1 See 18 U.S.C. § 924(e).

2 See USSG § 4B1.4 (2001).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50784

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

HORACE EDWARD HOLLIS, JR.,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PRISCILLA RICHMAN OWEN, Circuit Judge:

Horace Edward Hollis, Jr. appeals his criminal sentence under the Armed

Career Criminal Act1 and associated provisions of the United States Sentencing

Guidelines (USSG).2 Because there is insufficient evidence in the record that

Hollis was represented by counsel or validly waived his right to counsel in

proceedings leading to a prior conviction on which a sentence under the Armed

Career Criminal Act was predicated, we vacate and remand for resentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

October 30, 2007

Charles R. Fulbruge III

Clerk
No. 06-50784

3 See 18 U.S.C. § 922(g)(1).

4 See 18 U.S.C. § 922(g)(2).

5 See 18 U.S.C. § 922(g)(1).

6 See id. (defining a felon as any person “who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year”).

7 The relevant text of the stipulation is as follows:

The defendant fully understands he does not have to stipulate to these facts and

that he has a constitutional right to require the government to call witnesses at

the trial and have them testify as to the facts stipulated in this agreement.

Defendant also understands that he has a constitutional right to cross-examine

any witnesses the government may call to give testimony against him, and

knowing all of the above, the defendant, after consultation with his attorney,

agrees to waive these two rights along with any other rights that may attach or

inure to his benefit from the two rights set out above and agrees to stipulate to

the following facts:

That Defendant HORACE EDWARD HOLLIS, JR. is an individual previously

convicted of a crime punishable by imprisonment for a term exceeding one year,

to wit:

2

We also vacate his conviction as a felon in possession of a firearm3 because it is

multiplicitous.

I

Hollis was accused of being a fugitive in possession of a firearm4(Count

One) and a felon in possession of a firearm5(Count Two). Both counts were

based on the same firearm and the same time of possession. Hollis requested a

jury trial.

In order to establish that Hollis was a felon, the government was required

to prove a prior felony conviction.6 To preclude the introduction of evidence

regarding the details of his prior convictions before the jury, as well as the

details of his fugitive status, Hollis stipulated to certain facts, including the fact

that he was convicted of a felony in South Carolina in 1963 and sentenced to a

term of years in that state’s penitentiary.7 The jury found Hollis guilty as
No. 06-50784

On June 4th, 1963, was convicted of a felony in Cause No. 51217, in Charleston

County, South Carolina and sentenced to a term of years in the South Carolina

Penitentiary.

And:

That Defendant HORACE EDWARD HOLLIS, JR. is an individual who has

knowingly fled from a State to avoid prosecution for a crime in a criminal

proceeding, and was a fugitive from justice at the time of his arrest for this

offense, to wit:

On August 28, 2001, was indicted in Cause No. CR5665 in the Circuit Court for

Dickson County, Tennessee by the grand jury for a felony offense.

The foregoing stipulation of facts is true and correct and are approved by the

persons signing below.

Signed by: [Hollis, his counsel, and government counsel].

8 See 18 U.S.C. § 924(e).

9 United States v. Hollis, 155 F.App’x 793 (5th Cir. 2005).

3

charged in Counts One and Two.

At sentencing the government sought to establish that Hollis was a career

criminal and should be sentenced under the Armed Career Criminal Act, which

required proof that Hollis had three prior violent felony convictions.8 The

district court concluded that the government had met its burden and sentenced

Hollis to 212 months’ imprisonment on each count, to run concurrently; a fine

of $1,000 for each count; and an assessment of $100 on each count. Hollis

appealed, and based on the parties’ agreement that the record was unclear as to

which of several prior convictions were the predicates for the armed career

criminal enhancement, this court remanded for re-sentencing.9

At the re-sentencing hearing, it was undisputed that Hollis had at least

two prior violent felony convictions. At issue was whether the 1963 South

Carolina offense may be used as the third. Hollis testified that he was not

represented by counsel in that prior proceeding, was indigent, was not advised

that he was entitled to appointed counsel, and did not waive his right to counsel.
No. 06-50784

10 Burgett v. Texas, 389 U.S. 109, 115 (1967) (citing Gideon v. Wainwright, 372 U.S. 335

(1963)).

11 See United States v. Domino, 62 F.3d 716, 719 (5th Cir. 1995).

12 Mitchell v. United States, 482 F.2d 289, 292 (5th Cir. 1973).

4

The government offered a document from the state prosecutor’s office (the

“prosecutive summary”) that purported to reflect the name of an attorney

representing Hollis and other defendants in at least one aspect of the case. The

government also took the position that the stipulation regarding this prior

offense foreclosed Hollis from collaterally attacking the 1963 conviction.

The district court imposed the same sentence, concluding that Hollis’s

prior stipulation to the fact of the 1963 conviction prevented him from later

challenging the validity of that conviction. Hollis has again appealed.

II

It is well-settled that “a conviction obtained in violation of Gideon v.

Wainwright [may not] be used against a person either to support guilt or

enhance punishment for another offense.”10 The stipulation regarding the prior

South Carolina conviction was used to prove an element of Hollis’s conviction as

a felon in possession of a firearm. However, Hollis does not attack the validity

of the prior conviction for that purpose. He contends only that it cannot be used

to support sentencing him as an armed career offender.

Hollis contends that the stipulation regarding the prior South Carolina

offense admitted only that he was convicted, not that the conviction was validly

obtained. We interpret the meaning of stipulations de novo,11 and we agree. As

a general rule, if the text of the stipulation and inferences that may be drawn

from the record demonstrate a “clear waiver” or “intentional by-passing of an

opportunity to assert a known right,” then a subsequent attack on the prior

conviction is barred.12

The stipulation itself states only that Hollis “was convicted.” The text does
No. 06-50784

13 Id.

14 See Old Chief v. United States, 519 U.S. 172, 190-91 (1997).

15 Id.

16 Id.

17 Id. at 185.

5

not address Hollis’s guilt or the truth of the charges. There is no statement that

the conviction was valid or was constitutionally obtained. Nor is there any

statement that Hollis waived his right to attack the conviction collaterally.

Hollis’s stipulation is similar to an admission at issue in Mitchell v. United

States, in which this court held:

[B]y admitting the correctness of his criminal record at the time of

sentencing Mitchell did not admit that he was in fact guilty of the

three prior offenses charged, but only confirmed through his counsel

that the record of convictions and prison disciplinary proceedings

presented to the court was substantially correct. Neither Mitchell’s

statements nor those of his attorney at sentencing can fairly be

construed as more than admissions that Mitchell had been

previously convicted of three crimes, as reflected on his record.

They were not admissions of guilt and did not constitute an express

waiver of the right to attack the constitutional validity of the prior

convictions.13

Since the text of the stipulation is unavailing, the government asks us to

infer waiver from the stipulation’s purpose. As recognized in Old Chief v. United

States, a defendant has the rightto admit or stipulate to the fact of a prior felony

conviction for purposes of proof of felon status.14 The government cannot

thereafter offer evidence of guilt or the circumstances surrounding that prior

conviction.15 This is an evidentiary matter, as Old Chief explained.16 Evidence

of the circumstances of the prior conviction and even “evidence of the name or

nature of the prior offense generally carries a risk of unfair prejudice to the

defendant.”17 This risk outweighs the right of the government, as a general
No. 06-50784

18 Id. at 190.

19 433 F.2d 20 (5th Cir. 1970).

20 792 F.2d 1338 (5th Cir. 1986).

21 Id. at 1341.

6

matter, to prove its case as it chooses. As Old Chief discerned, the “recognition

that the prosecution with its burden of persuasion needs evidentiary depth to

tell a continuous story has, however, virtually no application when the point at

issue is a defendant’s legal status, dependent on some judgment rendered wholly

independently of the concrete events of later criminal behavior charged against

him.”18

The government argues that Hollis cannot“have it both ways,” contending

that when Hollis stipulated to the existence of the prior conviction for purposes

of establishing his status as a felon with regard to the felon in possession of a

firearm charge, he could not later disavow the prior conviction for sentencing

purposes. But the fact that Hollis failed to collaterally attack the prior

conviction during the trial of his innocence or guilt does not foreclose a

subsequent collateral attack during sentencing proceedings. As discussed above,

the stipulation does not constitute an express waiver, and Hollis’s failure to avail

himself of a right in one context does not constitute the waiver of that right in

another. 

Nor will we infer waiver under the doctrine of Zales v. Henderson19 and

Long v. McCotter.

20 As we stated in Long, the Zales doctrine “is limited to

situations in which . . . the petitioner has pleaded ‘true’ or ‘guilty’” to an

enhancement charge.21 Hollis has not pleaded “true” or “guilty” to the

underlying offense or to the Armed Career Criminal Act enhancements. The

stipulation in this case is not analogous in purpose or effectto a “true” or “guilty”

plea: the purpose of Hollis’s stipulation is to avoid prejudice to the jury. The
No. 06-50784

22 See Mitchell, 482 F.2d at 296 (citations omitted).

7

Zales waiver doctrine does not apply here.

III

The district court relied upon the waiver theory in ruling on Hollis’s

challenge to his 1963 conviction, and the court made no factual finding as to

whether Hollis had counsel for that conviction. In Mitchell, we set forth the

burdens and standards of proof when a defendant alleges that a prior conviction

was unconstitutionally obtained because of lack of representation:

[W]hen a convicted defendant who was indigent at the time of his

conviction collaterally attacks the conviction on right-to-counsel

grounds, and the record shows that he was not represented by

counsel or is silent regarding representation of counsel, then the

party which defends the conviction has the burden of proving that

the defendant was represented by counsel or that he waived his

right to counsel. Conversely, if the record of the conviction under

collateral attack shows that the defendant was represented by

counsel, the convicted defendant has the burden of impeaching the

record.22

The government argues that the prosecutive summary is evidence showing that

Hollis was represented by counsel and therefore thatthe burden was upon Hollis

to impeach that record at sentencing. But the prosecutive summary does not

show what the government claims it does. It shows, at most, that Hollis and his

co-defendants were represented by an attorney attheir bond hearing hours after

they were apprehended on May 14, 1963. Although the word “guilty” appears

on the document, it has no information regarding a trial or plea proceeding. It

does not reflect that Hollis was represented by counsel when convicted or that

he validly waived his right to counsel.

Because the government has not established three counseled predicate

felonies, the sentence must be vacated and Hollis must be re-sentenced.

IV
No. 06-50784

23 See United States v. Munoz-Romo, 989 F.2d 757, 759 (5th Cir. 1993).

24 The substantive portion of our opinion in the first appeal reads as follows:

IT IS ORDERED that Appellee’s unopposed motion to vacate the

sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee’s unopposed motion to

remand case for resentencing consistent with Mitchell v. United States, F.2d 289

(5th Cir. 1973) is GRANTED.

8

Conviction as a felon-in-possession and as fugitive-in-possession for the

same firearm on the same occasion is prohibited by Munoz-Romo.

23 Hollis does

not raise this issue in his appeal, but the government does so in its response and

requests that we vacate one of Hollis’s convictions.

In his first appeal in this case, Hollis argued both that Munoz-Romo

required that one of his two convictions be vacated, and that his Armed Career

Criminal Act sentence had not metthe requirements of Mitchell. In that appeal,

the government agreed with Hollis on the Munoz-Romo issue and on the second

issue requested that we remand because the record was not sufficiently clear to

determine whether Hollis’s sentence violated Mitchell. Our disposition in that

first appeal addressed only the Mitchell issue; we did not address the MunozRomo argument.24

At resentencing, Hollis moved the district court to vacate one of his

convictions in light of Munoz-Romo, and the government opposed that motion at

the time. The district court interpreted our mandate in the first appeal as

rejecting the Munoz-Romo argument. The district court accordingly resentenced

only in light of Mitchell and denied the motion to dismiss one of the convictions

under Munoz-Romo.

On this second appeal, we are bound by the law of the case rule:

“ordinarily an issue of fact or law decided on appeal may not be reexamined . . .
No. 06-50784

25 United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quoting United States v.

Matthews, 312 F.3d 652, 657 (5th Cir. 2002)) (internal quotation marks omitted).

26 Id. at 320 n.3.

27 City Pub. Serv. Bd. v. Gen. Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991) (amended on

another point, 947 F.2d 747 (5th Cir. 1991)).

28 Id. (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th

Cir. 1988)) (internal quotation marks and omissions omitted).

29 See Sulik v. Taney County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005).

9

by the appellate court on subsequent appeal.”25 Assuming, without deciding,

that our first appeal adjudicated the Munoz-Romo issue, we may not reconsider

that issue now unless one of the exceptions to the doctrine applies. The three

exceptions are: “(1) [t]he evidence at a subsequent trial is substantially

different; (2) there has been an intervening change of law by a controlling

authority; and (3) the earlier decision is clearly erroneous and would work a

manifest injustice.”26 The third exception is granted only in “extraordinary

circumstances.”27

Mere doubts or disagreement about the wisdom of a prior decision

of this or a lower court will not suffice for this exception. To be

clearly erroneous, a decision must strike us as more than just maybe

or probably wrong; it must be dead wrong.28

In this case, Munoz-Romo unequivocally prohibits Hollis’s simultaneous

conviction for Counts One and Two. If our opinion in the first appeal decided

that issue and allowed both convictions to stand, it was “dead wrong” under our

earlier decision in Munoz-Romo. Allowing an invalid conviction to stand would

work manifest injustice. The Eighth Circuit has held that a clearly erroneous

appellate ruling on a statute of limitations defense in a 42 U.S.C. § 1983 claim

that had the effect of improperly dismissing certain defendants would work a

manifestinjustice if allowed to stand on the second appeal.29 The court therefore

modified its earlier ruling, despite the fact that it had become the law of the
No. 06-50784

10

case. Allowing an invalid criminal conviction to stand would work a far greater

injustice than improper dismissal of defendants in a civil § 1983 case. In these

unique circumstances, in which the government, in the interest of justice, urges

us to vacate a defendant’s criminal conviction because it is foreclosed by this

court’s prior precedent, it would be clear error and manifestinjustice to allow the

conviction to stand. We will grant the government’s request to vacate Count

Two.

V

For the foregoing reasons, Hollis’s conviction under 18 U.S.C. § 922(g)(1)

(felon in possession of a firearm), sentence under 18 U.S.C. § 924(a)(2), as well

as the penalty and fine, are VACATED. His sentence under 18 U.S.C.

§§ 922(g)(2) and 924(a)(2) (fugitive in possession of a firearm) is VACATED and

we REMAND for resentencing.