Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 86 C 2281 - Harold A. Baker, Judge.
Wood, Jr., Posner, and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
Ten years ago, Johnnie Jones invaded a closed diner, terrorized the occupants, and stole $550. He took the gun from a deputy sheriff who happened to be in the diner. Although no one resisted, Jones fired at least four shots from his revolver and the deputy's magnum. One shot was discharged so close to the deputy's face that it caused powder burns. We do not know whether Jones missed at point blank range or was simply trying to frighten the patrons.
Jones pleaded guilty to eight crimes arising out of this episode: two armed robberies (of the money and the gun), two felony thefts, and four counts of armed violence (assault with deadly weapons). The state dismissed four counts charging attempted murder. The state judge could have imposed consecutive penalties aggregating 190 years for these crimes. The felony theft counts carried maximums of five years each, and the other six counts had maximums of 30 years each. Ill. Rev. Stat. ch. 38 para. 1005-8-1. Instead he sentenced Jones to eight concurrent terms (the longest of which is 60 years' imprisonment) under Ill. Rev. Stat. ch. 38 para. 1005-5-3.2(b), then a year old. This statute allows the augmentation of a criminal sentence when the defendant has been convicted of earlier, equally-serious felonies, § 3.2(b)(1), or when "the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty", § 3.2(b)(2). Jones had been convicted of burglary (twice), assaulting a prison guard, and reckless homicide. The trial judge invoked the statute on account of these convictions and on account of the gunfire, explaining:
The court finds that [Jones's] conduct constitutes a heinous crime in that the commission of that offense was accompanied by brutal and heinous behavior indicative of wanton cruelty. The court finds that the discharge of the weapon in close proximity to the face and head of Deputy Tjarks was an extremely brutal act, one which only by the grace of God did not result in homicide, and certainly was not due to any mercy on the part of [Jones] that it did not result in a homicide.
The Appellate Court of Illinois affirmed the sentence, People v. Jones, 73 Ill. App. 3d 99, 391 N.E.2d 767, 29 Ill. Dec. 342 (4th Dist. 1979), on the "brutality" ground alone. The prior convictions did not count, the court observed, because para. 1005-5-3.2(b)(i) refers to convictions "in Illinois" and Jones's were in Wisconsin. The shooting, however, the court thought enough to invoke § 3.2(b)(2). Noting that "[t]here is no case in Illinois called to our attention which defines 'exceptionally brutal or heinous behavior indicative of wanton cruelty'" (391 N.E.2d at 769), the court turned to the definition of "wanton" given in Bartolucci v. Falleti, 382 Ill. 168, 174, 46 N.E.2d 980, 983 (1943), a definition focusing on the creation of unnecessary risk and excluding any mental element. The court thought that Jones's conduct satisfied the definition of "wanton" in Bartolucci and affirmed the sentence, rejecting a more restrictive interpretation of an enhancement statute that had been adopted by the Supreme Court of Florida. 391 N.E.2d at 770, disagreeing with Slate v. Dixon, 283 So.2d 1 (1973).
The Supreme Court of Illinois declined to review this decision. Two years later, however, when it first construed the enhancement statute, it adopted a definition very similar to the one the appellate court had rejected in Jones's case. People v. LaPointe, 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353, 59 Ill. Dec. 59 (1981). It defined "heinous" as "hateful or shockingly evil" and "brutal" as "grossly ruthless" or "cruel and cold blooded". Subsequent decisions applying LaPointe show that it is most unlikely that Jones's conduct would today be an adequate basis for an enhancement under § 3.2(b)(2)--at least not without proof that Jones was trying to kill the deputy sheriff. See, e.g., People v. Kane, 140 Ill. App. 3d 928, 489 N.E.2d 500, 95 Ill. Dec. 279 (1st Dist. 1986) (defendant shot cab driver during a robbery; enhancement held inappropriate); People v. Reynolds, 116 Ill. App. 3d 328, 451 N.E.2d 1003, 71 Ill. Dec. 849 (2d Dist. 1983) (defendant put gun to victim's head; enhancement held inappropriate).
Jones might have returned to the courts of Illinois, arguing along the lines of Davis v. United States, 417 U.S. 333, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974), that the change in the law called for a reduction in his sentence. Illinois does not appear to entertain such contentions, however. See Ill. Rev. Stat. ch. 110 para. 10-102; People v. Clark, 84 Ill. App. 3d 186, 405 N.E.2d 450, 452, 39 Ill. Dec. 697 (3d Dist. 1980); People ex rel. Berlin v. Twomey, 328 N.E.2d 58 (1st Dist. 1975). So Jones filed a petition for a writ of habeas corpus in federal court. There he attempted to argue that the 60-year sentence violated the Cruel and Unusual Punishments Clause of the eighth amendment, applied to the states through the fourteenth. As Jones had not made such an argument on direct appeal, the district court concluded that the claim was barred under Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). See Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Jones has abandoned the point on appeal, so we shall not have to decide whether to follow United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985), which holds that no sentence less than life without possibility of parole is disproportionately high for a felony. The proposition that "disproportionality" analysis depends on matching kinds of sentences (death, cadena temporal (see Weems v. United States, 217 U.S. 349, 54 L. Ed. 793, 30 S. Ct. 544 (1910)), denationalization, life without parole, life with parole, terms of years, fines) to categories of crimes (murder, treason, violent felonies, fraud, traffic offenses)--rather than on inquiring case by case whether the punishment fits the crime--has its attractions on both historical and prudential grounds. It is not, however, a subject we need to explore today.
What Jones preserved in state court was the argument that para. 1005-5-3.2(b)(2) does not authorize an enhancement for the kind of conduct in which Jones engaged. The district court concluded that the Appellate Court of Illinois had made an error of Illinois law by failing to anticipate the holding of LaPointe. An error of state law is not enough to issue a writ of habeas corpus, for 28 U.S.C. § 2254(a) provides that the writ may issue "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." "A federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). See also, e.g., Smith v. Phillips, 455 U.S. 209, 221, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982); Mosley v. Moran, 798 F.2d 182, 185 (7th Cir. 1986); Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir. 1983); United States ex rel. Hoover v. Franzen, 669 F.2d 433, 436-37 (7th Cir. 1982). So the district court needed a hook to turn the violation of state law into a violation of the Constitution. This it found in the principle that there must be evidence of each element of the offense sufficient to convince a rational trier beyond a reasonable doubt, a principle enforceable on collateral attack. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Under a correct interpretation of Illinois law, the district judge concluded, a sentence may be enhanced only for the most wanton and gross cruelty; a rational trier of fact could not conclude beyond a reasonable doubt that the evidence satisfied the standard of LaPointe; therefore the Constitution requires Jones to be resentenced. The court issued a conditional writ, to become absolute unless Illinois resentenced Jones within 120 days.
This method, however, is simply the vindication of the "correct" state law with surplus intermediate steps. Forbidden by the language of § 2254 to enforce state law directly, the district court traveled a route that turns every violation of state law into a violation of the Constitution. This could not have been what either Congress or the Supreme Court had in mind when providing for collateral attack on the basis of violations of federal law, but not of state law. It has long been understood that a state may violate its own law without violating the Constitution, e.g., Gryger v. Burke, 334 U.S. 728, 731, 92 L. Ed. 1683, 68 S. Ct. 1256 (1948): "We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question." See also, e.g., Garner v. Louisiana, 368 U.S. 157, 166, 7 L. Ed. 2d 207, 82 S. Ct. 248 (1961) ("We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State is [sic] when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court."); Hebert v. Louisiana, 272 U.S. 312, 316, 71 L. Ed. 270, 47 S. Ct. 103 (1926); Patterson v. Colorado, 205 U.S. 454, 459-61, 51 L. Ed. 879, 27 S. Ct. 556 (1907).
Knowing how this must come out, and seeing how to get there in light of Jackson, are two different things. For Jackson can be seen as doing what Pulley, Smith, Garner, and many other cases said could not be done. Since evidence can be sufficient only in relation to a rule of law, a declaration that evidence is insufficient means either that (a) the tribunal did not understand the law, or (b) the tribunal misapplied the law. In either case, it seems, Jackson calls for a court to review state law and, having found a violation, to supply a federal remedy. Since the Court disclaimed any such power in Jackson itself, however, 443 U.S. at 324 n.16, this cannot be the right approach. See Deborah Jones Merritt, Federal Review of the Evidence Supporting State Convictions, 79 Colum. L. Rev. 1577, 1585-89 (1979); John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979).
Jackson assumes that the state has correctly defined its own law. A review of the evidence ensures that states stick to their legal interpretations, while they are in force. Criminal proscriptions must be announced in advance of the conduct (the Ex Post Facto Clause sees to that) and must be adhered to until disavowed in public. A retroactive change by a legislature violates the Ex Post Facto Clause; an equally retroactive substantive change by the courts violates the Due Process Clause. See Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964); Marks v. United States 430 U.S. 188, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977). Announcing one legal rule while applying another (by overlooking a factual deficiency under the announced rule) presents the same problem as an unannounced change in the legal rule: in either case the accused could not have known the law's requirements when he acted.
We can now see one problem with the district court's approach. People v. Jones did not suddenly change state law. It was the first published interpretation of para. 1005-5-3.2(b)(2). No one could have relied on a different view until after LaPointe in 1981. Words such as "wanton" do not have a single, natural meaning creating reliance interests on their own. And the district court is not authorized to say that People v. Jones was wrong even when announced in 1979. Jones and the State of Illinois litigated the meaning of § 3.2(b)(2), and the state won. The state court issued a reasoned opinion. (Contrast Cole v. Young, 817 F.2d 412 (7th Cir. 1987), which depends on the absence of a reasoned disposition by the state court.) It has thereby established the meaning of state law for these parties. Hicks v. Feiock, 485 U.S. 624, 99 L. Ed. 2d 721, 108 S. Ct. 1423, 56 U.S.L.W. 4347, 4349 (U.S. 1988); West v. American Telephone & Telegraph Co., 311 U.S. 223, 238, 85 L. Ed. 139, 61 S. Ct. 179 (1940). A change of law does not permit relitigation of a settled question, Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981), at least not without a ...