Kenny K. Hatfield, Petitioner-appellant, v. Hon. Hunter Daugherty and Hon. Chris Gorman, Respondents-appellees, 25 F.3d 1048 (6th Cir. 1994)

The question presented in this habeas corpus appeal is whether equal protection and due process require a bifurcated procedure for the guilt and penalty phases in cases where the defendant is charged with a subsequent offense for driving under the influence of intoxicants pursuant to Ky.Rev.Stat.Ann. Sec. 189 A. 010 (Michie/Bobbs-Merrill 1993). Petitioner Kenny K. Hatfield was charged with, and convicted of, a second violation of Ky.Rev.Stat.Ann. Sec. 189 A. 010 (Baldwin 1984). Acknowledging that the Due Process Clause of the Fourteenth Amendment does not require bifurcated proceedings, see Spencer v. Texas, 385 U.S. 554 (1967), reaffirmed, Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983), petitioner nonetheless maintains that bifurcation is constitutionally mandated here because Kentucky now affords such procedures to defendants in all drug cases. See Clay v. Commonwealth, 818 S.W.2d 264 (Ky.1991), cert. denied, 112 S. Ct. 1304 (1992). Because we conclude that petitioner has procedurally defaulted on his equal protection claim, and that his due process claim has been answered by Spencer, we AFFIRM.

In April of 1991, petitioner Kenny K. Hatfield was arrested in Garrard County, Kentucky, and charged with a second offense in violation of Ky.Rev.Stat.Ann. Sec. 189 A. 010. Petitioner filed a pretrial motion to bifurcate as to the issues of guilt and penalty. The Garrard County District Court denied the motion on the basis of existing precedent. Petitioner then entered a conditional plea of guilty to a seven-day sentence, to be stayed pending appeal.¹  Petitioner appealed to the Garrard Circuit Court, which affirmed the district court. Both the Kentucky Court of Appeals and the Kentucky Supreme Court denied discretionary review. Upon exhaustion of his state court remedies, petitioner filed the instant petition for writ of habeas corpus. The district court denied relief, and granted a certificate of probable cause.

Petitioner was charged under the following version of Ky.Rev.Stat.Ann. Sec. 189A.010:

(1) No person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one's driving ability.

(2) Any person who violates the provisions of subsection (1) of this section shall:

(a) For the first offense, be fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500) or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days or both....

(b) For the second offense within a five (5) year period, be fined not less than three hundred fifty dollars ($350) nor more than five hundred dollars ($500) and shall be imprisoned in the county jail for not less than seven (7) days nor more than six (6) months and, in addition to fine and imprisonment, may be sentenced to community labor for not less than ten (10) days nor more than six (6) months.

(c) For the third or subsequent offense within a five (5) year period, be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), and shall be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months and may, in addition to fine and imprisonment, be sentenced to community labor for not less than ten (10) days nor more than twelve (12) months.

Ky.Rev.Stat.Ann. Sec. 189A (1984).² 

The Kentucky Court of Appeals has interpreted this statute as permitting the introduction of evidence of prior similar convictions during the guilt phase of the underlying charge. Ratliff v. Commonwealth, 719 S.W.2d 445, 449 (Ky.Ct.App.1986). See also Asher v. Commonwealth, 763 S.W.2d 153 (Ky.Ct.App.1988) (following Ratliff) . Despite its "fundamental agreement" with the appellants as to the "substantial prejudice [which would] unavoidably result from the premature introduction of evidence of this nature," the Ratliff court held that decisions by the Kentucky Supreme Court indicated that in cases similar to the one before it, evidence of earlier convictions was admissible regardless of its prejudicial effect. Id. at 449. The Ratliff court specifically referred to Wahl v. Commonwealth, 490 S.W.2d 769 (Ky.1972), in which the Kentucky Supreme Court allowed the introduction of the appellant's five earlier convictions under the state's former Habitual Criminal Act, Ky.Rev.Stat.Ann. Sec. 431.190. The Ratliff court noted that Sec. 431.190, like Ky.Rev.Stat.Ann. Sec. 189A, also provided for enhanced sentences for repeat offenders, but did not mandate trial by means of a bifurcated proceeding. Ratliff, 719 S.W.2d at 449 n. 3.³  The Ratliff court also pointed out that in Carver v. Commonwealth, 634 S.W.2d 418 (Ky.1982), the Supreme Court held that bifurcated trials in local option cases are not constitutionally mandated, but rather, as in persistent felony offender cases, are the product of statutory enactment. Thus, because Ky.Rev.Stat.Ann. Sec. 189A did not contain a requirement for a bifurcated trial, neither the constitution nor the statute would be violated by introduction of evidence of prior convictions before a determination of guilt on the underlying charge.

In 1987, the Kentucky Supreme Court decided Commonwealth v. Reneer, 734 S.W.2d 794 (Ky.1987), which signalled a shift in the court's thinking regarding legislative efforts to mandate bifurcation in criminal proceedings. In Reneer, the court held that because Ky.Rev.Stat.Ann. Sec. 532.055,⁴  which requires that the jury deliberate separately on the issue of guilt and punishment, is an encroachment by the legislature on the rule making authority of the Kentucky Supreme Court, it violates the separation of powers doctrine found in Section 28 of the Kentucky Constitution. Reneer, 734 S.W.2d at 796. Notwithstanding, the court found that Sec. 532.055 could be accepted under the principles of comity because it did not interfere with the orderly functioning of the courts. Id. at 797.

Just prior to the date set for petitioner's trial, the Kentucky Supreme Court issued Clay, 818 S.W.2d 264. In Clay, the court ruled that in all drug cases in which a subsequent offense is charged, no reference shall be made to the prior offense until the sentencing phase of the trial, and that the trial shall be bifurcated in accordance with the Truth-In-Sentencing Act (Ky.Rev.Stat.Ann. Chapter 532). The court observed that Ky.Rev.Stat.Ann. Sec. 218 A. 990,⁵  the provision for enhancing the penalty of subsequent offenders of drug-related offenses, is nothing more than a sentencing statute, and unlike the offense of possession of a handgun by a convicted felon, Ky.Rev.Stat.Ann. Sec. 527.040(1), which makes the proof of a prior conviction a necessary part of the guilt phase of the trial, the commission of the prior drug-related offense(s) is not an element necessary to determine guilt. The court also explicitly overruled its earlier decision in Smith v. Commonwealth, 707 S.W.2d 342 (Ky.1986), which held that the question of whether bifurcated jury trials are required in persistent felony cases is a matter for the legislature, and because there was no legislative requirement, bifurcation was not required in such cases. Id. at 343.

Petitioner argues that the Clay case "has now set out a rule of procedure for subsequent-offense drug trials." Petitioner therefore suggests that because Ky.Rev.Stat.Ann. Sec. 189A.010(2) is nothing but a sentencing statute, applicable to persons convicted of driving under the influence as defined in Sec. 189A.010(1), which does not require proof of a prior offense as part of the primary charge, the ruling in Clay should be applied here. Petitioner also points out that in overruling Smith, the Kentucky Supreme Court unequivocally laid to rest the reasoning in Smith, as well as in Wahl and Carver, and therefore Ratliff, that the question of bifurcated jury trials is a matter of public policy to be addressed by the legislature and not the courts, as is further reflected by the court's decision in Reneer, 734 S.W.2d 794. Thus, even if Ratliff were rightly decided, subsequent developments in Kentucky jurisprudence warrant its overruling. Petitioner contends that the Commonwealth has offered no rational reason why DUI defendants should be denied a protection afforded to other drug offenders.

Petitioner also argues that his due process rights have been violated because, although not constitutionally required to do so, Kentucky has decided that bifurcation is necessary to protect defendants who are charged with subsequent offenses. Thus, it may not arbitrarily deny that same protection to DUI defendants without offending due process.

Federal courts have jurisdiction to entertain a state prisoner's petition for habeas relief solely on the grounds that the prisoner's confinement violates the Constitution, law, or treaties of the United States. 28 U.S.C. § 2254(a) (1988); 28 U.S.C. § 2241(c) (3) (1988); Wright v. West, 112 S. Ct. 2482, 2486 (1992); Estelle v. McGuire, 112 S. Ct. 475, 480 (1991). In addition, a petitioner must "fairly present" the substance of each of his federal constitutional claims to the state courts before the federal courts will entertain them. 28 U.S.C. § 2254(b), (c). Anderson v. Harless, 459 U.S. 4 (1982); Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993) (citing Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir. 1991)), cert. denied, 113 S. Ct. 3001 (1993). If the petitioner has not raised his claims in the state courts, and is now procedurally barred from pursuing the claim in that court, the petitioner will not be allowed to present the claim in federal court unless he establishes cause to excuse the failure and actual prejudice to his defense at trial or on appeal. Id. (quoting Wainwright v. Sykes, 433 U.S. 72, 77-91 (1977)).⁶  A petitioner has "fairly presented" his claim to the state courts "by citing a provision of the Constitution, federal decisions using a constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Id. (quoting Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987)).

Our review of a district court's refusal to grant a habeas petition is de novo. Carter v. Sowders, 5 F.3d 975, 978 (6th Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3659 (U.S. Mar. 16, 1994) (No. 93-1500).

Although petitioner invoked the Equal Protection Clause in his appeal to the Garrard County Circuit Court, he failed to raise it in his motions for discretionary review⁷  with both the Kentucky Court of Appeals and the Kentucky Supreme Court.⁸  Ordinarily, we would correct petitioner's failure to exhaust his state remedies by dismissing the petition without prejudice. Under Kentucky law, however, petitioner is now procedurally barred from raising this claim, see C.R. 76.20(2) (b),⁹  and he has failed to establish "cause and prejudice" for the procedural default. We therefore need consider only petitioner's due process claim. See Silverburg v. Evitts, 993 F.2d 124, 127 (6th Cir. 1993); Riggins, 935 F.2d at 792.¹⁰ 

In determining whether a state rule of criminal procedure violates the Fourteenth Amendment Due Process Clause, the proper inquiry is whether it violates the "fundamental elements of fairness." Carwile v. Smith, 874 F.2d 382, 385 (6th Cir.) (quoting Spencer, 385 U.S. at 563-64), cert. denied, 493 U.S. 943 (1989). See also Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993) ("While it is true that habeas relief cannot be granted simply 'on the basis of a perceived error of state law,' ... when an error rises to the level of depriving the defendant of fundamental fairness in the trial process, the claim is remediable on a petition for habeas corpus relief."), cert. denied, 114 S. Ct. 1317 (1994); Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988) ("The violation of a state statute or rule of practice does not, by itself, constitute deprivation of a right guaranteed by the Constitution of the United States.") (citations omitted). Spencer, of course, has settled the question of whether bifurcated jury trials are constitutionally mandated.¹¹  The Spencer court recognized the prejudice inherent in permitting the introduction of prior crimes evidence during the guilt phase of the current offense, "but reasoned that a defendant's interest in avoiding such prejudice is outweighed by the state's interest in trying all the issues in a one-stage trial." Lonberger v. Jago, 635 F.2d 1189, 1192 (6th Cir. 1980), reversed on other grounds, Marshall v. Lonberger, 459 U.S. 422 (1983); Murray v. Superintendent, Kentucky State Penitentiary, 651 F.2d 451, 453 (6th Cir. 1981) (quoting Jago) . As observed in Newton v. Commonwealth, 760 S.W.2d 100, 102 (Ky.Ct.App.1988), the practice of drawing the line for bifurcation between misdemeanor and felony offenses is justified by the "relatively less grave subject matter of misdemeanor offenses" and is not outweighed by the burden that would be added to the district court in requiring bifurcated proceedings in all misdemeanor cases.¹²  And we are ever mindful of the Supreme Court's admonition in Spencer that "a state rule of law 'does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.' " Spencer, 385 U.S. at 564 (quoting Mr. Justice Cardozo in Snyder v. Commonwealth, 291 U.S. 97, 105 (1934) (other citations omitted)).

Whatever the merits of petitioner's arguments that Ratliff and Asher are no longer viable after the Kentucky Supreme Court's rulings in Clay and Reneer, those arguments are "beyond the pale" of this court's proper function because the current rule is not prohibited by the United States Constitution. Spencer, 385 U.S. at 569; Lonberger, 459 U.S. at 438 n. 6 ("Central to our decision [in Spencer ] was the fact that the Due Process Clause does not permit the federal courts to engage in a finely-tuned review of the wisdom of state evidentiary rules...."). See also McGuire, 112 S. Ct. at 480 (federal habeas court cannot correct errors of state law).

For all the foregoing reasons, the judgment of the district court is AFFIRMED.