Linam v. Griffin, 80-1532
| Decision Date | 09 August 1982 |
| Docket Number | No. 80-1532,80-1532 |
| Citation | 685 F.2d 369 |
| Parties | Harry E. LINAM, Petitioner-Appellant, v. M. Jerry GRIFFIN, Warden, New Mexico State Penitentiary, and Attorney General of the State of New Mexico, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Reber Boult, Asst. Federal Public Defender, Albuquerque, N. M. (Tova Indritz, Federal Public Defender and R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N. M., with him on the brief), for petitioner-appellant.
Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, N. M. (Jeff Bingaman, Atty. Gen., and Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, N. M., with him on the brief), for respondent-appellee.
Before SETH and DOYLE, Circuit Judges, and ANDERSON, District Judge. *
Following his conviction of the charge of forgery in two counts the defendant-appellant Linam was sentenced to two consecutive two to ten year terms in the state penitentiary of the State of New Mexico. Subsequent to that the state filed a supplemental information charging Linam as an habitual criminal pursuant to the N.M.Stat.Ann. § 31-18-5 (1978), which provides that:
Any person who, after having been convicted within the state of a felony or who has been convicted under the laws of any other state government or country, of a crime or crimes which if committed within this state would be a felony, commits any felony within this state not otherwise punishable by death or life imprisonment, shall be punished as follows:
A. Upon conviction of such second felony, if the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than half the longest term, nor more than twice the longest term prescribed upon a first conviction.
B. Upon conviction of such third felony, if the subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than three times the longest term prescribed upon a first conviction;
C. Upon conviction of such fourth felony, then such person must be sentenced to imprisonment in the state penitentiary for the term of his natural life.
The habitual offender hearing was held after his conviction and sentence to the two consecutive two to ten year terms for forgery. The jury found him to be the same person who was convicted of three prior felonies along with the two counts of forgery. There is nothing in the record as to the nature of the prior convictions.
Under § 31-18-5C Linam was given a life sentence and the forgery sentences were vacated. However, Linam appealed the conviction to the New Mexico Supreme Court, State v. Linam, 93 N.M. 307, 600 P.2d 253 (1979). His position there was that the state had the burden of proving that he had committed each felony after conviction for the preceding felony. At the habitual offender hearing, the state introduced photographs and fingerprint cards from the state penitentiary as to each of the three prior felonies, as well as certified copies of each judgment and sentence from 1962, 1968 and 1973. The prosecutor who tried Linam on the forgery counts testified that Linam was the same person who was convicted on those counts. The testimony of the records supervisor of the prison was that the photographic records from the prior convictions were those of the Harry Linam then being charged as an habitual offender.
Finally, the fingerprint expert stated that the prints he took at this hearing were those of the man convicted who was sentenced for the three prior felonies, by comparison to the prints in the past convictions. The state did not present evidence of the dates of commission of the prior felonies.
On the appeal referred to immediately above in the New Mexico Supreme Court it appeared that the question whether it must be proved that each felony was committed after conviction for the preceding felony was a question of first impression. Based on this the court reversed and remanded to the trial court for a second habitual offender hearing based on this new interpretation of the habitual offender statute. The Supreme Court found that no double jeopardy existed and as a result remanded the case for a second proceeding and based this on the fact that the habitual criminal adjudication did not constitute guilt of an offense. 600 P.2d at 256. Linam petitioned for rehearing on the efficacy of the remand citing the double jeopardy prohibition articulated in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Final judgment was entered and Linam's petitions for rehearing and subsequently for certiorari to the United States Supreme Court were filed. Both petitions were denied. Linam v. New Mexico, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979).
After that, based on his belief that the Constitution had been violated, Linam filed the present petition for habeas corpus in the Federal District Court for New Mexico claiming that the state supreme court's remand had placed him twice in jeopardy in violation of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).
After the filing of the habeas petition Linam was adjudged an habitual offender at the second proceeding and was given a life term. The federal district court dismissed the habeas petition stating that the double jeopardy contention lacked merit. The present appeal followed.
The issue to be determined is whether the double jeopardy clause of the fifth amendment bars a remand following appeal directed at obtaining evidence as to the dates of the prior commission of crimes in order to satisfy the interpretation of the New Mexico habitual criminal statute that there be proof that each felony was committed after conviction for the preceding felony.
The New Mexico habitual criminal statute § 31-18-7, now cited as 31-18-20, sets forth the procedural requirements to be followed where the defendant who is accused of a felony is charged under the Habitual Criminal Act. The custom in New Mexico is to proceed on a bifurcated basis. Following the conviction of a felony offense, where the defendant has at least one prior conviction of a felony, the district attorney must file a supplemental information and hold a jury hearing on the issue of commission by the defendant of the prior offenses. The habitual offender hearing may be held immediately after the trial on the substantive or "triggering" offense or it may be held in front of a new jury even some months after the substantive conviction. See e.g., State v. Garcia, 95 N.M. 246, 620 P.2d 1271 (1980); State v. Valenzuela, 94 N.M. 340, 610 P.2d 744 (1980).
Section 31-18-7 which sets forth the proceedings in habitual criminal cases provides for a second hearing following convictions on the issue of proof of prior offenses. In essence, it says:
The court in which a person has been convicted of a felony and charged as an habitual offender under the provisions of Sections 29-5 and 6 shall cause such defendant, whether confined in prison or otherwise, to be brought before it, and the court then informs him of the allegations contained in the information and of his right to have a trial as to the truth of the contention that he is the man named in the prior convictions and he is then asked whether he is the same person who is charged in the information. If he denies The hearing has to comply with the speedy trial requirement, that is, it must have been held within six months of the supplemental information. State v. Lopez, 89 N.M. 82, 547 P.2d 565 (1976). The jury must decide whether the defendant is the same person from the evidence presented. They are then presented with evidence as to the prior felonies and evidence that the accused on trial committed the prior offenses. The enhanced sentence follows without mitigation, save for the time already served.
it or refuses to answer or remains silent, his plea or the fact of his silence are entered of record and a jury is empaneled to inquire if the offender is the same person mentioned in the several records. If the jury finds that the defendant is the same person and that he has in fact been convicted of such previous crimes as charged, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, and that he has in fact been convicted of such crimes as charged, in that event the court shall sentence him to the punishment as prescribed in Section 29-5 (31-18-5 NMSA 1978) and thereupon the court deduct from the new sentence all time actually served on the next preceding sentence and the remainder of the two sentences shall run concurrent.
New Mexico's position is that the Habitual Criminal Act does not create a new offense, that it merely increases the sentence. State v. Nelson, 96 N.M. 654, 634 P.2d 676 (1981); State v. James, 94 N.M. 604, 614 P.2d 16 (1980). But many of the protections which are given to a defendant at trial are extended at this hearing. He has a right to counsel and, in addition, he is entitled to be present in accordance with state Rule 47(a), allowing the defendant to be present at every stage of the trial. This includes the voir dire of the jury picked for the habitual criminal hearing. State v. Garcia, 95 N.M. 246, 620 P.2d 1271 (1980). The New Mexico law calls for the application of criminal trial procedures insofar as possible. State v. Silva, 78 N.M. 286, 430 P.2d 783, 785 (Ct.App.1967).
There are no guides in New Mexico law on the quantum of evidence required for a jury finding that proves the validity of the past convictions and the identity of the accused. The...
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