Klimas v. Mabry, 78-1663

• Decision Date: 30 May 1979
• Docket Number: No. 78-1663,78-1663
• Citation: Klimas v. Mabry, 599 F.2d 842 (8th Cir. 1979)
• Parties: Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 842

599 F.2d 842

Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee.

No. 78-1663.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1979.

Decided May 30, 1979.

Richard F. Quiggle, Little Rock, Ark., for appellant.

Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief.

Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, ^* District Judge.

HEANEY, Circuit Judge.

Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. ¹ On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas's representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 43-2328. We reverse and remand.

Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. ² After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, ³ was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. ⁴ The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. ⁵ No objection to the introduction of this evidence was made.

Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively.

Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), Cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas's Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas's sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas's other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence.

Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. ⁶ The court believed that it was without jurisdiction, however, both because Klimas's petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Klimas's petition for lack of jurisdiction, and he now appeals.

To the extent that the District Court believed that it was without jurisdiction to consider Klimas's petition because of the United States Supreme Court's denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner's later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure P 4264 at 631 (1978).

We, therefore, turn to the more difficult question presented by this petition: whether Klimas's pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. ⁷ See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975).

We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas's accomplice and the prosecution's principal witness against him, did not rise to the level of the deprivation of a constitutional right. Klimas's counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court's ruling and since no further attempts were made by Klimas's counsel to elicit Weeks' possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas's constitutional rights which would justify the granting of habeas corpus relief.

We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41- 1005 or § 43-2330.1, ⁸ in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief.

Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff,...