ORDER
Defendant, who was convicted and sentenced in this court and is now incarcerated in the Federal Correctional Institute, Texarkana, Texas, moves fоr re-sentencing and reduction of sentence under Rule 35, Fed.R.Crim.P. At his trial in this court defendant entered a plea of not guilty, but he was convicted by a jury under 18 U.S.C. § 2312 (1970) and sentеnced to a term of four years’ imprisonment on March 3, 1972. The conviction was affirmed on appeal. United States v. Wendt,
Defendant alleges that in impоsing sentence this court gave consideration to, among other things, four previous state convictions which he contends are invalid under Gideon v. Wainwright,
The facts of Tucker are that in 1953 Tucker was tried in the United States District Court for the Northern District of California on a charge of armed bank robbery. He entered a plea of not guilty. During the trial, four witnesses identified him as the robber, but he took the stand to deny participation in the robbery and offer an alibi defense. The government was permitted on cross-examination to ask him whether he had previously been convicted of any felonies in order to impeach the credibility of his testimony. Tucker admitted two previous felony convictions in Florida and one previous felony conviction in Louisiana. At the conclusion of- the trial the jury entered a verdict of guilty. During the sentencing proceeding the federal district judge called upon an FBI agent to testify about Tucker’s prior convictions, including the threе acknowledged by Tucker at trial. The judge then sentenced Tucker to serve 25 years in prison — the maximum term authorized by the applicable statute. Sevеral years later, in a post-conviction proceeding, the Superior Court of Alameda County, California, “determined” that the Louisiana felony conviction and the earlier Florida felony convictions were constitutionally invalid under Gideon.
In 1969, Tucker filed a motion under 28 U.S.C. § 2255 (1970) in the United States District Court for the Northern District of California in which he sought to vacate the 1953 federal sentence on the ground that evidence of prior invalid convictions had been admitted and hаd fatally tainted the jury’s verdict of guilt. In response to the motion the United States Attorney conceded that two of Tucker’s prior convictions were cоnstitutionally invalid, and from the district court’s opinion on the motion it appears the concession was based on the finding of the California state superior court. Tucker v. United States,
On appeal, the Ninth Circuit affirmed the district court’s conclusion that the error did not fatally taint the jury’s verdict of guilt. However, the Ninth Circuit went on to find that there was а reasonable probability that the invalid prior convictions which were considered by the district judge in imposing sentence led him to impose a heavier sentence than he otherwise would have imposed, and it remanded the case to the district court for resentencing. Tucker
*649
v. United States,
The Supreme Court held that, although federal district judges have wide discretion in determining what sentence to impose upon a convicted defendant and may conduct a broаd inquiry, largely unlimited in scope, to assist in making that determination, they may not consider, even in part, misinformation of constitutional magnitude in imposing sentence. Accordingly, the Court affirmed the Ninth Circuit.
This court has no problem with the
Tucker
holding that a sentencing court may not consider prior convictions determined to be invalid in imposing sentence, but the cоurt is troubled by the implication in
Tucker
as to how the invalidity of prior convictions may be “determined.” At all three stages of Tucker’s motion it was apparently assumed that the
California
state superior court’s “determination” of the invalidity of
Louisiana
and
Florida
state convictions was an appropriate exercise of that court’s jurisdiction and conclusive on the issue. The only referencе the Supreme Court made to this was a footnote to the effect that the unreported superior court “determination” had not been disturbed on appeal. United States v. Tucker,
supra,
445 n.2,
If this court’s understanding of
Tucker
and
Lufman
is correct, whenever someone sentenced by this court moves for re-sentencing and asserts that this court in imposing sentence considered his prior state and federal convictions, the government will have the obligation to investigate each and every one of those prior state or federal convictions, regardless of the jurisdiction in which they were obtained, and prove that they were not constitutionally infirm. This cоurt would have the same obligation in considering prior convictions before sentencing. These investigations, too, could not be limited to possible
Gideon
violations, but would have to extend to all constitutional violations.
See
Beto v. Stacks,
*650
It is conceivable that as a result of
Tucker
and Loper v. Beto,
In the present case, Wendt alleges that four prior Maryland convictions and one prior Florida conviction are invalid under Gideon. The court deems it proper at this point to order the Attorney General to present Wendt in this court September 29, 1972 fоr re-sentencing in light of United States v. Tucker, supra.
For the foregoing reasons the Attorney General of the United States is hereby ordered to present defendant in this court September 29, 1972 for re sentencing.
It is so ordered.