Alton D. Behlke v. Patrick Fiedler, Secretary of the Department of Corrections

6 F.3d 486

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 19, 1993
• Docket: 92-2786
• Status: Published

Opinions

PER CURIAM.

In 1989 Alton Behlke was convicted in Wisconsin state court of three counts of drug dealing. The judge sentenced him to the maximum sentence for those convictions. In 1984 Wisconsin had convicted Behlke of keeping a dwelling where drugs were sold and for possessing property with altered identification numbers. While in prison for the 1989 drug-dealing convictions, Behlke filed a petition for a writ of error coram nobis challenging his 1984 conviction. The trial court denied the petition, the Wisconsin Court of Appeals rejected Behlke’s appeal, and the Supreme Court of Wisconsin declined review of the case. Behlke filed a petition for a writ of habeas corpus in federal court, which the district court denied. Behlke now appeals.

The only issue that we need to address is whether the judge used Behlke’s 1984 conviction to augment his 1989 sentence. For even if we assume that Behlke’s 1984 conviction was improper, his 1989 sentence is unconstitutional only if the judge used the prior conviction to enhance the current sentence. Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990). To prove that the judge used the 1984 sentence Behlke must show a “posi-five and demonstrable nexus between the current custody and the prior conviction.” Id. (quoting Lowery v. Young, 887 F.2d 1309, 1312 (7th Cir.1989)). “Such a link may be hard to show when the sentencing judge knows about the prior conviction but does not expressly augment the sentence on account of it.” Id. at 1090-91. The district court confronted that nettlesome problem in this case and answered it by examining what the judge said when he sentenced Behlke in 1989. We agree unwaveringly with Chief Judge Crabb that these comments do not show that he expressly augmented Behlke’s 1989 sentence because of his 1984 sentence. Because it is not clear that but for Behlke’s prior conviction he would have received a lower sentence, we AffiRM the district court’s decision, adopting the reasons set forth in its dispositive opinion and order which appears in the appendix.¹

1 . We note, however, that the court on page 491 of its opinion stated that, "That alone is enough to preclude a finding that the prior conviction was not used to enhance the current sentence.” Given the disposition of the case it is obvious that the court did not mean to say "preclude” but rather "support” dr some synonym thereof.