Smith v. Farley, 92-1299

• Decision Date: 13 May 1994
• Docket Number: No. 92-1299,92-1299
• Citation: 25 F.3d 1363
• Parties: Darryl E. SMITH, Petitioner-Appellant, v. Robert FARLEY and Indiana Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1363

25 F.3d 1363

62 USLW 2798

Darryl E. SMITH, Petitioner-Appellant, v. Robert FARLEY and Indiana Attorney General, Respondents-Appellees.

No. 92-1299.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1994.

Decided May 13, 1994.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley (argued), Office of the Atty. Gen Federal Litigation, Indianapolis, IN, for respondents-appellees.

Before BAUER, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

This is an appeal from the denial of a petition for a writ of habeas corpus. Petitioner had requested habeas relief from his recent state sentence that had been enhanced based on an allegedly invalid prior state conviction. We affirm and hold that a federal court should not entertain a state prisoner's challenge to the constitutionality of a past conviction used to enhance a new sentence unless that prisoner has not been afforded by the state a full and fair opportunity to collaterally challenge that past conviction.

I. Background

In 1988, Darryl Smith was found guilty of robbery in an Indiana state court. In sentencing Smith, the Indiana court enhanced his ten-year prison term by thirty years under the state's recidivist offender statute. See Ind.Code Sec. 35-50-2-8.

Pursuant to Indiana law, Smith filed a petition for post-conviction relief ¹ in state court challenging the constitutionality of a 1974 burglary conviction--the conviction upon which his recidivist status was premised in part. In his petition Smith argued that his 1974 conviction for burglary was constitutionally invalid because it was based upon a guilty plea which Smith asserted was not knowingly, intelligently, and voluntarily made. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Smith also claimed that the lawyer who represented him at this plea hearing rendered constitutionally inadequate assistance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ²

In response to Smith's petition, an Indiana trial court considered the merits of his constitutional claims regarding his '74 conviction, determined that no error had been made in 1974, and denied post-conviction relief. The Indiana Court of Appeals and the Supreme Court of Indiana reviewed the trial court's judgment, and both affirmed the denial of Smith's petition. Subsequently, pursuant to 28 U.S.C. Sec. 2254, Smith filed a habeas petition in the United States District Court for the Northern District of Indiana presenting exactly the same challenges to his '74 plea that he already had argued before the Indiana courts. The district court denied Smith's habeas petition on the merits.

II. Analysis

As a threshold matter, the State of Indiana argues that the federal courts lack subject matter jurisdiction to hear a habeas corpus petition such as Smith's. We disagree. The habeas statute grants federal courts jurisdiction to entertain a petition for relief from a person who, at the time the petition is filed, is "in custody" for the conviction under attack. 28 U.S.C. Sec. 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1924-25, 104 L.Ed.2d 540 (1989). Because a person currently serving a sentence that was enhanced on the basis of a prior conviction is still in custody, he may challenge the enhancing conviction as constitutionally invalid even though that prior conviction's original custodial term has expired. Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). Thus, since Smith is again in custody, at least in part because of his '74 burglary, a federal court has jurisdiction over a petition challenging the constitutionality of that '74 conviction.

During oral argument inquiry was made whether this court's recent decision in United States v. Mitchell, 18 F.3d 1355 (7th Cir.1993) had implicitly endorsed an approach suggested by Judge Easterbrook that would prohibit, as a prudential matter, a defendant from challenging the merits of a prior conviction once his original sentence had been served. Cuppett v. Duckworth, 8 F.3d 1132 (7th Cir.1993) (en banc ) (Easterbrook, J., concurring), pet'n for cert. filed, Jan. 6, 1994. In Cuppett, Judge Easterbrook criticized the practice of allowing habeas petitioners to wage derivative collateral attacks ³ against state convictions that have been used to enhance their current sentences. See Cuppett, 8 F.3d at 1144 (Easterbrook, J., concurring). He concluded that a derivative collateral challenge to a prior state conviction is an instance in which a federal court should not exercise the full measure of its jurisdictional power to review the constitutionality of state convictions, at least where the petitioner had both the incentive and the opportunity to challenge the conviction while in custody for that conviction. Cuppett, 8 F.3d at 1145-48 (Easterbrook, J., concurring). He constructively argued that a better approach would be to limit habeas review to those cases in which the petitioner is claiming that a conviction which has already been ruled invalid on direct appeal or on direct collateral review has been used to enhance his sentence. Id. at 1146 (Easterbrook, J., concurring). Prior to Mitchell this circuit, however, had not adopted such an approach. See Cuppett, 8 F.3d at 1136, n. 1 (majority opinion); id. at 1149 (dissenting opinion). ⁴ Though informed by Judge Easterbrook's teachings, Mitchell did not implicitly change this position.

Mitchell held that a federal defendant cannot attack a prior state conviction at a federal sentencing hearing unless he can demonstrate that the prior conviction is presumptively void. 18 F.3d at 1360-61. The Mitchell court noted that the principal basis for its decision was that a federal sentencing hearing is an inappropriate forum for a fact-intensive inquiry into the validity of a prior state conviction. ⁵ Mitchell did suggest fora for challenging a prior state conviction--a direct appeal from the conviction itself or a collateral proceeding in state or federal court while serving the sentence for the conviction; however, Mitchell presents an admonition, not a requirement, as it never concluded that this list is exclusive. ⁶ The only forum that Mitchell found improper for challenging a prior state conviction was a federal sentencing hearing. ⁷ The issue principally addressed by Mitchell was not where a prisoner can obtain meaningful federal review of the validity of a prior state conviction, but rather where he cannot--in a federal sentencing hearing.

The fact that a forum, other than a sentencing hearing, existed for the defendant in Mitchell to raise his fact-intensive challenge to the validity of a prior state conviction is fundamental to our decision. According to Mitchell, the function of a federal sentencing court is to determine a proper federal sentence for a federal crime, not to approve, enforce, or vacate a prior state conviction. See 18 F.3d at 1361. Limiting the review of prior convictions at a federal sentencing hearing to those which are presumptively void ensures that the hearing will not be transformed into a mini-trial concerning the validity of prior convictions when alternative fora (a state collateral proceeding or an indirect collateral attack to the enhanced sentence in a Sec. 2255 motion) exist in which a defendant can challenge the constitutionality of prior state convictions whose effects are still felt. Id. at 1361-62. Although Mitchell limited the scope of review of a prior state conviction in one forum--a federal sentencing hearing--it carefully preserved the ability to obtain fact-intensive review of the conviction in an alternative forum--a state or federal collateral proceeding. Thus, Mitchell acknowledges that the scope of federal review of an enhancing state conviction may be restricted, but only so long as a fact-intensive review of the validity of the conviction is available, until used, in at least one forum.

We believe that such review should generally be available unless, a defendant has already exercised any earlier opportunity for a full and fair state collateral review, or review would be inconsistent with existing doctrines determining the circumstances under which such collateral review is available. ⁸ Because such a challenge is against the new use of a prior conviction--i.e. a challenge to the state's enhancement procedures--a defendant's failure to use an initial opportunity to obtain review of a state conviction--in a direct appeal or collaterally, while still serving the sentence--should not bar him from obtaining later indirect review of the conviction now being used in a wholly new manner. In Parke v. Raley, --- U.S. ----, ---- - ----, 113 S.Ct. 517, 522-23, 121 L.Ed.2d 391 (1992), the Supreme Court explicitly left open whether the Due Process Clause requires state courts to re-review guilty pleas which were later used for enhancement purposes. ⁹ Unless a defendant has already used his initial collateral review for his prior conviction, we believe that he ought to have a later opportunity to obtain such a review, in at least some forum, of the state court's use of the prior conviction to enhance a sentence for a new crime. Of course federal courts should only grant habeas review if that review is consistent with otherwise applicable doctrines determining the circumstances under which collateral review is available. We cannot insist that states disregard rules of finality and threaten that, if they adhere to the rules, we will not. We only say that if a defendant does not have access to a fair procedure in a state court affording him a review, on the merits, of the constitutionality of a prior conviction after it has been incorporated into a new, enhanced sentence, a ...