Dale v. Haeberlin

• Decision Date: 07 September 1989
• Docket Number: No. 88-5640,88-5640
• Citation: Dale v. Haeberlin, 878 F.2d 930 (6th Cir. 1989)
• Parties: Jack Allen DALE, Petitioner-Appellee, v. Glenn HAEBERLIN, Acting Warden, Kentucky State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 930

878 F.2d 930

Jack Allen DALE, Petitioner-Appellee, v. Glenn HAEBERLIN, Acting Warden, Kentucky State Penitentiary Respondent-Appellant.

No. 88-5640.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1989.

Decided July 3, 1989.

Rehearing and Rehearing En Banc Denied Sept. 7, 1989.

J. David Niehaus, Public Defender, Frank W. Heft, Jr. (argued), Louisville, Ky., for petitioner-appellee.

Frederic J. Cowan, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen. (argued), Frankfort, Ky., for respondent-appellant.

Before WELLFORD and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

Respondent, Glenn Haeberlin, the acting warden of the Kentucky State Penitentiary, appeals from a district court order granting prisoner Dale's petition for a writ of habeas corpus. The district court found that the Kentucky state courts violated the federal Constitution's ex post facto clause in sentencing Dale. Finding the district court's ex post facto analysis to be erroneous, we reverse.

I.

On the night of October 28, 1984, Dale was arrested in connection with the robbery of a gas station/convenience store in Jefferson County, Kentucky. Dale was charged with robbery in the first degree (Ky.Rev.Stat. Sec. 515.020) and with being a convicted felon in possession of a handgun (Ky.Rev.Stat. Sec. 527.020). At a jury trial, the jury found Dale guilty of the robbery charge, and recommended a sentence of fifteen years. In connection with the possession charge, the prosecution introduced evidence that Dale had been convicted of two felony charges in 1976. The jury found Dale guilty of the possession charge and recommended a five-year sentence.

As is appropriate under Kentucky law, the trial then moved to a second stage, in which the jury had to determine whether Dale's sentence should be enhanced due to his being a persistent felony offender. ¹ The court instructed the jury that only the robbery conviction could be enhanced. Over the defendant's objections, the court allowed the prosecution to introduce evidence of Dale's two 1976 convictions--previously used to help prove the felon in possession charge--to aid in establishing Dale's status as a persistent felony offender. The prosecution also offered uncontested evidence of three 1974 convictions. The jury found Dale to be a persistent felony offender in the first degree and enhanced his robbery sentence to twenty-five years. The judge ordered that the twenty-five year robbery sentence and the five-year felon in possession sentence be served concurrently.

Dale appealed directly to the Kentucky Supreme Court, arguing that the trial court's decision permitting the prosecution to use Dale's 1976 convictions in both the substantive and enhancement stages contravened Kentucky law as established by Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980). The Kentucky Supreme Court affirmed the trial court, expressly holding that it overruled its previous Boulder opinion to the extent that Boulder prohibited the use of a prior conviction both to prove felon status on a possession charge and to enhance a separate offense (robbery, in Dale's case). Dale v. Commonwealth, 715 S.W.2d 227 (Ky.1986). The court held that impermissible double enhancement occurred only where the prosecution used a prior conviction to prove the defendant's status for purposes of a felon in possession charge, and then used the same prior conviction to enhance the felon in possession sentence.

Arguing that the Kentucky Supreme Court violated the ex post facto clause of the Constitution (article I, section 10) by changing relevant Kentucky law and by applying that changed law retroactively, Dale petitioned the Kentucky Supreme Court for a rehearing. The Kentucky court denied this petition. After having thus exhausted his state remedies, Dale petitioned the United States Supreme Court for relief, but that Court denied his petition for certiorari. Dale v. Kentucky, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987). Dale then petitioned the United States District Court for the Western District of Kentucky for a writ of habeas corpus. The district court found in petitioner's favor, and the respondent appeals.

II.

Before determining whether the Kentucky Supreme Court violated the Constitution by retroactively applying an unanticipated change in state law, we must be certain that the opinion in Dale actually changed existing Kentucky law. Petitioner consistently has maintained that until the Kentucky Supreme Court issued its opinion in his case, the relevant principle of state law was contained in Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980). The defendant in Boulder was charged with both assault and possession of a handgun by a convicted felon. A jury found him guilty of assault and, because he had been convicted of a felony in 1976, guilty of being a felon in possession. At the separate, subsequent enhancement proceedings, the jury enhanced both the assault and possession sentences based on the 1976 conviction. The jury found the defendant to be a second-degree persistent felony offender. On appeal, the Kentucky Supreme Court reversed the assault conviction as having been grounded upon misleading instructions. Additionally, the court disallowed the enhancement of the possession offense, concluding that the same conviction could not prove both felon status and justify enhancement of the possession charge. Before sending the case back for a new trial on the assault charge, however, the court also made clear that, "[h]aving used the status as a convicted felon to convert otherwise non-criminal activity into a crime, the Commonwealth may not be permitted to use it to enhance the penalty on the first degree assault charge." Id. at 618.

While this language would seem to support Dale's argument that existing law prevented the trial court in his case from using his 1976 convictions both to prove felon status on the possession charge and to enhance the robbery sentence, respondent argues that this Boulder language did not necessarily describe the rule in Kentucky. Respondent argues that an intervening case decided after Boulder, but before Dale's arrest, limits Boulder's scope. Additionally, the holding in Boulder is arguably dicta.

Despite the respondent's claims, we think Boulder did establish the governing law up until the Dale opinion. The intervening case, Jackson v. Commonwealth, 650 S.W.2d 250 (Ky.1983), is not really at all similar to Boulder or to the instant case. In Jackson, a defendant was found guilty in 1980 of being a convicted felon in possession of a handgun. This 1980 conviction rested upon defendant's previous 1976 conviction on robbery charges. In 1981, the prosecution attempted to use both the 1980 and the 1976 convictions to enhance a burglary conviction. The court allowed this even though the 1976 conviction had been used in connection with the 1980 charge, expressly noting that the case was "factually different" from Boulder. The Jackson court's ruling that Boulder held "merely that when a single prior felony is utilized to create an offense or enhance a punishment at the trial of the second crime so created or enhanced, it may not be used at that trial to prosecute the defendant under KRS 532.080," id. at 251 (emphasis in original), does not alter the Boulder holding that is of relevance here.

Similarly unpersuasive is the claim that the critical language in Boulder is dicta. While it is true that the Boulder court reversed the defendant's assault conviction, and thus did not have to address the jury's enhancement of that conviction, the court recognized that the defendant was going to be re-tried on the assault charge. In prohibiting enhancement of the assault charge, then, the court was providing relevant instructions for the trial court on re-trial, not merely providing an unnecessary interpretation of the law. Additionally, the language the Kentucky Supreme Court used in Dale clearly indicated that the court believed it was bound by Boulder's holding unless it chose to overrule portions of Boulder. At the time of Dale's trial, Boulder established the controlling rule of law, and the trial judge's decision to allow enhancement of the robbery charge contravened the Boulder decision.

III.

Having determined that the Kentucky Supreme Court, in petitioner's appeal, clearly changed relevant Kentucky law, it remains to be seen whether this change and retroactive application to petitioner violated federal constitutional principles. ² Despite the vigorous arguments of petitioner and the district court's acceptance of these arguments, it is clear beyond peradventure that the Kentucky Supreme Court did not violate the proscriptions of the ex post facto clause. "The Ex Post Facto Clause is a limitation upon the powers of the Legislature ... and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977). However, Supreme Court precedent makes clear that the notion of fair warning, protected from legislative impairment by the ex post facto clause, is also a part of due process, so that the due process clauses of the fifth and fourteenth amendments restrict the ability of courts to retroactively apply new legal principles. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Thus, if the decision violated any constitutional right, it was Dale's right to due process.

This distinction is of more than definitional significance. The types of legislative actions prohibited by the ex post facto clause are well defined, as the "ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), q...