Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.ivan Jones, Petitioner-appellant, v. Robert Farley, Respondent-appellee, 83 F.3d 424 (7th Cir. 1996)Annotate this Case
Submitted April 17, 1996. *Decided April 17, 1996
Before CUMMINGS, BAUER and RIPPLE, Circuit Judges.
Petitioner Ivan Jones filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, challenging an expired state conviction for burglary which was being used to enhance his current state sentence for robbery. The district court denied the petition.
A state court defendant is only entitled to federal review of an expired state conviction that has been used to enhance a current sentence if he did not have the opportunity to fully and fairly litigate his challenge to the constitutionality of the prior conviction during his sentencing hearing or in a state post-conviction proceeding. Smith v. Farley, 25 F.3d 1363, 1365-70 (7th Cir. 1994), cert. denied, 115 S. Ct. 908 (1995). See also Tredway v. Farley, 35 F.3d 288, 293 (7th Cir. 1994), cert. denied, 115 S. Ct. 941 (1995). Jones challenged his prior conviction in a state post-conviction proceeding, in which he received appointed counsel, an evidentiary hearing, and appellate review. See Jones v. State, 536 N.E.2d 1051 (Ind.App.1989). Because Jones fully and fairly litigated his claim in state court, the claim is barred by Smith.
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a); Cir.R. 34(f). Petitioner-appellant has filed such a statement. Upon consideration of that statement the court has concluded that oral argument would not be helpful, and the appeal is submitted on the briefs and record