Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 82 C 0266 -- Allen Sharp, Judge.
Cummings, Chief Judge, Pell, Circuit Judge, and Swygert, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge.
Pro se petitioner, Bernard Williams, appeals the denial of his petition for a writ of habeas corpus. In his petition, Williams asserts that there was insufficient evidence to support a finding that he was an habitual offender. Ind. Code § 35-50-2-8. The district court rejected that contention. For the following reasons, we hold that there was insufficient evidence to support a finding beyond a reasonable doubt that Williams was an habitual offender. We reverse the district court and grant petitioner's request for habeas relief.
Petitioner Williams was convicted by a jury of theft in the Superior Court of Allen County, Indiana, and in a separate proceeding he was found, by the same jury, to be an habitual offender pursuant to Ind. Code § 35-50-2-8.*fn1 Williams was sentenced to four years imprisonment on the theft charge and to a consecutive term of thirty years as an habitual offender.
The petitioner appealed to the Indiana Supreme Court from his conviction as an habitual offender. His sole claim of error was that there was insufficient evidence to support the finding that he was an habitual offender. The Indiana Supreme Court affirmed the conviction by a divided court. Williams v. State, 424 N.E.2d 1017 (Ind. 1981).
Williams then filed a habeas petition in the federal district court, raising the same contention he had made in the Indiana Supreme Court. The district court dismissed the petition, finding no basis for habeas relief.
Because petitioner challenges the sufficiency of the evidence presented at the habitual offender proceeding, we will review the evidence presented at that proceeding in some detail.*fn2
The habitual offender proceeding*fn3 commenced with a motion in limine by the state to prevent the defense from mentioning the actual sentence the defendant would receive should he be found to be an habitual offender.*fn4 The court granted the state's motion and, upon a request for clarification, ruled that the motion also pertained to mentioning sentences that the petitioner received on any of his previous convictions.
The evidentiary hearing began with the state calling the attorney who represented petitioner on a 1971 forgery conviction. The attorney, testifying pursuant to a subpoena, stated that he had represented Williams in 1971 on a forgery charge. The attorney identified the defendant as the same person whom he represented in 1971, and testified that Williams had pleaded guilty to the forgery charge. The attorney testified that the petitioner was sentenced on the same charge. The state introduced a copy of the order accepting defendant's guilty plea. The order does not reflect the fact that petitioner was sentenced, but merely sets the date for the sentencing hearing. The attorney also testified that to the best of his knowledge the 1975 charge against defendant appeared to be unrelated to the 1971 forgery conviction.
The next witness called by the state, again testifying under subpoena, was the attorney who represented Williams on a 1975 theft charge. The attorney identified the defendant as the same person whom he represented in 1975. The attorney testified that the petitioner pleaded guilty to the charge. Pursuant to the attorney's identification, the state introduced a document, similar to the one mentioned above, wherein the defendant's guilty plea was accepted. The document sets a sentencing date but gives no indication that sentencing actually occurred. Thereafter, the attorney testified, upon examination of documents relating to the 1971 and 1975 charges, that the charges appeared to be unrelated. The attorney testified that to the best of his knowledge, the guilty plea had neither been set aside, reversed on appeal, nor had a pardon been issued.
The next witness appearing on behalf of the state was Judge Herman Busse, the presiding judge at both petitioner's 1971 and 1975 convictions. The judge was shown docket sheets for both convictions, although the docket sheets were never introduced into evidence. The judge, after being shown the docket sheets, indicated that the petitioner entered a guilty plea in both the 1971 and 1975 proceedings. The judge testified that both were felony convictions. The judge indicated that he probably would not remember the defendant. He did testify that the docket sheets contained his handwriting and that the two convictions were unrelated. At no time was the judge questioned about whether the petitioner had actually been sentenced.
The petitioner testified on his own behalf at the hearing. His testimony attempted to show that his two prior convictions were related because they both stemmed from his addiction to heroin. Upon cross-examination the petitioner testified that he had been convicted of both the 1971 forgery charge and the 1975 theft charge. Williams testified that he had been in serious trouble and that he had "served some time."
A finding by a jury or judge that a person is an habitual offender is not a criminal conviction, it merely provides for the imposition of an enhanced sentence. The determination that a person is an habitual offender, however, is a factual question for a trier of fact, either a judge or a jury. The standard of proof for a finding that a person is an habitual offender, as enunciated in the statute, is proof beyond a reasonable doubt. Ind. Code. § 35-50-2-8(d). Twyman v. State, 431 N.E.2d 778 (Ind. 1982).
One initial issue we must resolve is whether a challenge to an habitual offender determination is cognizable in a federal habeas petition. As a general rule, a federal court will not review state sentencing determinations that fall within statutory limits. Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980). Solem and Rummel were Eighth Amendment cases challenging the severity of the sentences imposed. The instant case involves a due process claim: whether the state met its burden of proof in showing that the petitioner was an habitual offender. A sufficiency of the evidence challenge to a state court finding that a person is a recidivist is cognizable in a federal habeas proceeding. French v. Estelle, 692 F.2d 1021 (5th Cir. 1982), cert. denied, 461 U.S. 937, 103 S. Ct. 2108, 77 L. Ed. 2d 313 (1983). Likewise, the claim made here is cognizable in this habeas proceeding.
The standard for federal court review of sufficiency of the evidence claims is set out in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). A court must determine whether, in viewing the record in the light most favorable to the prosecution, "no rational trier of fact could have found" the facts essential to an habitual offender determination beyond a reasonable doubt. Id. at 323. We apply the Jackson v. Virginia standard to this sentencing issue because the state requires that an habitual offender finding must be supported by proof beyond a reasonable doubt. See French v. Estelle, 692 F.2d at 1024 n.6. The Indiana Supreme Court applies a standard similar to the one enunciated in Jackson v. Virginia to its own review of the record in habitual offender proceedings. In Twyman v. State, 431 N.E.2d 778 (Ind. 1982), the Indiana Supreme Court stated that
in reviewing claims of insufficient evidence, this Court does not weigh the evidence or resolve questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that a defendant was guilty beyond a reasonable doubt [of being an habitual offender], we will affirm the conviction. Glover v. State (1970) 253 Ind. 536, 255 N.E.2d 657, Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890.
Twyman, 431 N.E.2d at 779. We therefore must decide whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable ...