The opinion of the court was delivered by: EISELE
GARNETT THOMAS EISELE, Chief Judge.
Petitioner Johnny Lee Nelson pled guilty to burglary, a class B felony, and misdemeanor theft, after taking $45.00 from a vending machine in 1979. Petitioner was then sentenced by a jury under the Arkansas Habitual Offender statute to twenty years imprisonment. The state court jury which sentenced Nelson did so on the basis of evidence of four prior felony convictions introduced by the state in the course of a separate sentencing proceeding subsequent to petitioner's plea of guilt.
In his habeas corpus petition now pending before the Court, petitioner asserts that he had earlier received a gubernatorial pardon from one of these four convictions and, therefore, the enhanced sentence is invalid.
In response the state initially argued that the petitioner's sentence for the felony conviction at issue had been commuted, not pardoned, and it thus was permissible to use that conviction to obtain the enhanced sentence. Upon further inquiry however, it became apparent that the petitioner had in fact been pardoned by an executive proclamation on November 13, 1964, of a 1960 rape conviction, relating to case number 9078 in Union County, Arkansas. The state now acknowledges the fact of petitioner's pardon and it is also undisputed that under Arkansas case law, a pardoned conviction may not serve as the basis for an enhanced sentence. Duncan v. State, 254 Ark 449, 494 S.W.2d 127 (1973).
After reviewing the updated record, the Court issued an order on September 20, 1985. Therein the Court indicated that although the petitioner's trial attorney made no contemporaneous objection to the use of the pardoned conviction, counsel's failure to object constituted ineffective assistance of counsel, and thus Wainwright, Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), would not prevent the Court from considering the petition. The Court further indicated that the revelation of the pardon made it likely that a writ of habeas corpus would be granted unless the state resentenced the petitioner. Before proceeding further, however, the Court appointed counsel to advise the petitioner of his legal rights and, in particular, to confer with him about the risks of going forward in view of the possibility that a resentencing of petitioner might result in his receiving a sentence in excess of twenty years.
The state subsequently expressed, through a letter to the Court, its intention to resentence the petitioner. This raised the prospect that the petitioner might well receive a longer sentence than the one rendered invalid by the pardon, since petitioner had other prior felony convictions not offered or introduced at the initial sentencing, and since he had received the minimum sentence within a wide possible range. Assuming that the state would be allowed to resentence the petitioner and that the state would then introduce other prior felony convictions not introduced in the previous sentencing proceeding, his attorney counseled petitioner against pursuing the habeas claim. Counsel reported to the Court that he had so advised his client but that the petitioner nevertheless desired to continue the case. Shortly thereafter the Court issued another order in which it indicated that if, after conferring with his counsel again, petitioner still wished to go forward, the Court would require the petitioner to appear so that the Court could satisfy itself that the petitioner understood the possible consequences of his decision. Prior to the date of any hearing, however, petitioner's counsel brought to the Court's attention the possibility that the state might be entirely barred from resentencing the petitioner as an habitual offender upon the present conviction.
Petitioner has raised a very serious issue which warrants careful reexamination of the case in light of the Double Jeopardy Clause of the Fifth Amendment. Having completed this reexamination, the Court now concludes that its earlier expressions suggesting that the state would be able to resentence the petitioner were erroneous. The Court now finds that the Writ of Habeas Corpus must be granted because the state failed to satisfy the evidentiary requirements necessary to sentence the petitioner as an habitual offender under Arkansas law. Ark.Stat.Ann. § 41-1001. The Court also finds that the Double Jeopardy Clause prevents the state from resentencing the petitioner under that law.
Before discussing the merits of petitioner's double jeopardy argument, the Court must first deal with two procedural hurdles that the state argues should prevent this Court from considering the merits of the petitioner's pleading.
In its original response to the petitioner's claim, the state contended that the Court may not review Nelson's habeas petition since the state court rejected his protest on the grounds that petitioner had failed to make a contemporaneous objection to the use of the questionable conviction. A prisoner may not bring a habeas claim to federal court where he did not comply with a state procedural requirement unless he is able to show that there was cause for the default and that actual prejudice resulted from the failure. Wainwright, supra. While Wainwright's "cause and prejudice" test is intended to deny the federal habeas claim to the defendant who "sandbags" at trial in order to preserve a second chance for acquittal in a federal forum, Id. at 2507-08, it is not an inflexible standard. "Cause" and "actual prejudice" are "not rigid concepts," and therefore the "victims of a fundamental miscarriage of justice" shall be able to satisfy the standard. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 1575, 71 L. Ed. 2d 783 (1982).
As the Court's earlier order indicates, petitioner here can show cause for failing to object to the use of the pardoned conviction. The Court believes that counsel's unfamiliarity with petitioner's trial record and counsel's failure to explore the issue once petitioner testified that he had been pardoned constitute "cause." It is beyond question that the petitioner himself made no deliberate decision to bypass any objection in the hopes of saving this argument for a federal forum. On the contrary, the petitioner claimed at trial that he had received a pardon and only reluctantly acquiesced in the prosecutors statement that his sentence had been commuted after the prosecutor insisted that the petitioner was confusing a commutation of sentence with a pardon.
It is questionable whether Wainwright should apply at all, since the petitioner personally made every effort to allow the Court and the prosecution to clear up the questionable conviction. The petitioner effectively objected to the use of the pardoned conviction. The Court believes that the petitioner should not be penalized for his inability to distinguish the technical legal difference between a commutation and a pardon. Under the circumstances his statement that he was pardoned was not withdrawn by a later statement on cross-examination that his sentence had been commuted. It would be understandable if the petitioner came to believe them to be the same since he had no legal education.
The state, by way of a letter to the Court, brings up the second procedural hurdle by arguing that the Court lacks jurisdiction to review the double jeopardy issue since the state has not yet tried to resentence the petitioner. The Court is not persuaded, however, that it must force the petitioner to be exposed to a possible resentencing before he may assert his constitutional right to be free from double jeopardy. To do so would be most unfair and would dilute this Constitutional protection which guarantees that one may not be exposed to the rigors and ordeal of a second trial-like proceeding. It is not just the outcome of the proceeding but the subjection to it that the Clause prevents. 355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). For this reason, courts have frequently allowed a habeas petitioner to advance his double jeopardy argument in anticipation of a resentencing. Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), Bullard v. Estelle, 665 F.2d 1347 (5th Cir., 1982). Thus, the Court finds that it may consider the merits of petitioner's double jeopardy claim.
The Court faces two questions on the merits of Nelson's habeas petition. The first of these concerns the matter of whether the Double Jeopardy clause of the fifth amendment of the United States Constitution, as applied to the states through the fourteenth amendment, see Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969), would ever apply to a sentencing procedure under the Arkansas Habitual Offender Act, Ark. § 41-1001 et seq. If the Double Jeopardy clause does extend to the state attempt to enhance a convicted defendant's sentence under this act, then the Court must determine whether the jury's reliance on the petitioner's pardoned conviction in this case constitutes trial error or is a matter of the sufficiency of proof. If the defect is merely reversible trial error, there is no double jeopardy and the state is free to resentence. If, on the other hand, the use of a pardoned conviction to enhance means that the jury's finding lacked a sufficient evidentiary basis, then the petitioner has been effectively acquitted on the question of enhancement, and double jeopardy would, therefore, preclude another hearing on the issue.
Application of Double Jeopardy to Sentencing
Until recently, the double jeopardy clause had never been applied to sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 2077-78, 23 L. Ed. 2d 656 (1969). Thus a defendant who was convicted a second time after the original conviction has been nullified might be sentenced after the second conviction to a stiffer penalty than he had received pursuant to the overturned conviction so long as the heavier sentence is not imposed as punishment for exercising the right to appeal:
In Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), the Supreme Court carved out an exception to this traditional inapplication of double jeopardy to sentencing. Without disturbing the prior line of cases like Pearce, the Court found that where the sentencing procedure "was itself a trial on the issue of punishment," the double jeopardy protection attaches. Bullington at 1858.
The petitioner in Bullington had been convicted of capital murder by a Missouri jury. Before the death penalty could be imposed, Missouri law required a second hearing in front of the jury wherein the state had the burden of proving beyond a reasonable doubt the presence of certain aggravating circumstances that would warrant the imposition of the capital sentence. Id at 1855. Under the statute, The defense could offer evidence of mitigation and a death verdict had to be unanimous. If the prosecution failed to obtain the death sentence, the defendant would receive a sentence of life imprisonment. Upon Bullington's conviction, the jury heard testimony from the government in its effort to obtain the death penalty. However, the jury refused to order Bullington's execution and he received a life sentence.
The trial court later set aside Bullington's conviction and ruled that he was entitled to a new trial. The state then indicated that if Bullington was convicted at retrial, it would again present evidence to support a death sentence. The defendant, claiming the protection of double jeopardy, objected and the Supreme Court agreed that since the jury had once refused to impose the death penalty, the state could not try that question again. Id. at 1857. While noting that ordinarily imposition of a particular sentence does not constitute an acquittal of any more severe sentence, the Court found a fundamental difference in this instance. Id. What set the Missouri sentencing statute apart from those to which the Supreme Court had consistently said that double jeopardy did not apply was its resemblance to the proceeding for deciding guilt or innocence:
The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court's cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented with a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.
In contrast, the sentencing procedures considered in the Court's previous cases did not have the hallmarks of the trial on guilt or innocence. In Pearce, Chaffin and Stroud, there was no separate sentencing proceeding at which the prosecution was required to prove -- beyond a reasonable doubt or otherwise -- additional facts in order to justify the particular sentence. Id. at 1858.
defendant is found guilty of the felony, the trial court, out of the hearing of the jury, shall hear evidence of the defendant's previous felony convictions or previous findings of the defendant's guilt of felonies and shall determine the number of prior felony convictions, if any. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support. Ark. Stat. Ann. § 41-1005(2).
As with the Missouri procedure at issue in Bullington, and like the proceeding to determine the defendant's guilt or innocence on the predicate offense, the prosecution seeking enhancement under the Arkansas Habitual Offender's Act has the burden of proving the prior convictions beyond a reasonable doubt. Section 1003 of the Act imposes this conventional prosecutorial burden of proof:
A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was ...