LOPER v. BETO, CORRECTIONS DIRECTOR, et al.
No. 70-5388.
Argued January 13, 1972
Decided March 22, 1972
Stewart, J., announced the Court’s judgment and delivered an opinion, in which Douglas, BrenNAN, and Marshall, JJ., joined. White, J., filed an opinion concurring in the result, post, p. 485. Burger, C. J., filed a dissenting opinion, in which Powell, J., joined, post, p. 485. BlackmuN, J., filed a dissenting opinion, post, p. 494. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and BlackmuN and Powell, JJ., joined, post, p. 497.
John T. Cabaniss, by appointment of the Court, 404 U. S. 954, argued the cause for petitioner. With him on the brief was Dan Q. Matthews.
Robert Darden, Assistant Attorney General of Texas, argued the cause for respondents. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and Robert C. Flowers, Assistant Attorney General.
Mr. Justice Stewart
announced the judgment of the Court and an opinion in which Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join.
The petitioner, Otis Loper, was brought to trial in a Texas criminal court in 1947 upon a charge of statutory rape. The alleged victim, Loper’s 8-year-old stepdaughter, was the only witness who identified him as the perpetrator of the crime. The sole witness for the defense was Loper himself, who testified that he had not assaulted the victim in any way. For the purpose of impeaching Loper’s credibility, the prosecutor was permitted on cross-examination to interrogate Loper about his previous criminal record. In response to this line of questioning, Loper admitted in damaging detail to four previous felony convictions during the period 1931-1940, three in Mississippi and one in Tennessee. At the conclusion of the one-day trial the jury found Loper guilty as charged and sentenced him to a term of 50 years in prison.
Loper initiated the present habeas corpus proceeding in the United States District Court for the Southern District of Texas in 1969. He alleged, among other things, that the previous convictions used to impeach his credibility at the trial were constitutionally invalid under Gideon v. Wainwright, 372 U. S. 335, because he had been denied the assistance of counsel in the Mississippi and Tennessee courts that had convicted him. His sworn testimony at the habeas corpus hearing confirmed these allegations. In addition, he produced court records to corroborate this testimony. The District Court denied habeas corpus relief, placing “little or no credence” in Loper’s testimony, and holding that in any event “the question does not rise to constitutional stature and is not subject to collateral attack.”
On appeal, the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Although recognizing “the force of Loper’s argument to the effect that such convictions may have impaired his credibility in the minds of the jury as a witness in his own behalf,” the appellate court held that “the use of such convictions as evidence for purposes of impeachment which goes only to credibility, is not nearly so serious as the use of a conviction for enhancement, which may add years of imprisonment to the sentence of a defendant. . . . The issue presented raises an evidentiary question. The fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal.” 440 F. 2d 934, 937.
We limited our grant of certiorari to a single constitutional question, worded as follows in the petition for certiorari: Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case? 404 U. S. 821. This is a recurring question that has received conflicting answers in the United States Courts of Appeals. It is a question that has also divided state appellate courts.
The starting point in considering this question is, of course, Gideon v. Wainwright, 372 U. S. 335. In that case the Court unanimously announced a clear and simple constitutional rule: In the absence of waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer.
The Court dealt with a sequel to Gideon in Burgett v. Texas, 389 U. S. 109. There a Texas indictment charging the petitioner with assault contained allegations of previous felony convictions, that, if proved, would have increased the punishment for assault under the state recidivist statutes. The indictment was read to the jury at the beginning of the trial. Records of two of the previous convictions were offered in evidence during the course of the trial, and it appeared that at least one of these convictions had been obtained in violation of Gideon. In reversing the Texas judgment, the Court said:
“To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.” 389 U. S., at 115.
Earlier this Term we had before us a case in which it appeared that previous convictions obtained in violation of Gideon had played a part in the determination of the length of a convicted defendant’s prison sentence. United States v. Tucker, 404 U. S. 443. We there ruled that the Court of Appeals for the Ninth Circuit had been correct in holding that the teaching of Burgett required a remand of the case to the trial court for resentencing.
The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to “enhance punishment.” The case now before us involves the use of such convictions “to support guilt.” For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Loper’s testimony in the eyes of the jury.
Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit:
“We conclude that the Burgett rule against use of uncounseled convictions ‘to prove guilt’ was intended to prohibit their use ‘to impeach credibility,’ for the obvious purpose and likely effect of impeaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.” Gilday v. Scafati, 428 F. 2d 1027, 1029.
A dissenting opinion filed today suggests that our decision presses the “sound doctrine of retroactivity beyond the outer limits of its logic.” On the contrary, our decision in this case follows directly from the rationale under which Gideon v. Wainwright, supra, was given retroactive application. We have said that the principle established in Gideon goes to “the very integrity of the fact-finding process” in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer “lacked reliability.” Linkletter v. Walker, 381 U. S. 618, 639 and n. 20. Loper has “suffered anew” from this unconstitutional deprivation, Burgett v. Texas, supra, regardless of whether the prior convictions were used to impeach him before or after the Gideon decision. It would surely be unreasonable, as one dissenting opinion suggests, to expect the judge at Loper’s trial to have anticipated Gideon, just as it would have been unreasonable to have expected the judge at Gideon’s trial to have foreseen our later decision in that case. But a necessary result of applying any decision retroactively is to invalidate rulings made by trial judges that were correct under the law prevailing at the time the judges made them. If the retro-activity of Gideon is “sound,” then this case cannot be decided under the ill-starred and discredited doctrine of Betts v. Brady, 316 U. S. 455.
The judgment before us is set aside, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
“Q. During the past ten years how many times have you been indicted and convicted in this State or any other State for a felony?
“A. About twice in the past ten years.
“Q. How about on May 7th, 1940, weren’t you arrested . . .
“MR. LETTS: Your honor, I object to that, as to his being arrested, as that is not admissible in this case.
“THE COURT: Well, let him finish the question, Mr. Letts.
“Q. All right, On May 7th, 1940, what were you indicted and convicted for?
“A. Burglary.
“Q. Where was that?
“A. Carthage, Mississippi.
“Q. What did you get for that?
“A. Five years in the penitentiary.
“Q. On January 15th, 1935, what were you indicted and convicted for then?
“A. Burglary.
“MR. LETTS: We object, your honor, as that has been over ten years.
“Q. What were you indicted, tried and convicted for then on January 15th, 1935, in Brushy Mountain Parish, Petros, Tennessee?
Burglary.
“Q. What did you get for that?
“A. Four years.
“Q. How about October 27th, 1931, what . . .
“MR. LETTS: Your honor, we object to that and ask the Court to instruct the jury not to consider it. That reaches way back to 1931 and the Court knows it would prejudice and inflame the minds of the jury in this case.
“THE COURT: Objection over-ruled.
“Q. Where were you arrested on November 29th, 1934?
“A. In Chattanooga, Tennessee.
“Q. What about October 27th, 1931, what were you convicted for in Parchman, Mississippi, then?
“A. Burglary.
“Q. What did you get for that?
“A. Six months, I think.
“Q. There have been so many offenses you have committed that you can’t remember them straight, can you?
“MR. LETTS: We object to that remark, your honor.
“THE COURT: Objection sustained.
“Q. It was for burglary in 1931?
“A. Yes.
“Q. Have you always gone by the name of Otis Loper?
“A. Not always.
“Q. What other names have you gone by?
“A. Milton Cummings.
“Q. That was in Mississippi, wasn’t it?
“A. Yes sir.
“Q. What were you indicted and tried for on that case in Mississippi in 1932?
“A. Burglary.
“Q. How much time did you get on that conviction?
“A. Two years.
“Q. And that was under the name of Milton Cummings?
“A. Yes.
“Q. And that is 4 times that you have been convicted of burglary, a felony?
“A. Yes.
“MR. DUGGAN: That’s all, no more questions.”
Loper’s petition was originally dismissed by the District Court, but the Court of Appeals vacated the dismissal and remanded for an evidentiary hearing on the question whether Loper had been deprived of his right to appeal from the Texas judgment of conviction. 383 F. 2d 400. On remand, the District Judge, noting that Loper had filed numerous habeas corpus petitions over a period of 20 years, appointed counsel to represent Loper and directed him to raise any points that “conceivably might be raised in his behalf,” in order that a single evidentiary hearing could serve to put an end to postconviction litigation in Loper’s case. Loper, with the assistance of counsel, then advanced six claims, and the evidentiary hearing was directed to resolving all six contentions. The claim at issue here had not been raised in any of Loper’s previous petitions.
“Q. Were you convicted in 1931 of burglary in Scott County, Mississippi?
“A. Yes, sir.
“Q. How old were you at this time?
“A. I don’t remember, but I believe I was around 17 years, something around that age. I’m not for sure.
“Q. Were you represented by an attorney in connection with that proceeding?
“A. No, sir, I didn’t have an attorney.
“Q. Were you advised that you had a right to an attorney whether you could afford one or not?
“A. No, sir.
“Q. Did you know that you were entitled to one whether you could afford one or not?
“A. No, sir.
“Q. Did you inform the court that you did not want to be represented by an attorney?
“A. No, sir.
“Q. Were you convicted in that proceeding?
“A. Yes, sir.
“Q. Were you convicted, Mr. Loper, of burglary in 1940 in Leake County, Mississippi?
“A. Yes, sir.
“Q. How old were you at the time that occurred?
“A. I believe I was about 25 or 26, I don’t remember for sure.
“Q. Let me ask you one more question about that Scott County, Mississippi, conviction. Did you plead guilty or not guilty?
“A. I plead guilty.
“Q. Were you sentenced to a term in prison?
“A. Yes, sir.
“Q. All right, sir. Now, in connection with the 1940 conviction, were you represented by an attorney?
“A. No, sir.
“Q. At any stage of the proceedings?
“A. No, sir.
“Q. Were you advised that you had a right to an attorney whether you could afford one or not?
“A. No, sir.
“Q. Could you in fact afford one?
“A. I don’t believe I could have then.
“Q. What about 1931, the conviction in Scott County, Mississippi, could you have afforded an attorney?
“A. I couldn’t have, no, sir.
“Q. Did you know in connection with the 1940 proceeding that you were entitled to be represented by counsel whether you could afford it or not?
“A. No, sir.
“Q. Did you inform the court that you did not want to be represented by an attorney?
“A. No, sir.
“Q. Was the 1940 proceeding in Leake County, Mississippi, did you plead guilty or not guilty?
“A. Not guilty.
“Q. Was a trial held?
“A. Yes, sir.
“Q. Who conducted the defense in that trial?
“A. Well, there wasn’t anybody. I just didn’t know what to ask the people. I didn’t know anything about how to.
“Q. Did you conduct your own trial?
“A. As far as it was conducted, yes, sir.
“Q. Why did you attempt to do so yourself?
“A. Well, I didn’t have an attorney, and nobody to help me. I didn’t want to plead guilty to it.”
A certified record of the 1940 proceeding in Leake County, Mississippi, recited that Loper appeared “in his own proper person.” A certified copy of the 1935 proceeding in Hamilton County, Tennessee, recited that Loper appeared “in person.” A certified copy of the 1931 proceeding in Scott County, Mississippi, recited simply that Loper and his eodefendants “entered pleas of guilty, as charged in the indictment.” No record was introduced of the 1932 conviction in Mississippi.
The memorandum and order of the District Court are unreported.
A dissenting opinion, post, at 502, implies that the District Court found that the petitioner did not meet his burden of proving that he had not waived his right to counsel in the Mississippi and Tennessee courts. But no such finding appears in the record. The District Court did say that “there is no evidence other than petitioner’s own statement that he was not represented by counsel at the time of his prior convictions, which evidence, as stated above, I decline to accept as credible.” (Emphasis added.) This statement is wholly incorrect, for Loper did introduce documentary evidence to corroborate his testimony that he had not been represented by counsel on at least two of his prior convictions. See n. 4, supra. Nowhere in the District Court’s opinion is there any finding of fact as to whether Loper might have waived counsel. And the fact that the challenged convictions occurred at a time when, under our decisions, state courts were under no constitutional obligation to provide lawyers to indigent defendants in all felony cases, would make any such finding highly unrealistic, in the face of the documentary evidence and the petitioner’s uncontradicted testimony. For, at the time of the petitioner’s previous convictions, there was no known constitutional right to be “waived.”
Moreover, the judgment that we review today is not that of the District Court, but of the Court of Appeals. That court stated:
“The convictions mentioned have been of record for a number of years, yet the record before us does not disclose that any attack has ever been made upon those convictions. Except for the assertions of Loper the record fails to furnish any conclusive information as to the facts and circumstances surrounding his former convictions. So far as the record before us reveals, there are outstanding, unchallenged, state court convictions of felonies in the States of Mississippi and Tennessee. ... [I]f the convictions possessed the infirmities which Loper claims, he has failed to make any effort to set them aside for over '30 years. No one else could have done so. Surely such an attack was available to him in view of the retroactive application of the Gideon decision which was decided over six years prior to the hearing under review.” 440 F. 2d, at 937.
But despite these observations, the Court of Appeals, perhaps recognizing the error in the statement of the District Court quoted above, did not rest its decision on a finding that the petitioner had failed to meet his burden of proving the invalidity of the prior convictions. It reached the merits of the legal question involved, and we granted certiorari to review that decision. There is thus no basis in the record upon which we may either dismiss this case or affirm the decision below on the ground that the petitioner did not meet his burden of proving that the prior convictions were invalid. See Burgett v. Texas, 389 U. S. 109, 114-115; Losieau v. Sigler, 406 F. 2d 795, 803; Williams v. Coiner, 392 F. 2d 210, 212-213.
The dissenting opinion relies upon our decision last Term in Kitchens v. Smith, 401 U. S. 847. Yet we held in that case that the petitioner on collateral review had sufficiently “proved he was without counsel due to indigency at the time of his [1944] conviction,” even though, unlike the present case, the petitioner “introduced no evidence other than his own testimony.” Id., at 849.
Compare the decisions in this case and in Walker v. Follette, 443 F. 2d 167 (CA2 1971), with Gilday v. Scafati, 428 F. 2d 1027 (CA1 1970); Tucker v. United States, 431 F. 2d 1292 (CA9 1970); and Howard v. Craven, 446 F. 2d 586 (CA9 1971).
Simmons v. State, 456 S. W. 2d 66 (Ct. Crim. App. Tex. 1970), holds that prior convictions obtained without the benefit of counsel may nevertheless be used for the purpose of impeachment. Most reported state decisions, however, hold the contrary. See Spaulding v. State, 481 P. 2d 389 (Alaska 1971); In re Dabney, 71 Cal. 2d 1, 452 P. 2d 924 (1969); Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970); White v. State, 11 Md. App. 423, 274 A. 2d 671 (1971); Subilosky v. Commonwealth, - Mass. -, 265 N. E. 2d 80 (1970) (semble).
This constitutional rule is wholly retroactive. Pickelsimer v. Wainwright, 375 U. S. 2; Kitchens v. Smith, 401 U. S. 847.
Under Texas law at the time, the jury, upon finding Loper guilty, was authorized in its absolute and unreviewable discretion to impose any punishment from five years in prison to death in the electric chair. Texas Pen. Code, Art. 1189 (1948). Thus, bringing the prior convictions to the attention of the jury may well also have served to enhance Loper’s punishment.
This is not a case where the record of a prior conviction was used for the purpose of directly rebutting a specific false statement made from the witness stand. Cf. Walker v. Follette, 443 F. 2d 167, and see Harris v. New York, 401 U. S. 222; Walder v. United States, 347 U. S. 62. The previous convictions were used, rather, simply in an effort to convict Loper by blackening his character and thus damaging his general credibility in the eyes of the jury.
That a record of prior convictions may actually do more than simply impeach a defendant’s credibility has been often noted. See. e. g., C. McCormick, Evidence § 43, p. 93 (1954):
“The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a ‘record’ of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility.1’
In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions. Cf. Subilosky v. Moore, 443 F. 2d 334; Tucker v. United States, 431 F. 2d 1292; Gilday v. Scafati, 428 F. 2d 1027.
The reasoning of that dissenting opinion would dictate that the rule in Burgett must not be given retroactive application, at least to cases where the sentence was imposed prior to Gideon. Yet, by our disposition of Bates v. Nelson, 393 U. S. 16, where we vacated and remanded in light of Burgett a denial of habeas corpus following a 1957 conviction, we indicated that Burgett is retroactive in its application without regard to whether the use of the prior convictions was made prior to or after Gideon. Every federal court that has considered the question has held Burgett retroactive, and none has made the distinction suggested by the dissenting opinion. See, e. g., Walker v. Follette, 443 F. 2d 167 (CA2 1971); Losieau v. Sigler, 406 F. 2d 795 (CA8 1969); Tucker v. Craven, 421 F. 2d 139 (CA9 1970); Oswald v. Crouse, 420 F. 2d 373 (CA10 1969).
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