Richard Duane Brown v. United States

Richard Duane Brown appeals from a judgment denying his petition for relief under 28 U.S.C. § 2255 . After his appeal had been calendared, we deferred submission pending the decision in Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978) (en banc). We now remand for further proceedings as noted below.

In 1970, Brown was convicted of violations of 18 U.S.C. § 2314 (interstate transportation of forged securities), and was sentenced to fifteen years’ imprisonment. The conviction was affirmed in an unpublished memorandum.

In 1976, Brown filed the § 2255 petition now before us. We will discuss the facts as they relate to the several issues.

I. Enhancement of Sentence Through Reliance on Unconstitutional Prior Convictions.

Brown alleges that the district court in 1970 sentenced him to a longer term than it would have imposed if the court had not been influenced by three prior state convictions that Brown now alleges were constitutionally defective. Accordingly, Brown claims that, under United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972), the sentencing court must resen-tence him without considering his convictions in California, Michigan, and Iowa.

Brown…