Bernard Williams, A/K/A Anthony Sherrard v. Jack R. Duckworth, Warden, and Indiana Attorney General

factor, relevant” every “possibly consider should, making when Russell contends enough It is determination. informa- sufficient to consider the court exercise its it to enable

tion “to manner,” Unit- enlightened in an discretion 534, 537 699 F.2d Stephens,

ed States Cir.1983). record reveals in this case. ably did so district court reasons, the defendant’s above

For the are affirmed. sentence

conviction

Affirmed. WILLIAMS, Anthony

Bernard a/k/a

Sherrard, Petitioner-Appellant, Warden, DUCKWORTH, R.

Jack General, Attorney

Indiana

Respondents-Appellees. 83-1158.

No. Appeals,

United States Court Circuit.

Seventh April 1984.*

Submitted

Decided June 1984. En Rehearing Banc

Rehearing and Sept.

Denied Asst., Kalady, Legal Michigan

Joseph M. Ind., City, petitioner-appellant. * briefs, 14(f). Petitioner has Fed.R.App.P.; Circuit Rule preliminary examination of the After requested argu- oral tentatively such a statement and parties filed that it had notified statement, Upon of that consideration argument not be ment. would concluded that oral record, briefs, request for oral and the The notice the argument helpful in this case. to the court appeal is submitted is denied and might provided party file a "Statement 34(a), and record. on the briefs Argument.” See Rule as to Need Oral found, Gen., Steiner, ing he Deputy Atty. by jury, In- was the same to L. be David Ind., pursuant an habitual offender to Ind.Code respondents-appellees. for dianapolis, § 35-50-2-8.1 Williams was sentenced to PELL, CUMMINGS, Judge, Chief Before years imprisonment four on the theft SWYGERT, Cir- Judge, and Senior ‍​​​‌‌​​‌​‌‌‌‌​​‌​​​‌‌‌​​​‌‌‌​​​​‌​​​​​​​‌‌‌​​​‌​‍charge Circuit to a thirty consecutive term of Judge. years cuit as an habitual offender. appealed The petitioner to the Indiana SWYGERT, Judge. Senior Circuit Supreme Court from his conviction as an Williams, ap- petitioner, Bernard Pro se habitual offender. His sole claim of error petition of a writ of denial his for

peals the was there was insufficient evidence to petition, In his Williams corpus. habeas support finding that the he was an habitual there insufficient evidence asserts that was The Indianа offender. Court af he an habitu- support finding by was a to the conviction divided firmed court. § Williams (Ind. 424 N.E.2d 1017 offender. Ind.Code 35-50-2-8. al 1981). rejected that contention. For district court reasons, following we hold

the petition Williams then filed habeas support to a find- evidence was insufficient court, raising the the federal district same beyond a that Wil- ing reasonable doubt he had made in contention the Indiana Su- habitual offender. We re- liams was an preme Court. The district court dismissed grant petition- district court and verse the petition, the no basis for habеas request for habeas relief. er’s relief. petitioner challenges Because the suffi-

I. ciency presented of the evidence at the by a Petitioner Williams was convicted proceeding, habitual offender we will re- Superior presented pro- Allen view jury theft the the Indiana, separate County, proeeed- ceeding in a in some detail.2 portion may person is the in effect at find that the an habitual of- 1. The relevant hearing proved beyond ds the reads follows: the time of fender if the state has person doubt the accumu- Habitual offenders 35-50-2-8 (a) (2) may prior felony The state seek to convic- Sec. 8. lated two unrelated person any felony by alleging, sentenced as an habitual offender tions. separate page on a instrument, court, charging suggests that, rest of as a from the the state federal (2) prior person appellate the has accumulated two the defer to state court’s factual should findings felony person A unrelated the enumerat- absence to be an habitual offender shall be found 2254(d). exceptions ed listed in 28 U.S.C. § imprisoned for additional fixed term of Mata, 449 U.S. 101 S.Ct. Sumner (30) years, thirty added fixed to be to the term (1981). The state has enunciated L.Ed.2d 3, 4, imposed imprisonment section under general rule of deferral to court factual the 5, 6, chapter. or 7 of deferral, general findings. under This rule of (b) he and sen- After has convicted circumstances, may applied to certain even be felony after sentenc- tenced for committed claims, sufficiency of the evidence see Davis v. ing felony Franzen, Cir.1982); (7th 671 F.2d United has accumulated two unrelаt- Greer, ex rel. Green v. 667 F.2d States Cir.1981); However, ed convictions. count, a conviction 2254(d)(8) pro- although 28 U.S.C. § purposes of this subsec- does not vides the state court factual that deferral tion, if: findings findings inappropriate are where the aside; or it has been set supported by fairly The record not the record. which the has been it is one for fairly not the in the instant case does on was sentenced determination that Williams (c) the If the was convicted of felo- agree We with his conviction. do not second trial, ny jury jury reconvene for in a the shall has at- assertion that Williams state’s sentencing hearing; was to the court, if trial determinations of tacked the factual judgment guilty on a or the entered nature, claim, by very at- Williams’s its court. plea, court shall conduct sen- alone by asserting findings that there tacks factual hearing, tencing under IC 35-4.1-4.3. presented he (if that was (d) jury), show jury hearing no (if alone), conviction. hearing for the second is to the court court Thereafter, proceeding3 attorney com- occurred. The habitual offender testi- fied, upon a mоtion in limine examination of menced with documents relat- from mention- prevent state to defense charges, 1971 and 1975 the defendant ing the actual sentence charges appeared to be unrelated. The should he be found to be an would receive attorney testified that to the best of his granted offender.4 The knowledge, guilty plea had neither been and, upon request a for clari- state’s motion aside, appeal, set reversed on nor had a fication, per- the motion also ruled pardon been issued. mеntioning sentences that tained to appearing The next witness on behalf of previous on of his petitioner received Judge Busse, the state was Herman presiding judge petitioner’s at both evidentiary hearing began The judge and 1975 convictions. The was attorney calling represented who convictions, for shown docket sheets both forgery petitioner on a 1971 conviction. although the docket sheets were never in- attorney, testifying pursuant to a The sub- judge, troduced into evidence. The after poena, represеnted stated that he had Wil- sheets, being shown the docket indicated forgery charge. on a liams The petitioner entered guilty plea a attorney identified the defendant as the proceedings. the 1971 and 1975 both The person represented in same whom he judge testified both were con- pleaded and testified Williams had judge prob- victions. The indicated that he charge. attorney guilty forgery to the The ably would not remember the defendant. petitioner testified that the was sentenced testify He did that the docket sheets con- сharge. on the same The state introduced handwriting tained his and that the two copy accepting of the order defendant’s convictions unrelated. At were no time guilty plea. The order does reflect the judge questioned was about whether sentenced, petitioner fact was but petitioner actually been sentenced. merely sentencing sets date for the petitioner testified on his own behalf hearing. attorney also testified that to hearing. testimony attempted at the His knowledge charge the best of his the 1975 to show that his ‍​​​‌‌​​‌​‌‌‌‌​​‌​​​‌‌‌​​​‌‌‌​​​​‌​​​​​​​‌‌‌​​​‌​‍two convictions were against appeared defendant to be unrelated they related because stemmed both from forgery to the 1971 conviction. Upon his addiction to heroin. cross-exami- state, The next witness called petitioner nation the testified that he had again testifying. subpoena, under was the forgery been convicted of the 1971 both attorney represented Williams on a charge charge. and the 1975 theft Wil- charge. attorney 1975 theft identified liams testified that he had been serious person the defendant the same whom he trouble and that he had “served some represented attorney in 1975. The testified time.” petitioner pleaded guilty to the charge. attorney’s Pursuant identi- II. fication, document, the state introduced above, finding by jury judge A similar to the one mentioned where- guilty plea accepted. the defendant’s is an habitual offender is not a merely provides The document sets a criminal date but gives sentencing actually imposition no indication that enhanced sentence. challenge provide jury This is a direct to the stаte court’s 4. The statute does not discre- factual determination that there was sufficient tion in on an habitual offender presented that he sen- jury charged only count. The is with the deter- tenced conviction. second mination of whether the defendant is an habitu- al offender. provides 3. The habitual offender statute for a proceeding. proceeding The second bifurcated jury trying underly- is tried before the same 35-50-2-8(c). § offense. Ind.Code is to its own the record in that a an habit review of habitual The determination however, factual offender, proceedings. Twyman is a offender In ual fact, judge (Ind.1982), jury. either a or a for a 431 N.E.2d 778 trier Indi- proof for a that a The standard of ana stated that offender, as enunciat an habitual is reviewing claims of insufficient ev- [i]n statute, beyond a reason ed in idence, weigh does not this Court § 35-50-2-8(d). able Ind.Code questions evidence or resolve of credi- (Ind. N.E.2d Twyman bility, but to the looks 1982). inferences reasonable therefrom which the verdict. Smith v. initial issue must resolve One State, (1970) 401, 260 254 Ind. N.E.2d challenge to an of is whether a viewpoint If from that cognizable in a fed fender determination probative evidence of value from rule, which general petition. As eral habeas trier of fact could infer not review state federal court will sentenc guilty beyond defendant was fall within ing determinations that statuto Helm, being an 277, reasonable doubt habitual ry limits. v. 463 Solem U.S. [of offender], 3001, (1983); will affirm the L.Ed.2d we convic- 103 77 637 S.Ct. State, (1970) 263, Estelle, tion. v. 253 Ind. 445 U.S. 100 S.Ct. Glover Rummel v. 536, 657, 1133, (1980). 255 v. Taylor N.E.2d L.Ed.2d 382 Solem 63 (1973) 64, 291 N.E.2d 260 Ind. 890. Eighth Amendment cases Rummel were severity of the challenging the sentences Twyman, 431 N.E.2d at 779. We therefore imposed. The case involves a due instant whether, viewing must decide its process whether state met claim: state, light in the to the most favorable showing peti in that the burden of rational trier of fact could have found be- offender. A suffi tioner was an habitual yond petitioner that the reasonable doubt challenge ciency to a state of the anwas habitual offender. is a finding person that a recidivist cognizable proceeding. habeas in a federal III. Cir.1982), Estelle, F.2d 1021 French 692 v. evidence, Prior to a we review — U.S. -, denied, 103 S.Ct. rt. ce exactly must determine what state 2108, (1983). Likewise, the L.Ed.2d 313 beyond must demоnstrate in order to cognizable in claim made here is this habe person is reasonable that a doubt proceeding. as defines an habitual offender. The statute for federal court re The standard (b) follows; in offender section habitual sufficiency of the evidence claims view After he been convicted sen- has Virginia, is set v. 443 U.S. out Jackson felony committed after sen- tenced for a (1979). 61 L.Ed.2d 560 99 S.Ct. felony tencing prior for a unrelated con- whether, A court must determine in view viction, two accumulated has light in the most favorable rеcord How- prior convictions. prosecution, rational fact to the “no trier of count, ever, a does not conviction facts could found” the essential to if: purposes this subsection beyond a habitual offender determination aside; set has been at Id. S.Ct. reasonable it is has one for which apply Virginia 2791. We the Jackson v. issue because standard to “prior Implicit description in the unre- an habitual requires offender purposes of by proof beyond lated conviction” supported must be are both the Estеlle, statute con- French habitual offender doubt. See v. sentencing. The Indiana and the n. Su viction 692 F.2d at 1024 Indiana interpreted Supreme Court has preme applies a standard similar to Court in that manner. In Miller v. Virginia the one enunciated Jackson us, (Ind.1981),the Indiana twice sentenced.6 before N.E.2d then, the state is whether sustained its held that: Court showing petitioner was sen- burden sus- the statute that to clear from [i]t tenced on each of the two it, the must under State tain a sentence previ- had been the defendant show that record, Upon a review of the ously and twice sen- twice convicted conclude no rational trier of fact could felonies, (emphasis ... tenced beyond have found a reasonable doubt that original). petitioner was sentenced on the 1975 State, 456 N.E.2d theft conviction. The evidence that would In Id. at 342. Woods (Ind.1983), Supreme prove actually that he was simply missing from the state the ‍​​​‌‌​​‌​‌‌‌‌​​‌​​​‌‌‌​​​‌‌‌​​​​‌​​​​​​​‌‌‌​​​‌​‍trial record. The “the burden of noted that sheets, although present at criminal is docket of habitual proving the status hearing, were never introduced into evi convictions and sen solely by proof of met speculate dence. We cannot as to State, (1982) Ind., 436 whether Spivey v. tences. 61.”5, they concerning contained information sen N.E.2d Busse, Judge tencing. presiding judge privious' habitual offender Under the convictions, testify at both did not required to make a statute the state petitioner was sentenced on the charged as an showing that theft conviction and there is no indication imprisoned “had been offender proceeding that he ever testified that the sentencing prior to the com- upon the first complete. testimony Petitioner’s own offense and that he of the second mission time,” that he had “served does not lead to upon imprisoned the second sen- had been the conclusion that he had “served time” prin- tencing prior to the commission of on the theft conviction. As the dissent State, v. 417 N.E.2d cipal offense.” Miller notes, Supreme opinion the Indiana Court dispensed statute with at 342. The new petitioner may have time on unrelat served thereby requirement imprisonment, of The indicate ed offenses. record dоes not allowing finding being an habitual of that he “served time” on the theft convic who, example, offender for a State, tion. v. 424 N.E.2d at Williams Bobby suspended sentence. received See J., (Prentice, dissenting). 1020 § Small, Commentary, Ind.Code 35-50- J. State, 2-8; sentencing of on the Spivey v. 436 N.E.2d at 63. We note that certainly within the requirement The of was ex- theft conviction was State, prosecutor. A sentence for pressly grasp retained. Miller v. of the. require- demonstrated N.E.2d at 342. The state’s own the first convictionwas petitioner’s finding person prosecutor askеd first ment for be habitual when the represented him on the for- attorney, is that he was twice convicted and offender conviction, Anthony Habitual Sherrard Ber- 5. The Amended Information Of- said a/k/a sentenced____ Williams was fender itself indicates that the state must dem- nard onstrate defendant was twice convicted and not allow the use of a convic 6. The statute does per- twice sentenced. The Information reads in charge offender if it has for an habitual tion part: tinent one which the been set aside or either June, A.D., day ... On or abоut the 8 of pardoned. § has been Ind.Code 35-50- County at the of Allen and in the State (2). 8(b)(1) exceptions have and These two 2 — been Indiana, Court, Anthony of in the Circuit one defenses which construed to be affirmative Sherrard Bernard Williams was con- a/k/a by pleaded proved defendant. be must felony, forgery, victed of to wit: ... and (Ind.1981); v. 429 N.E.2d Havens upon Anthony based said Sher- It 424 N.E.2d at 1018. is not Williams rard Bernard Williams was sentenced a/k/a upon the state to that the con incumbent or that the defend has not been set aside viction Further, day Sep- on or about the 29th of Indiana courts ant has not been tember, 1975, Allen in the Circuit Court of interpreted require have not the statute Indiana, County, Anthony State of Sher- one proved as an affirmative lack of be rard Bernard was convicted Williams a/k/a defendant. See Williams v. defense theft, felony, upon of a to wit: ... and based State. petitioner had doubt that count, petitioner been was twice convicted whether gery attorney responded in the and twice The finding sentenced. that he sentenced. clearly testimony sup- affirmative habitual offender must therefore be beyond a reasonable doubt ported a set aside.8 on been petitioner is not the case That

forgery conviction. IV. agree with charge. theft We respect to the foregoing reasons, For the reverse we. Prentice, the author of dissent- Justice denial petitioner’s district court’s of who stated opinion, petition corpus. for a writ of Peti- habeas to patch this Court not the office of [i]t request tioner’s granted for habeas relief is inexperienced sometimes left holes unless elects to pursue the state the sen- so, may By doing counsel. careless tencing charge under the habitual offender which, an essential thread supplying be statute days. further within 90 fact, nonexistent. This not Id. court should also (cid:127) PELL, Judge, dissenting. Circuit simply, patch holes could have any question comity, Aside from al- of question.7 properly placed repaired by though it would seem that argues must defer to state that we just should never be aside brushed interpretation of its own court’s the state case, majority habeas opinion on and, accordingly, affirm the denial statute simply facts this case a meri- has found we, action. While petitioner’s habeas torious case for habeas relief with which course, proposition agree general agree. re- conclusion cannot I therefore court must defer to that a federal spectfully dissent. statute, state’s interpretation of the court’s The majority opinion recognized and People ex rel. Burnett United States agrees general proposition that a with Illinois, 619 F.2d the State of federal court must defer а state court’s denied, Cir.), 449 U.S. S.Ct. cert. however, statute, interpretation its own (1980), 66 L.Ed.2d holds that the Indiana here interpret did Supreme Court merely interpret did not the statute but found that evidence was sufficient but sup- to found the evidence was sufficient jury’s finding. The to the Indiana port jury’s findings. saying In that squarely did not address Supreme Court prove to that Wil- evidence was sufficient any of whether sen the issue unrelated prior liams had accumulated two merely required; it states the tencing was felony on its of that convictions review We are not bound evidence was sufficient. evidence, Supreme may ‍​​​‌‌​​‌​‌‌‌‌​​‌​​​‌‌‌​​​‌‌‌​​​​‌​​​​​​​‌‌‌​​​‌​‍Court find We that the that determination. its own directly interpreting prove beyond to a reasonable not been state failed case, requires offered Supreme when otherwise it could have Indiana 7. Court.now evidence, proof prior supported by proper appropriate without convictions be retrial Jeopardy evidence. Parol evidence alone insuf implicating record Clause. the Double Mor (the a prior State, (Ind.1982) to establish conviction ficient absent gan v. 440 N.E.2d 1087 showing proper are records unavaila judge parol to sufficient trial was ruled State, (Ind. Morgan v. 440 N.E.2d 1087 ble. prosecutor prove prior re convictions documents, 1982). ac Given available legal ruling). improper It is unclear lied on the sentencing easy would have been to demon tual petitioner’s would whether Indiana consider violating motion in without limine strate by Morgan. not to We will case be controlled any preventing of the actual amount of mention States, See v. United consider the issue. Burks received. the sentence (1978) U.S. S.Ct. 57 L.Ed.2d Supreme Court the is wherein the considered to no as whether We make determination sue, today, whether a not decide which we do may properly retry petitioner without im- insufficiency of barred reversal the evidence for Jeopardy rights. petitioner’s plicating Double Jeopardy light Double Clause of retrial of the in Supreme has held that where Indiana Court Washington also v. Duck the Constitution. See legal ruling improper judge a trial has made worth, (N.D.Ind.1983). F.Supp. 513 proving thereby precluding the state from its by say- doing reading so A careful implicitly of this statute reflects but statute applied eligibility to the facts being for conviction ing that that it had been sufficient by being of the case before offender comes about It a reasonable guilt beyond prior convicted of two unrelated felonies Supreme Court’s me that appears only proviso that neither convic- majority that of the contrary to analysis, tion has been set aside or has resulted in a of a only on the lack focused opinion which Indeed, pardon. majority opinion con- sentencing, placed the showing of direct cedes that the sentencing only implied being statutory offense on there gist of the description unrelated felo- lan- pursuant plain two convictions the. sentencing nies. The is only in the statute statute. guage of the Indiana in the indirect sense of timing as to when judgment of convictions have become portion of the statute The relevant Here, however, final. ques- there was no of the trial read as fol- at the time effect tion that the convictions in both cases were lows: judgments final and that the causes had offenders 35-50-2-8 Habitual completed. The judge been trial so testi- 8(a) may The state seek to have a Sec. fied. Williams v. 424 N.E.2d person sentenced as an habitual offender (Ind.1981). assume, Even if we how- felony by alleging, page on a for ever, there must be some direct evi- charging separate from the rest of convictions, sentencing dence of on both instrument, has accumu- controversy and there is no about the first (2) prior felony unrelated con- lated two appears conviction to me that A is found to be an victions. challenge this court should holding not imprisoned for habitual offender shall be Supreme of the Indiana thirty an additional fixed term of sufficient evidence on the years, to be added to the fixed term of for the second I conviction also. turn to 3, 4, imposed imprisonment under section the record in respect doing and in so 5, 6, chapter. or 7 of this accept down, adopt the standard as laid (b) After he has been convicted and approved and as majority opinion felony committed аfter case, Twyman v. 431 N.E.2d 778 unrelated (Ind.1982), in which the Indiana conviction, person has accumulated two. Court stated that: (2) prior However, count, conviction does reviewing of insufficient claims evi- [i]n subsection, if: purposes of this dence, weigh this Court does not aside; questions it has been set evidence or of credibili- resolve ty, but looks to the evidence and it is one for which the has which therefrom inferences State, support the verdict. Smith v. (c) If the was convicted of the 401, (1970) 254 Ind. 260 N.E.2d 558. If trial, jury jury in a the shall recon- viewpoint that there is from evidenсe of sentencing hearing; the if vene for the probative value from which a reasonable court, judgment trial was to the or the of fact could infer that a defendant trier guilty plea, was entered on the guilty beyond a reasonable doubt [of alone shall conduct the hear- being offender], an habitual we will af- ing, under IC 35-4.1-4.3. firm the conviction. Glover v. (d) (if jury hearing by jury), The the is 536, 657, Tay- 253 Ind. 255 N.E.2d (if hearing or the court the is to the court lor 260 Ind. alone), may find that the N.E.2d 890. only habitual offender if the state has added). Id. at 778 proved beyond (emphasis quoted that I reasоnable doubt have Twyman appears majority in had accumulated two from as it exception opinion emphasis of the majori- Sentence is inferences which the now set for October on reasonable at 1:30 P.M. existing in as this case. ty ignore seems to ' Sentencing was set for October 1975 and any to opinion give declines majority The Supreme pointed as the out the trial own statement significance to Williams’ judge had that these “testified causes time, although, of he that had served completed and there was no claim concedes, course, majority it is not as these judgments.” were not final actually had time important he served N.E.2d 1019. I fail to see how there given a sentence. Never- only that he be have judgment could been a final without theless, that he served time is the fact sentencing. the fact that there was a sen- indicative of These two themselves pro- instances tence. vide the inferences to be- reading testimony his A careful of seems yond a reasonable doubt that Williams in- provide me to full for a reason- to conviction, deed was for the 1975 serving inference that the of time to able event, proof, which related he referred related both which demonstrating timing purposes ‍​​​‌‌​​‌​‌‌‌‌​​‌​​​‌‌‌​​​‌‌‌​​​​‌​​​​​​​‌‌‌​​​‌​‍of convictions, being ones here involved. judgment finality the statute the of Williams, very beginning his di- at the second The conviction. existence of the gave testimony, after he his name and rect course, undisputed. second follows: address testified as in this case really No one contends true, Williams, Q. you Is Mr. it Williams was not sentenced 1975 and trouble have been some before? apparently question to that effect direct Yes, A. is. reason, attorney, to his 1975 for some trial prosecutor asking was not The’ asked. Q. exactly Do remember which you simple question would have obviated case was which? problem presented by this case. Be- No, exactly. A. inferences, however, clearly sup- cause Q. been in you Did—but some se- fact, undoubtedly the ported what was before, rious is that correct? trouble court has elevated form over substance Yes, A. served time. I have corpus. granting the writ of habeas Q. sрecific anything Is there to which offender, being sentence for an habitual you fact that have been you attribute notwithstanding provi- the various remedial in serious trouble before? capable substantially sions which are confinement, shortening periods a se- addiction, of Mainly A. heroin which one, not be vere should sentenc- But at have since been cured. unless the habitual offender time, present yes. Both did offenses proven beyond a reasonable crime is happen [Emphasis I was addicted. while hand, the other there is no On added.] of three convicted felo- Williams was jury correctly It to me that the seems span within of a decade. nies concluded, as did legislative judgment as to term Court, testimony that Williams from this issue of the sentence is not an before us. referring “time” for himself was “[b]oth only concern is whether Williams was Our the offenses.” process. due denied constitutional Also, as an jury exhibit before highest court the state held he was relating copy of court records certified under the improperly not convicted statute. conviction, the final lines of to the 1975 agree with that decision. follows: which read as prior pre-sentence had a Said defendant dispenses and now

investigation report, herein his re- investigation

with such

quest.

Case Details

Case Name: Bernard Williams, A/K/A Anthony Sherrard v. Jack R. Duckworth, Warden, and Indiana Attorney General

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 27, 1984

Citation: 738 F.2d 828

Docket Number: 83-1158

Court Abbreviation: 7th Cir.