United States v. Dowd, 12600.

• Decision Date: 20 October 1959
• Docket Number: No. 12600.,12600.
• Citation: 271 F.2d 292
• Parties: UNITED STATES of America ex rel., Forrest Eugene SMITH, Petitioner-Appellant, v. Alfred F. DOWD, as Warden of Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

271 F.2d 292 (1959)

UNITED STATES of America ex rel., Forrest Eugene SMITH, Petitioner-Appellant, v. Alfred F. DOWD, as Warden of Indiana State Prison, Respondent-Appellee.

No. 12600.

United States Court of Appeals Seventh Circuit.

October 20, 1959.

Jerry P. Belknap, William P. Wooden, Indianapolis, Ind., for appellant.

John A. Pushor, Deputy Atty. Gen., Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for respondent-appellee.

Before HASTINGS, Chief Judge, and PARKINSON and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

The appellant Forrest Eugene Smith, hereinafter referred to as petitioner, filed a petition for a writ of habeas corpus in the District Court charging that his imprisonment in the Indiana State Prison is in violation of the Thirteenth and Fourteenth Amendments to the United States Constitution. The respondent, Alfred F. Dowd, Warden, filed a motion to dismiss the petition asserting it failed to state grounds on which relief can be granted. The District Court granted respondent's motion and dismissed the cause. Petitioner appealed contending the Court erred in granting the motion to dismiss.

Allegations of the petition, admitted for the purpose of the motion, established that the petitioner has exhausted all available remedies in the courts of Indiana. Petitioner's original conviction was affirmed by the Supreme Court of Indiana, Smith v. State, 227 Ind. 672, 87 N.E.2d 881 and the Supreme Court of the United States denied certiorari. Petitioner filed a petition for a writ of error coram nobis in the Indiana trial court presenting the identical question raised in his habeas corpus petition. It was denied. The Supreme Court of Indiana 237 Ind. 532, 146 N.E.2d 86 affirmed the denial and the Supreme Court of the United States denied certiorari. 357 U.S. 909, 78 S.Ct. 1156, 2 L.Ed.2d 1159.

Other material allegations of the petition are that the petitioner is a citizen of the United States; that the imprisonment complained of was imposed by a judgment of the Vigo County Circuit Court of Indiana, entered September 27, 1948, sentencing petitioner as a habitual criminal after trial and finding of guilt of the offense of vehicle taking. The court imposed a sentence committing petitioner for a period of not less than one year nor more than ten years and further ordering that petitioner "be and is hereby committed to the Indiana State Prison as a habitual criminal, to be confined there for a period of his natural life." Completion of the one to ten year sentence is alleged and it is asserted that continued imprisonment is depriving petitioner of his liberty in violation of the Thirteenth and Fourteenth Amendments.

Petitioner contends that the life sentence is not imposed as punishment for crime, and since all Indiana convicts are subject to hard labor¹ his continued imprisonment constitutes involuntary servitude in violation of the Thirteenth Amendment and by the same token an abridgment of his privileges and immunities as a citizen of the United States in violation of the Fourteenth Amendment.

Section 1 of the Thirteenth Amendment prohibits involuntary servitude except as a punishment for crime. It expressly provides:

"Neither slavery nor involuntary servitude, except as punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction".

The contested issue presented by this appeal is whether petitioner's present imprisonment, attributable solely to the life sentence imposed pursuant to the Indiana Habitual Criminal Act, constitutes punishment for crime.

The provisions of the Indiana Habitual Criminal Act under which the punishment was imposed (Burns' Ind.Stat., 1956 Repl., §§ 9-2207 and 9-2208) are as follows:

"Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life."

"To authorize a sentence of imprisonment for life under this act, the indictment or affidavit shall allege that the defendant has been previously twice convicted, sentenced and imprisoned in some penal institution, for felonies, describing each separately. If the trial jury, in their verdict, find these facts to be true, and convict such defendant of the third felony, the trial court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life."

Petitioner contends that the statute does not impose the life sentence penalty as punishment for the third offense but that it is a punishment imposed for acquiring the status of a habitual criminal; that it constitutes punishment for a status or condition and thus is not "punishment for crime" excepted from the ban of involuntary servitude contained in the Thirteenth Amendment.

The state or condition of being a habitual criminal is not a crime but it is a status or circumstance which affords a proper basis for classifying such individual as one subject to greater or additional punishment than would otherwise be imposed on the conviction of a subsequent offense. Goodman v. Kunkle, 7 Cir., 72 F.2d 334.

The language of Sec. 9-2207 that the person twice previously convicted and imprisoned for felony shall on a subsequent felony conviction "be deemed and taken to be a habitual criminal and * * * shall be sentenced to" life imprisonment neither expressly nor impliedly requires that the punishment be related to the status rather than to the last offense.

It is recognized that Sec. 9-2208 is part of the plan employed by Indiana for the purpose of assuring enhanced punishment of persistent offenders and utilizes and requires the imposition of separate and distinct sentences, one imposing the normal penalty prescribed by law for the particular offense involved and the other imposing a further penalty of life imprisonment. Goodman v. Kunkle, 7 Cir., 72 F.2d 334; Metzger v. State, 214 Ind. 113, 13 N.E.2d 519; Witte v. State, 228 Ind. 153, 90 N.E.2d 802; Witte v. Dowd, 230 Ind. 485, 102 N.E.2d 630, certiorari denied 344 U.S. 841, 73 S.Ct. 54, 97 L.Ed. 654. The fact that the statute employs the device of two separate and distinct penalties, the normal penalty for the offense last committed, plus an additional penalty of life imprisonment, does not, however, require that the latter be regarded as imposed as punishment for the status rather than for the offense last committed. In our opinion this unique, separate and distinct penalty feature of the Indiana statute does not have the effect of removing the life imprisonment penalty from the category of "punishment for crime". It may be imposed only when a status of habitual criminality has been attained by reason of the subsequent felony conviction. It is imposed as an incident to that conviction as enhanced punishment. It is the subsequent conviction which results in both the status of habitual criminal and the imposition of both the normal and the further or additional penalty of life imprisonment. Such penalty is imposed as an incident to a conviction of crime and in our opinion is punishment for crime excepted from the prohibition of the Thirteenth Amendment.

The Supreme Court of Indiana in Kelley v. State, 204 Ind. 612, 185 N.E. 453, 457, in sustaining the constitutionality of the Habitual Criminal Act against attack on grounds other than the Thirteenth Amendment observed:

"* * * It simply imposes a heavier penalty for the commission of a felony by one who had been previously twice convicted and imprisoned for the commission of a felony. The punishment is for the new crime only."

Petitioner regards Smith v. State, 237 Ind. 532, 146 N.E.2d 86, 87 as indicating a changed interpretation of the statute to the effect that the additional penalty of life imprisonment is imposed as punishment for the status of being a Habitual Criminal. In that case the Indiana Supreme Court in disposing of the identical question here presented said:

"However, the provision of the Indiana statute requiring the accused to be charged both with the commission of the third felony and with being an habitual criminal and to be sentenced upon both counts does not in our opinion violate either the 13th or 14th Amendments of the U. S. Constitution. The Habitual Criminal Statute does not impose punishment (life imprisonment) for an additional crime, but for the status or condition of being an habitual criminal. See Goodman v. Kunkle, 1932, 7 Cir., 72 F.2d 334; Metzger v. State, 1938, 214 Ind. 113, 13 N.E.2d 519.

"Appellant has conceded that the imposition of the penalty of life imprisonment alone for the third felony would be constitutional. We know of no valid reason why the legislature could not constitutionally add to the ordinary penalty for the felony an additional punishment, to-wit: life imprisonment, when the felony is committed by a third time offender who is thus classified as an habitual criminal."

We do not so interpret Smith v. State. The statement there made that "The Habitual Criminal Statute does not impose punishment (life imprisonment) for an additional crime, but for the status or condition of being an habitual criminal" was in our judgment intended as a reaffirmation of the court's previous holding in the Metzger case and our observation in Goodman v. Kunkle that the Act did not create any new or independent crime, nor attempt to make the status itself a crime. To interpret the court's language in the Smith case differently would be out of harmony with the authorities cited in conjunction therewith,...