Jack Higgins v. Don Smith, Superintendent of Fulton Reception and Diagnostic Center , 991 F.2d 440 ( 1993 )

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This is a habeas corpus case. Petitioner asserts that he was given a sentence in excess of that permitted by state law because an amendment to Missouri’s drug laws that reduced the maximum possible sentence, see Mo.Rev.Stat. § 195.211, was applicable to his case but mistakenly not applied to it by his sentencing court. (See State v. Freeman, 791 S.W.2d 471, 473 (Mo.Ct.App.1990), holding that Mo.Rev. Stat. § 1.160(2) makes the relevant amendment applicable to petitioner.) The district court agreed with petitioner’s construction of state law (as we do), granted him summary judgment, and remanded the case to the relevant state court for resentencing. The State of Missouri appeals.

Respondent claims, first, that the district court erred in reaching the merits of petitioner’s case because he did not raise the sentencing issue in the state trial court, on appeal, or in his application for post-conviction relief. In response, petitioner invites our attention to our holding that a person sentenced under a statute not applicable to his case is “actually innocent” of the penalty imposed, and thus that any procedural bar is lifted. See Jones v. Arkansas, 929 F.2d 375, 380-81 (8th Cir.1991), applying Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). Petitioner argues that his circumstances qualify him for an application of the Jones principle.

It is not clear to us that Jones is still good law in the context of a noncapital case. See Sawyer v. Whitley, — U.S. -,-, 112 S.Ct. 2514, 2522-23, 120 L.Ed.2d 269 (1992). Even if it is, however, we disagree that it is applicable in this case. In Smith, 477 U.S. at 537, 106 S.Ct. at 2668, the case relied on by the Jones court, the Supreme Court cited an earlier holding that special dispensation was due to that narrow class of persons who could demonstrate that “ ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent,’ ” quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986). Here, petitioner points to no constitutional violation that resulted in his conviction (or in his sentence), merely a mistaken application of a state statutory provision. In Jones, 929 F.2d at 381, the constitutional violation was the application of a statute in an ex post facto fashion to the petitioner, and it was this violation that served both to lift the procedural bar and to allow him to win on the merits. In contrast, there was no ex post facto application of a statute to the present petitioner and, therefore, even if the procedural bar could be lifted by some other means, petitioner could not prevail on the merits. (Of course, ineffective assistance of counsel at sentencing, if any, could operate as cause for the procedural default, see Wainwright v. Sykes, 433 U.S. 72, 90-91, 91 n. 14, 97 S.Ct. 2497, 2508-09, 2508 n. 14; 53 L.Ed.2d 594 (1977), and thus cure it, but petitioner has failed to make this argument and there is therefore no such claim before us.)

Nor is Camillo v. Armontrout, 938 F.2d 879 (8th Cir.1991), relied on by petitioner, of any avail to him. The court in that case held that it was a violation of the due process guaranteed by the Fourteenth Amendment for a person subject to enhanced punishment for past criminal conduct not to be allowed to be present at the hearing at which the fact of past convictions is proved up. Id. at 881. That case raised a plain constitutional error and, moreover, the report does not reveal that procedural default was at issue.

We conclude, therefore, that the district court incorrectly applied Jones because pe-. titioner alleges nothing more in his habeas petition than an error in the interpretation and application of state law. It is not unconstitutional for a state court (or any other) to make a mistake, particularly if the relevant matter was never properly argued to it. If we were to hold that the mistake complained of here was a constitutional one, say, because it violates due process to incarcerate a person beyond his term, or offends the prohibition against cruel and unusual punishment to do so, then there would be no effective boundaries to habeas inquiries. Such a view would render nugatory the statutory injunction to entertain applications for habeas from a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” see 28 U.S.C. § 2254(a), because every substantial error in a criminal case would be constitutional-ized.

For the reasons indicated, we reverse the judgment of the district court.