Forrest S. Tucker v. United States

Forrest S. Tucker appeals from a district court order denying his motion, made under 28 U.S.C. § 2255 , to vacate the judgment convicting him of armed robbery and to set aside the sentence based thereon. The judgment and sentence of imprisonment for twenty-five years, entered on May 20, 1953, was affirmed by this court in Tucker v. United States, 214 F.2d 713 (9th Cir. 1954). The district court opinion now under review in this section 2255 proceeding is reported in 299 F.Supp. 1376 (N.D.Cal. 1969).

After Tucker had testified in his 1953 trial for the armed robbery, the Government introduced evidence of his three prior felony convictions. This evidence was received for the purpose of impeaching Tucker’s own testimony offering an alibi defense. In addition, after the jury had entered its verdict of guilty, the trial judge called for further information, in the form of a Federal Bureau of Investigation report concern *1293 ing Tucker’s prior convictions, for use in determining the sentence to be imposed.

On June 10, 1966, the Superior Court of Alameda County, California, in case No. 25,174, set aside two of Tucker’s prior convictions on the ground that “the defendant was neither…

(dissenting).

I respectfully dissent. This Court has not yet held that the rule of Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967), is applicable to constitutionally infirm convictions used for impeachment. This is the case in which it should be declared that a convicted person cannot attack his conviction on the ground that a constitutionally infirm prior conviction was used for impeachment. This Court has not yet held that the rule of Burgett v. Texas, supra, applies to invalidate a sentence where a constitutionally infirm prior conviction was called to the attention of the sentencing judge by presentence report, or otherwise, before sentence was imposed. This is the case in which it should be declared that a convicted defendant cannot attack the sentence imposed by showing that the sentencing judge was informed about a constitutionally infirm prior conviction.

This writer cannot believe that the Supreme Court intended such a broad interpretation and application of the Burgett rule. Viewed realistically, it means that the most hoary and ancient of the confirmed, repetitive recidivists may, by applying the “domino theory” whereby the earliest of the…

431 F.2d 1292 Forrest S. TUCKER, Appellant, v. UNITED STATES of America, Appellee. No. 24839. United States Court of Appeals, Ninth Circuit. Sept. 28, 1970. Forrest S. Tucker, in pro. per. James L. Browning, U.S. Atty., San Francisco, Cal., for appellee. Before HAMLEY and MERRILL, Circuit Judges, and THOMPSON, District judge. * HAMLEY, Circuit Judge: 1 Forrest S. Tucker appeals from a district court order denying his motion, made under 28 U.S.C. 2255, to vacate the judgment convicting him of armed robbery and to set aside the sentence based thereon. The judgment and sentence of imprisonment for twenty-five years, entered on May 20, 1953, was affirmed by this court in Tucker v. United States, 214 F.2d 713 (9th Cir. 1954). The district court opinion now under review in this section 2255 proceeding is reported in 299 F.Supp. 1376 (N.D.Cal.1969). 2 After Tucker had testified in his 1953 trial for the armed robbery, the Government introduced evidence of his three prior felony convictions. This evidence was received for the purpose of impeaching Tucker's own testimony offering an alibi defense. In addition, after the jury had entered its verdict of guilty, the trial judge called for…