Jackson v. Miller

• Citation: 260 F.3d 769
• Decision Date: 08 August 2001
• Docket Number: No. 98-3736,98-3736
• Parties: (7th Cir. 2001) Marshall Jackson, Petitioner-Appellant, v. Charles B. Miller, Superintendent, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 769

260 F.3d 769 (7th Cir. 2001)

Marshall Jackson, Petitioner-Appellant, v. Charles B. Miller, Superintendent, Respondent-Appellee.

No. 98-3736

In the United States Court of Appeals For the Seventh Circuit

Argued November 9, 2000

Decided August 8, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 56--Allen Sharp, Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Bauer and Kanne, Circuit Judges.^*

Kanne, Circuit Judge.

On June 4, 1980, a jury found Marshall Jackson guilty of robbery, attempted murder, and of being a habitual offender under Indiana's recidivist statute. See Ind. Code sec. 35- 50-2-8 (1998). At sentencing, the judge enhanced Jackson's forty-year sentence by thirty years because of Jackson's status as a habitual offender. Jackson contends that the resulting seventy-year sentence was improper because one of the two convictions that the jury relied upon to make the habitual offender determination was obtained in violation of his Sixth Amendment right to counsel. He advanced this claim, among others, in a petition for a writ of habeas corpus in the district court, see 28 U.S.C. sec. 2254, and the district court denied the petition. We granted Jackson's request for a certificate of appealability and certified the following issue for appeal: "Was the Petitioner denied counsel in violation of the Sixth Amendment?"¹ We now affirm.

I. History

On March 3, 1975, Jackson and his brother, Louis Jackson, pleaded guilty to theft in a Lake County Superior Court. Several weeks later, Jackson and his brother, represented by counsel, appeared in court for sentencing on March 27, 1975. After listening to statements by Jackson, Louis, and their attorney, the judge stated: "The Court . . . now sentences both defendants to not less than one (1) nor more than ten (10) years and orders them committed to the Department of Corrections for assignment to a proper institution. . . . Execution of sentence is withheld until April 25, 1975." Tr. of Marshall Jackson Sentencing H'rg at 3. Jackson appeared in court on May 30, 1975 for execution of his sentence.² Although the record does not include a transcript of that proceeding, the court's minute entry indicates that Jackson appeared without counsel "for the reason that the attorney previously representing him is no longer in the practice of law." Minute Order at 12. Because the record does not contain a transcript of the May 30 appearance, it is unclear whether or to what extent the court addressed the fact that Jackson did not have an attorney present. The court's written order on that date simply states: "The Court after reviewing the pre- sentence investigation now sentences the defendant, Marshall Jackson, to not less than one nor more than ten years. Sentence suspended. The Defendant is placed on probation for a period of two years." Id.

Approximately five years later, on June 4, 1980, a jury found Jackson guilty of attempted murder, armed robbery, and of being a habitual offender under Indiana's recidivist statute. The jury's determination that Jackson was a habitual offender--based partially on the above- described 1975 theft conviction-- increased Jackson's forty-year sentence by an additional thirty years for a total sentence of seventy years. On direct appeal, the Indiana Supreme Court affirmed Jackson's conviction as well as his sentence. See Jackson v. State, 426 N.E.2d 685 (Ind. 1981).

Several years later, on May 10, 1988, Jackson, pro se, filed a petition in state court for post-conviction relief from the 1975 theft conviction. He alleged, inter alia, that he was denied the right to counsel at sentencing because counsel was not present at the May 30, 1975 appearance. The trial court found that Jackson had waived his Sixth Amendment claim by failing to incorporate his original and first amended petitions into his subsequent amended petitions and, as such, did not address the merits of the issue.

On appeal, the Indiana Court of Appeals found that the trial court erred in refusing to consider the claims raised in Jackson's original and subsequent amended petitions. See Jackson v. State, 676 N.E.2d 745, 748-50 (Ind. Ct. App. 1997). The Indiana Court of Appeals rejected Jackson's claim on the merits, however, finding that the absence of counsel at the May 30, 1975 proceeding was not a violation of Jackson's right to counsel, and even if it was, that Jackson was not prejudiced. See id. at 751-52. To support this conclusion, the Indiana Court of Appeals relied on two Indiana cases, Guajardo v. State, 544 N.E.2d 174, 177 (Ind. Ct. App. 1989) (holding that reversal was not required where defendant had already served out his sentence because the error had been mooted and the denial of counsel at sentencing did not affect the validity of the underlying conviction), and Ford v. State, 386 N.E.2d 709, 714 (Ind. Ct. App. 1979) (holding that even if counsel's inability to address the court on defendant's behalf at sentencing was a violation of defendant's right to counsel, it did not prejudice the defendant because his sentence was mandated by statute). See id. The court observed:

Although Jackson was not represented by counsel on May 30, 1975, he appeared for sentencing on March 27, 1975. Jackson's attorney was present and spoke on his behalf at the sentencing hearing of March 27, 1975. The transcript of the March sentencing indicated that the trial court sentenced Jackson to not less than one year nor more than ten years and ordered him committed to the Department of Correction for proper assignment. Although the execution of the sentence was withheld, the trial court ultimately suspended the entire sentence and placed him on probation for two years. Jackson acknowledged at his guilty plea and initial sentence hearing that he would receive a one to ten year sentence. Even if Jackson's right to counsel was violated, Jackson has failed to show how he was prejudiced. At the time of Jackson's sentencing, [the statute he was convicted of violating] required the sentence that Jackson received. The fact that the trial court ordered all of Jackson's sentence to be suspended is diametrically opposed to his contention that he was prejudiced. Additionally, given that any error in sentencing would not affect the validity of the conviction, resentencing would serve no apparent purpose and Jackson offers none.

Id. On March 26, 1997, the Supreme Court of Indiana denied transfer. Jackson next filed a petition for state post- conviction relief from his 1980 robbery and attempted murder convictions, raising several grounds for relief including ineffective assistance of counsel at trial and ineffective assistance of counsel on appeal. The court denied relief on all but one of Jackson's claims,³ and Jackson initiated an appeal. Jackson failed to perfect the appeal, however, and voluntarily terminated it on June 9, 1998.

On March 30, 1998, Jackson, again pro se, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana challenging the use of his allegedly constitutionally infirm 1975 theft conviction to enhance his current sentence. The district court denied Jackson's petition. Jackson then filed an application for a certificate of appealability, and the district court denied his application. On December 6, 1999, we granted Jackson's request for a certificate of appealability on the following issue: "Was Petitioner denied counsel in violation of the Sixth Amendment to the Constitution at his May 30, 1975 sentencing hearing?"

II. Analysis

A. Availability of Federal Post- Conviction Relief

Jackson claims that his 1975 theft conviction was obtained in violation of his Sixth Amendment right to counsel; therefore, he claims that the use of that conviction to enhance his current sentence is unconstitutional. Because Jackson seeks to challenge his current sentence by attacking a fully expired conviction used to enhance that sentence, our first task is to determine whether federal post-conviction relief is available to a prisoner in Jackson's situation. To that end, we asked the parties to consider the applicability of our decision in Smith v. Farley, 25 F.3d 1363 (7th Cir. 1994), in which we held that federal review of a fully expired conviction that has been incorporated into a new enhanced sentence is limited to situations in which the petitioner had no access to collateral review because state procedures were "wholly absent, or . . . constitutionally deficient." Id. at 1370. Smith is no longer controlling on this issue, however, in light of two intervening Supreme Court decisions that address the availability of federal-post- conviction relief to petitioners who assert that an unconstitutional prior conviction was used to enhance their current sentence. See Daniels v. United States, 121 S. Ct. 1578 (2001) and Lackawanna County Dist. Att'y v. Coss, 121 S. Ct. 1567 (2001). We therefore direct our attention to those decisions.

In Daniels and Lackawanna, the Supreme Court confirmed that, in general, habeas relief is not available to petitioners who challenge a fully expired conviction used to enhance a subsequent sentence in a petition brought under 28 U.S.C. sec. 2254 or sec. 2255. See Daniels, 121 S. Ct. at 1583; Lackawanna, 121 S. Ct. at 1570. The Supreme Court held that "'if . . . a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant . . . may not collaterally attack his prior conviction'" through a motion under sec. 2254. Lackawanna, 121 S. Ct at 1573 (quoting Daniels, 121 S. Ct. at 1583).

Recognizing the "special status of Gideon claims," however, the Supreme Court carved out an exception to the general rule for ca...