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September 5, 1986

A. L. LOCKHART, Director, Arkansas Department of Correction, RESPONDENT

The opinion of the court was delivered by: ROY


 Petitioner, James Leggins, was convicted on June 12, 1979, in the Pulaski County Circuit Court of two counts of aggravated robbery and was sentenced as a habitual offender to thirty (30) years imprisonment. On appeal, the Arkansas Supreme Court reversed, finding that the State's evidence presented during the sentencing phase of Petitioner's bifurcated trial was insufficient to support the jury's finding that Petitioner was a habitual offender. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979) (Leggins I). Consequently, the Arkansas Supreme Court ordered that the Petitioner's sentence be reduced to 10 years within 17 calendar days unless the State desired to try Petitioner again.

 The evidence which the Arkansas Court found to be insufficient in Leggins I was a Crittenden County Circuit Court conviction which read "James Ligion". This was offered to prove that Petitioner had two previous convictions, *fn1" prior to his 1979 aggravated robbery convictions. Under Arkansas law, the offense of aggravated robbery is a Class A felony which carries a penalty of not less than five (5) years nor more than 50 years, or life. Ark. Stat. Ann. §§ 41-901, 2102.

 The Arkansas Court in Leggins I recognized the doctrine of idem sonans, the rule that absolute accuracy in spelling names is not required if the names, though spelled differently, sound practically identical; but held that "Ligion" cannot be stretched to be Leggins. Thus, the State, having only offered evidence of two previous convictions, one of them being the "Ligion" conviction, failed to prove two valid convictions as required for penalty enhancement under Arkansas law. In dicta, the Court stated that if the State had submitted the Petitioner's indigency affidavit where he signed his name as "Liggion", there would have been sufficient evidence for the jury to find that Leggins was the same person as the "Ligion" who had previously been convicted in Crittenden County, Arkansas.

 The State retried Petitioner on March 14, 1980. He was again convicted of two counts of aggravated robbery. This time the State offered the Petitioner's affidavit of indigency (which Petitioner had signed "Liggion") into evidence as proof that the Petitioner, James Leggins, was the James Ligion previously convicted of a felony in Crittenden County, Arkansas. The jury found Petitioner to be a habitual offender on the basis of this evidence and sentenced him to two (2) terms of life imprisonment. This conviction was affirmed by the Arkansas Supreme Court. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980) (Leggins II).

 On May 16, 1985, Petitioner filed a pro se application in this Court seeking a federal writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that the conviction and sentence resulting from his second trial (Leggins II) violated his 5th Amendment rights against double jeopardy. Petitioner also alleges that his attorney's failure to object to the State's use of the Crittenden County conviction of James Ligion and his indigency affidavit to enhance sentencing violated his 6th Amendment rights to effective counsel.


 The Respondent, represented by the Arkansas Attorney General, has filed a response and motion to dismiss. Respondent does not deny that Petitioner's double jeopardy rights were violated. Respondent argues that this Court should not consider Petitioner's claim on its merits on the theory that Petitioner has deliberately bypassed State procedures for post-conviction relief, citing Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982), which reiterates the procedural default rule announced in Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Under Sykes, and Engle, a prisoner may not bring a habeas claim to federal court where he did not take advantage of State procedural and post-conviction remedies unless there was "cause" for his failure to do so and the Petitioner was "prejudiced" thereby. *fn2"

 The Respondent points out that the Petitioner did not raise double jeopardy or ineffective counsel as an issue in Leggins II nor seek post-conviction relief in State court, and that the three (3) year time limit for seeking post-conviction relief in State court has passed. *fn3" Respondent argues that the Petitioner cannot establish "cause" for his failure to assert his constitutional claims under these State procedures and that, as a result, Petitioner's habeas claim should be dismissed.

 "Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). Therefore, if the Petitioner's double jeopardy theory is so novel that there was no reasonable basis to assert it, the procedural bar under Sykes and Engle does not apply.

 It is clear that a prisoner, or his attorney, is not required to have a crystal ball enabling him to foresee an unprecedented constitutional claim in order to escape the procedural default doctrine. On the contrary, the Supreme Court in Engle stated the following:

We might hesitate to adopt a rule that would require trial counsel to exercise extraordinary vision or to object to every aspect of the proceedings in hope that some aspect might mask a latent constitutional claim. Engle, p. 131.

 The Court in Engle stated further "we are confident that the victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard . . .". Id., p. 135.

 In Ross, supra, the Supreme Court noted three (3) situations in which a claim would be so novel that counsel would not have a reasonable basis for asserting a claim:

1. A decision of the Court overruling established precedent;
2. A decision overturning a long-standing and widespread practice not previously addressed by the Court, but ...

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