Mills v. Jordan, 91-3767

• Decision Date: 19 November 1992
• Docket Number: No. 91-3767,91-3767
• Parties: Samuel D. MILLS, Petitioner-Appellant, v. D. Bruce JORDAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1273

979 F.2d 1273

Samuel D. MILLS, Petitioner-Appellant, v. D. Bruce JORDAN, Respondent-Appellee.

No. 91-3767.

United States Court of Appeals Seventh Circuit.

Argued Aug. 4, 1992.

Decided Nov. 19, 1992.

Michael T. Brody, Jerold S. Solovy, Barry Sullivan, Daniel S. Goldman (argued), Ruth A. Bahe-Jachna, Jenner & Block, Chicago, Ill., for petitioner-appellant.

David A. Arthur, Deputy Atty. Gen., Ronald J. Semler, Asst. Atty. Gen. (argued), Federal Litigation, Indianapolis, Ind., for respondent-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Samuel Mills received a two-year sentence for auto theft, which was enhanced by 30 years under Indiana's habitual offender statute, Ind.Code § 35-50-2-8. ¹ One of the predicate offenses for the enhancement was a 1965 Florida felony conviction for larceny of an automobile. Claiming that the 1965 larceny conviction was constitutionally defective, Mills petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed Mills' petition under Rule 8(a) of the Rules Governing Section 2254 Cases, holding that he procedurally defaulted on the issue of the constitutionality of the 1965 larceny conviction. This case concerns an attempt by Mills, who claims to be innocent of the crime for which he was convicted in 1965, to collaterally attack the 30-year enhancement of his sentence on the basis of the "miscarriage of justice" exception to the procedural default rule.

I.

Samuel Mills has been in and out of prison since 1965. Mills' present incarceration stems from a 1981 arrest in Indiana for auto theft. Based on his criminal history, he was also charged with being an habitual offender under Ind.Code § 35-50-2-8. In the first part of a bifurcated trial, a jury convicted Mills of auto theft. In the second part, the jury considered evidence of Mills' prior felony convictions. This evidence consisted of (among other things) certified copies of: Mills' sentence in Florida in 1964 for breaking and entering; Mills' judgment and sentence in Florida in 1965 for larceny of an automobile indicating that he received one year in prison; Mills' judgment and commitment in the Western District of Arkansas in 1967 for transporting a stolen motor vehicle in interstate commerce for which he received 30 months' imprisonment; and a court journal entry reflecting Mills' guilty plea in Ohio in 1978 for defrauding a livery. Mills also admitted on cross-examination that he was guilty of these offenses. Trial Tr. at 303. The jury returned a general verdict finding Mills to be an habitual offender. ² His two-year sentence for auto theft was thus enhanced by 30 years under the habitual offender statute.

In 1991, Mills filed a pro se petition for a writ of habeas corpus in the district court for the Southern District of Indiana. In his petition, Mills attacked the 1965 larceny conviction as unconstitutional claiming that he had received ineffective assistance of counsel and that his guilty plea was not knowingly and intelligently made. The court found that Mills had procedurally defaulted on these challenges to the 1965 larceny conviction by neither appealing nor collaterally attacking it. Finding no "cause" for this procedural default, the court dismissed his petition. Mills appealed, and this court ordered that counsel be appointed.

The parties seem to have accepted the proposition that there was a procedural default in Florida (with respect to the 1965 conviction) that bars federal habeas relief (with respect to the Indiana habitual offender conviction) unless cause and prejudice or a miscarriage of justice can be shown. Perhaps the conclusion that there was a procedural default is compelled by case law in this circuit. See Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir.1990). Thus, even though Mills' challenge to one of the predicate offenses upon which his present custody is based is cognizable in a federal habeas proceeding, Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990), the parties seem to have agreed that we may not reach the merits of his claim unless the "miscarriage of justice" exception applies. As a matter of first impression, there seems to be a real question whether any interest of the State of Florida is implicated in this proceeding. The State of Florida, of course, was not represented below, and the State of Indiana is relying upon an interest of Florida, which Indiana presumes to be a factor here.

A federal habeas petitioner has procedurally defaulted his claim when he has "exhaust[ed] his state remedies without obtaining any decision on the merits of his federal constitutional claim because he has failed to comply with state procedural rules on how the claim must be raised." Charles A. Wright, et al., 17A Federal Practice and Procedure § 4266 at 433 (2d ed. 1988). Although the Supreme Court has over the years greatly expanded the extent to which procedural default constitutes an adequate and independent state ground for affirming a conviction, compare Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) with Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the use of a state procedural bar for this purpose presupposes the existence of some state interest that would be trammeled were the federal court to reach the merits of the habeas petition. See Coleman, --- U.S. ----, 111 S.Ct. at 2559 ("It is the State that must retry the petitioner if the federal courts reverse his conviction.... [I]t is primarily respect for the State's interests that underlies the application of the independent and adequate state ground doctrine in federal habeas."). The procedural default doctrine thus derives from notions of comity. Wainwright, 433 U.S. at 83, 97 S.Ct. at 2504; Coleman, --- U.S. ----, 111 S.Ct. at 2554.

This case requires an unusual application of these principles. The State of Indiana clearly has an interest in enforcing its habitual offender statute, and the federal courts will not entertain on habeas any constitutional challenges to Mills' habitual offender conviction that were not pursued to the highest Indiana court. But no one contends that Mills has defaulted in Indiana; thus, Mills' incarceration cannot be justified upon the independent and adequate state ground of procedural default in the Indiana courts. Nevertheless, the district court held, and the parties apparently agree, that Mills failure to challenge his 1965 Florida conviction constitutes a procedural default sufficient to bar consideration of his habeas petition. The State of Florida is apparently the only one, other than Mills, of course, potentially interested in the 1965 conviction. Yet Mills served his Florida sentence, and it is difficult to see how Florida has any interest in preserving the vitality of the 1965 conviction for purposes of sustaining a subsequent habitual offender conviction in another state. Why then does procedural default, a doctrine rooted in federal-state comity, apply at all? This seems to us to be a puzzling question.

As noted, the procedural default rules, which are strict, serve important interests of federalism, but the rules do not appear to apply when federalism considerations are not present. See, e.g., Brecht v. Abrahamson, 944 F.2d 1363, 1372 (7th Cir.1991) (noting that federalism concerns are "at the forefront of any discussion of the scope of [federal] collateral review"). To the extent Indiana has interests, such as in correcting its own mistakes, Coleman, --- U.S. ----, 111 S.Ct. at 2555, the procedural default rules are intended to ensure that the federal courts will not run roughshod over them. Similarly, the Florida conviction in the case before us would be immune from collateral attack in the federal courts (on the basis of procedural default) were Mills challenging it as such. But, because the federal habeas attack is on an Indiana habitual offender conviction, there appears to be no obvious Florida interest involved. Mills' habeas petition does not threaten the procedural integrity of the Florida criminal justice system; hence, the logic of applying Florida procedural default rules in the absence of a Florida interest is not apparent. ³

Nevertheless, the argument that Florida has no further interest in a 1965 conviction in that state and that, therefore, a Florida "procedural default" is not a bar to considering Mills' claims on the merits has not been made and is thus waived. Both parties agree that there has been a procedural default and we must proceed with our analysis accordingly.

II.

A habeas petitioner can overcome a procedural default by showing either (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). On appeal, Mills does not dispute the district court's conclusion that he failed to show cause. Rather, he argues that dismissal on procedural grounds is wrong because it would result in a fundamental miscarriage of justice. The state responds that Mills has waived the "miscarriage of justice" argument by not presenting it to the district court in his habeas petition.

A. Did Mills Waive the "Miscarriage of Justice" Argument?

Generally, an argument not presented to the district court is waived on appeal. Smith v. Fairman, 862 F.2d 630, 634-35 (7th Cir.1988), cert. denied, 490 U.S. 1008, 109 S.Ct. 1645, 104 L.Ed.2d 160 (1989). However, Mills denies that he waived the "miscarriage of justice" argument. Conceding that he did not make this argument in the manner expected of experienced counsel, Mills nevertheless argues that he "clearly raised this issue by asserting his innocence in his habeas petition." Reply Br. 3.

In his ...