Williams, Milton Veran, WR-55,687-05

Williams, Milton Veran

WR-55,687-05

| Tex. App. | Mar 13, 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 of ,----:;-r-~---· ___ · - - - " " - - ' 2001..

',,dfb·adl 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

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.;ca, th:3 · -~ (-~ .. ~Jj--'12.. ;~tfJ'_;F" *6 EXHI13~T p :.#llu,) .· "; ~0 F-9573890-NL -------~--

(, __ ., . ·Nf41'1ED ATTORNEYS. AND ANNOUNCED READY FOR TRIAL. DEFENJ.JHNT APPEARED IN PERSON IN. OPEN: COURT. WHERE DEFENDANT . WAS· NOT .· REPRESENTED BY COUNSEL DEFENDANT< KNOWINGLY, 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 ,ATTORNEYA THE .· ATTORNEY. FOR THE STATE AND THE COURT.· WHERE SHOWN ABOVE THAT ··THE CHHRGING -lNSTRUMENT WAS BY INFOAMATION INSTEAD OF INDICTMENT! THE. DEFENDANT DIDt 'WITH THE CONSENT AND APPROVAL OF HIS ATTORNEY WAIVE H S RIGHT TO PROSECU ION BY INDICTI"'ENT 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 INSTRUMENT. 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 MENTALLY COMPETENT- AND ~sAID'. PLEA .lS'FREE AND VOLUNTARY THE SAID PLEA WAS ACCEPTED BY THE COURT. AND IS NOW

ENTERED OF RECORD AS THE PLEA HEREIN OF.DEFENDANT. DEFENDANT IN OPEN COURT, IN- ~§~~~~~tA~~~~~G A~~I~~gs~~§x~R~~A~Yo~F o~.H~I¥~~~~~~Gi A~5T~g~§~6 • 1-~~~ T~~P~e~~~~~£ MAY BE.· BY STI,...ULATION CONSENTED TO THE INTRODUCT ON OF iESTIMONY ~ALLY, ·BY .JUDICIAL CONFESS I ON, BY AFFIDAVITS A WRITTEN STATEI"'ENTS OF WI TNESSE:S ~-AND ANY OTHER DOCUMENTARY EVIDENCE. SUCH WHIVER AND CONSENT HAVING BEEN A.~R '· BY THE ·COURT·. IN WRITING AND FILED IN THE PAPERS OF THE CAUSE. THE~-U~ · V HEARD DEFENDANT,.s WAIVER oF ·rHE READING oF · THE CHARGING IK M · ENDANT··s · C IS OF THE PLEA THERETO THE EVIDENCE SUBMITTED AND~THE ARGUMENT · CO OPINION FROM'THE EVIDENCE SUBMITTED THAT DEFEi\IDANT~"T-~· Ui ,I-f THE'OFFENSE ~S _ SHOV.JN ABOVE AND THAT THE OFFENSE WAS COMMITTED~1'· D D . E ANT . ON THE DATE SET FORTH ABOVE. THE ·COURT FURTHER MAKES ~ N~I S. o TO · DEADLY WEAPON, ~= ~~ VIOLENCE, BIAS OR PREJUDICE, AND R~ -~ IO-. OR REPARATIO~ AS SET FORTH :. ·... AND WHEN SHOWN ABOVE THAT THE CHARGING INSTRUMENT COI~TAINS ENHANCE- : MENT PARAGRAPH< S > , WHICH WERE NOT WAIVED· OR D ISM I SS.EDt THE COURT,· AFTER HEARING THE DEFENDANT,.S PLEA TO SAID PARAGRAPH<S> 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 '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 • . . - ~ ~.- ! . 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~ 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 \ iS HEREBY 3AID .JUDGMENT ·AS SET FORTH ABOVE 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. .. . . I NTEBESI OF I Hi: IT FIIRTHER APPE'AR I NG TO THE COURT THAT THE BEST )UBLIC AND THE DEFENDANT WILL BE SERVED BY THE SUSPENSION OF T~E IMPOSITION 0~ ;ENTENCE HEREI~; •

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. ..(··. ·.·· . ·. · ... · .. -~ ·:±t·llb\ .·· -,_ NO F-9573890-NL . .. . . . . · \ / • · EXHIBIT ~ ') i 1 · · ·. .· . · · . 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~ · . . WAS,' IN OPEN COURTf PLACEP UPON. A CERTIFICATE OF FIN~E;\SR~,~l ~~ ERTIFI. CATE. · .· .. ·... FOLLOWING THE DISPOSITION OF THIS CAUSE THE 0 t<fbA. "'S I RPRINT INCORPORATED BY hU·~ CE :\_.~.)·~~ART OF THIS IS ATTACHED HERE 0 AND IS .JUDGMENT. · · · . - · . · ..- A PRESENTENCE INVESTIGATION WAS~D .· D . IN ACCORDANCE WITH THE . _·· .··· ' , ~ APPLICABLE PROVISIONS OF LAW. · . · · COURT COSTS IN THE AMOUNT OF $124.50

' ' _.; .JUDGE PRESIDING · .. ··,·;. • ' .. .... .. ·.

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l.' ' ···• *11 ~. i ~EXHIBIT~.~ F'ROBATI9N · S"r:ATE .JAIL I - Ul".l"l .L .. :REV~ · ~~·~ /0 1 /94 > ·-~ ... NO. F-957~890-NL IN THE CRIMINA( riiSTRICT "HE STATE OF TEXAS COURT 5 IS. ' . DALLAS COUNTY,'.TEXAS IILTON VERAN WILLIAMS .JUDGMENT COMMUNITY SUPERVISION . PLEA OF GUILTY ORNOLO CONTENDERE .JURY WAIVED

.JULY TERM, A.D., 1995 DATE OF .JUDGMENT: 07/24/9S UDGS:PRESIDING: MANNY ALVAREZ ATTORNEY . . TTORNEY OR STATE: . MALCOM HARDEN fOR DEFENDANT: SCALA BYERS.· \:, --'--',--'--------------- -·--·-----------------------------· FFENSE·. $1,500 ~.-FR~~UT THEFT OF;PROPERTY. OF. THE VALUE OF DNV I. CTED OF: . LESS THAN $20,000

~r ~'~ CCi~~D: : 04/07/95 DEGREE: STATE .JAIL -!ARGlNG ~STRUMENT: INDICTMENT

~RMS OF PLEA BARGAIN rN DETAIL): · · 1 YEAR STATE .JAIL PRO~ATED 3 YEARS, FINE $~:00

_EA TO ENHANCEMENT ·.FINDINGS ON .ENHANCEMENT: N/A 'RAGRAPH<S>~ 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. • ..':· *12 ··:: · .. ··.·· ..... :. . . ON THIS DA.Y SET FORTH ABOVE THE ABOVE STYLED AND NUMBERED CAUSE CAME ABOVE ··. ,·· TRIAL. THE STAtE OF TEXASAND DEFENDANT APPEARED BY AND THROUGH THE •'::··_.;:·._. ··. ·.· VOL. 339 PAGE.122 ... I ' --- - ----- ------·- -----·,--. -

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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 thatwe 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.

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

westiaw.

Date ofPrinting: Aug 04,2009 ot....~--·- KEY CITE f> 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)

\ ..

... ' 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 strategy with full knowledge of the consequences of United States Court of Appeals, a potential guilty verdict. Comprehensive Drug Ab Eighth Circuit. use Prevention and Control Act of 1970, § UNITED STATES of America, Appellee, 411(a)(1), 21 U.S.C.A. § 851(a)(1). v. Pablo STALLINGS, Appellant. No. 01-3800. [2) Sentencing and Punishment 350H ~1361 Submitted: May 13, 2002. 350H Sentencing and Punishment *16 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 such enhancement, in prosecution for conspiracy to ment's intent to seek sentencing enhancement based 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 350Hkl330 k. In General. Most Cited · 350H Sentencing and Punishment 350HVI Habitual and Career Offenders Sentencing and Punishment 350H €=:>1338 350HVI(K) Proceedings 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

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Page 3 of7 Page2 301 F.3d 919 301 F.3d 919

(Cite· as: 301 F.3d 919)

sess with intent to distribute cocaine base, where 110kl144.13(3) k. Construction in Favor of Government, State, or Prosecution. prior conviction was never properly entered against 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 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 *17 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 Evidence was sufficient to support defendant's con the imposition of sentence, in which case no judg

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 ant shipped cocaine through the mail and arranged which case a judgment· of conviction is rendered. West's Ann.Cal.Penal Code§ 1203.2. for others to deliver cocaine base on his behalf,

wiretap evidence liiiked defendant with admitted drug . distributo.J;S, and physical evidence admitted [5] Criminal Law 110 €=:>'1144.13(3) i included scales, razors, and large amount of cash i i, seized from storage locker rented to defendant. 110 Criminal Law 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 1 06II Establishment, Organization, and Proced-

.··.

Pag~ 3 of7 301 F.3d 919 Page2 301 F.3d 919

(Cite as: 301 F.3d 919) 110k1144.13(3) k. Construction

sess with intent to distribute cocaine base, where . 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 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 § *18 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 91k47(12) k Narcotics and Dan Under California law, when a sentencing court · 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 drug .distributors, and physical evidence admitted [5] Criminal Law 110 €;::;;::>1144.13(3) f included scales, razors, and large amount of cash I \ 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)

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 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 06k90 Decisions of Same Court or prior convictions the government intends to rely Co-Ordinate Court upon for sentence enhancement. See21 U.S.C. §

1 06k90(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 *19 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. Stallings's trial commenced on Tuesday, July 17, Before McMILLIAN, FAGG, and MELLOY, Cir 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 satisfiedrequirements of§ 851(a)(l)). ernment filed an information seeking to enhance 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 able doubt. The two predicate convictions offered Stallings to life imprisonment. Stallings now ap by the government for enhancement purposes were peals his conviction and sentence. We affirm the a 1993 California conviction and a 1987 Nevada conviction but reverse and remand the sentence im conviction. At sentencing, defense counsel entered posed. a valid objection to the prior convictions on the

basis of "identity, relevance, and foundation." . Therefore, under 21 U.S.C. § 85l(c)(l), the govern I. ( ment had the burden to prove the two prior felony drug convictions beyond a reasonable doubt. [1][2] Stallings challenges his enhance\f sentence Stallings does not challenge on appeal .the use of contending the procedure and notice were defective the 1987 Nevada conviction. However, he raises a and the .two .prior felo~y convictions. were not 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

1-L..I..-.// ____ 1_" -----.1.1---- __ .•. / .... ": . J / . . . ~ J J

Page 5 of7 301 F.3d 919 Page4 301 F.3d 919

(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~ voked probation nor did it pronounce judgment. invalidate the sentence were raised through 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 *20 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 posed, imposition Thereof having been suspended court is now in receipt of the supplemental 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 Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182, Superior Court of California, County of Alameda. 187 (1959) (citation omitted); see also People v. However, the record made at the sentencing hearllig.

s;. indicates no further action was taken on the Califor- Pennington, 213 Cal.App.3d 173, 261 Cal.Rptr . 476, 478 (1989) ("Where no sentence is imposed at . nia probation officer's revocation recommendation .. 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-, .. ~J... n ____ _.li_TT'"r.,._ KT D 0 ... +-- ~'"'- Jlr~-h,......-1\.TA Page 6 of7 ~~~EN D1)( / E~t-\1~II Page5 301 F.3d 919 301 F.3d 919

(Cite as: 301 F.3d 919) [ 5] [ 6] S.tallings also contends the evidence was in pending judgment against him in Califor 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 testified that Stallings shipped cocaine through the· law a~ation on:ler._j.s.____n.Qt__J ':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 *21 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 of cash seized from a storage locker rented to no judgment of conviction is reild<:red, or it may 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, however, were resolved by the jury and we do not (1963)); see also United States v. Haggerty, 85 F.3d 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), cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136 (':It is also settled that an order revokin.JLE!obation, 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 Accordingly, we affirm the conviction, and remand · been entered against Stallings and, therefore, the for re-sentencing. enhanced sentence imposed in reliance upon the California conviction was improper. C.A.8 (Neb.),2002.

U.S. v. Stallings

II. 301 F.3d 919

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