Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus.1 On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas's representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 43-2328. We reverse and remand.

Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975.2 After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328,3 was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri.4 The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences.5 No objection to the introduction of this evidence was made.

Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively.

Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), Cert. denied, 429 U.S. 846, 97 S. Ct. 128, 50 L. Ed. 2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas's Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas's sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas's other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence.

Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes.6 The court believed that it was without jurisdiction, however, both because Klimas's petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Klimas's petition for lack of jurisdiction, and he now appeals.

To the extent that the District Court believed that it was without jurisdiction to consider Klimas's petition because of the United States Supreme Court's denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner's later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S. Ct. 397, 97 L. Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure P 4264 at 631 (1978).

We, therefore, turn to the more difficult question presented by this petition: whether Klimas's pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief.7 See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975).

We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas's accomplice and the prosecution's principal witness against him, did not rise to the level of the deprivation of a constitutional right. Klimas's counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court's ruling and since no further attempts were made by Klimas's counsel to elicit Weeks' possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas's constitutional rights which would justify the granting of habeas corpus relief.

We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 411005 or § 43-2330.1,8 in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief.

Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S. Ct. 1129, 87 L. Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S. Ct. 1129; DeBerry v. Wolff,supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975).

Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal9 is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat.Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant's previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id.

Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C.,supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962).

After the Arkansas Supreme Court found that the evidence of Klimas's seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury's finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas's trial. It is impossible to tell from the jury's verdict, however, Which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed.10

The State, citing Rose v. Hodges, 423 U.S. 19, 96 S. Ct. 175, 46 L. Ed. 2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas's sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra :

Emphasizing that the jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon's constitution is firmly controlling. * * *

Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution.

Id. at 860. See also Ellingburg v. Lockhart, 397 F. Supp. 771, 776 (E.D.Ark.1975).

The question which remains is whether the state court's failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal.11 The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him.

Retrial of a criminal defendant on a habitual criminal charge may be a futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973).12 In this case, however, Klimas's right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat.Ann. § 43-2328(3), in effect at the time of his trial, Klimas's six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1, 1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges.13 Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder,14 we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him.

The order dismissing Klimas's petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ.