceedings Not
Shown by Record [7] Courts 106 ~90(2)
11 Ok1144 .13 Sufficiency of Evidence
110k1144.13(2) Construction of 106 Courts
Evidence I 06II Establishment, Organization, and Proced-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 4 of7
301 F.3d 919 Page3
301 F.3d 919
(Cite as: 301 F.3d 919)
ure Cir.2000). We first consider the procedural and no-
106II(G) Rules ofDecision tice challenges to the § 851(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 § 85l(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.l997)
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 Mc:MILLIAN, 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 § 85l(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. § 851(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§ 85l(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-
i
I
ment had the burden to prove the two prior felony
[1][2] Stallings challenges his enhance~ 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 interpret 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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1_.t...t.._.//____ ,_" _____ L1---- _____ / .... -: _,/,. -~ 4 4
Page 5 of7
301 F.3d 919 Page4
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(Cite as: 301 F.3d 919)
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.Pei:J.al Code § 1203.. 2(b ); see also
gument. The parties were then given the *922People v. Smith, 12 Cal. App. 3d 621, 90
opportunity to flle 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 mereof having been suspended
briefing 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:g,- against [the defendant]. His activities are limited
tendere. He was sentenced to three years probatioJ!, 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
and Qrdered 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 revoca- committed to the appropriate institution.
tion of probation proceeding was commenced in the
Superior Court of California, County of Alame~. Stephens v. Toomey, 51 Cal. 2d 864, 338 P.2d 182,
However, the record made at the sentencing hearing 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.l997) ("There is · no 'judgment pending
Court." FNz again.<:t 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.
Page 6 of7
301 F.3d 919 Page5
301 F.3d 919
(Cite as: 301 F.3d 919)
pending judgment against him in Califor- [5] [6] S.tallings also contends the evidence was in-
nia."(interna1 citations omitted)), aff'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:,l9._2_~,_ the__ tl'inth_G_i!:~!!J!__9Q!!cluqed
that under Stallings's contentions without merit.. Witnesses
Califumi_a law a____probation onie.t:__i.L__!!.Q1___a testified that Stallings shipped cocaine through the
·~~t" when the imposition of sentence is sus: mail and arranged for others to deliver crack on his
2ended. 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 rendered, 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 Jhe latter case only, a judgment of con- testifying against him were motivated to reduce
viction is rendered." !d. (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.l996) (citing Robinson for the reconsider these issues·on appeal. !d. 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, I 08
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.l996),
('~It is also settled that an order revoking E£Obation, cert. denied, 519 U.S. 856, 117 S. Ct. 154, 136
to_b.e..~alid,_m,l.).st_.b_iunade within th~eriod fixed in L.Ed.2d 99 (1996)). Only the court en bane can
the order of _Q!'obation. If not revoked-within that overrule an earlier panel decision. United States v.
perioc1.__!!le probation terminates automatically on Riza, 267 F.3d 757, 760 (8th Cir.2001).
the last dax,:'). 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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