Johnny Lee Nelson pled guilty in Arkansas state court to burglary and theft after taking forty-five dollars from a vending machine. He agreed to be sentenced by a jury pursuant to the state's habitual criminal offender act. Ark.Stat.Ann. Sec. 41-1001(2)(c) (Repl.1977). After the state introduced four prior felony convictions, Nelson received a twenty year sentence. The state now concedes that one of the felonies had, in fact, been pardoned. Nelson sought a writ of habeas corpus in the federal district court on the ground that use of the pardoned offense bars a second enhancement proceeding under principles of double jeopardy. The United States District Court for the Eastern District of Arkansas, the Honorable G. Thomas Eisele, Chief Judge, presiding, held that the double jeopardy clause precludes a retrial under the habitual offender statute.1 Nelson v. Lockhart, 641 F. Supp. 174 (E.D.Ark.1986). We affirm.

As the district court observed, the Supreme Court held that double jeopardy attaches in a hearing on sentencing where the sentencing procedure "was itself a trial on the punishment * * *." Bullington v. Missouri, 451 U.S. 430, 438, 101 S. Ct. 1852, 1858, 68 L. Ed. 2d 270 (1981). In the instant case, the district court found that the sentencing procedure constituted a trial on the issue of sentencing. Nelson v. Lockhart, 641 F. Supp. at 180. The procedure of introducing evidence of prior convictions "resemble[d] a trial wherein both sides present evidence, examine and cross-examine witnesses, and the prosecution carries the burden of proof beyond a reasonable doubt."2 Id. at 180.

While conceding that it "erred in introducing into evidence a prior conviction of Nelson's that had been pardoned,"3 the state argues that this was simply trial error and that the state is entitled to retry petitioner by using proof of other valid convictions. Petitioner contends that double jeopardy bars a second hearing on enhanced punishment.

A defendant cannot invoke immunity from a second prosecution under the double jeopardy clause if the first conviction was reversed due solely to trial error. United States v. Tateo, 377 U.S. 463, 465, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448 (1964). Unlike reversal for insufficiency of evidence, reversal for trial error:

implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.

Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 2149, 57 L. Ed. 2d 1 (1977).

In support of its argument that admitting the pardoned conviction was mere trial error, the state urges this court to follow the rule set out in United States v. Mandel, 591 F.2d 1347, 1373-74 (4th Cir.1979), cert. denied, 445 U.S. 961, 100 S. Ct. 1647, 64 L. Ed. 2d 236 (1980). While Mandel recognizes the traditional rules that reversal for evidentiary insufficiency precludes granting the government a second opportunity to prosecute, id. at 1373, and that reversal for trial error does not preclude a second prosecution, id., Mandel applies a special rule in cases where there is both trial error and insufficient evidence. In those cases, where the trial error was to admit evidence that should have been held inadmissible, Mandel suggests that appellate courts not "adjudicate the sufficiency of the balance of the evidence," id. at 1374, because appellate courts should not act as triers of fact. Id. at 1374. Whatever the merits or concerns of such a rule, it is settled that if the state fails to provide sufficient evidence to establish the defendant's guilt, then principles of double jeopardy apply. Burks v. United States, 437 U.S. at 11, 98 S.Ct. at 2147.

The essence of the Double Jeopardy Clause is that it "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks, 437 U.S. at 11, 98 S. Ct. at 2147. Thus, if the jury's determination on Nelson's additional sentence was equivalent to a trial on that issue, then a second prosecution is barred under the double jeopardy clause. The district court found that the proceedings had "all the 'hallmarks of the trial on guilt or innocence.' " Nelson v. Lockhart, 641 F. Supp. at 180 (quoting Bullington v. Missouri, 451 U.S. at 439, 101 S.Ct. at 1858). The state had the "burden of proving some factual proposition beyond a reasonable doubt as a predicate to the jury's having discretion to impose a more serious sentence." Nelson v. Lockhart, 641 F. Supp. at 180.4

Bullington, upon which the district court relied in finding that there was a trial on the issue of punishment, states clearly the relevant factors in determining whether the sentencing hearing constituted a trial on that issue. In Bullington the petitioner had been convicted of first degree murder. 451 U.S. at 435, 101 S.Ct. at 1856. The applicable Missouri statute required a presentence hearing of any defendant convicted of capital murder. Id. at 433 n. 4, 101 S. Ct. at 1855 n. 4. After hearing argument by the defendant and the prosecutor, id. at 433-34, 101 S. Ct. at 1855-56, the jury had to determine if the prosecutor had established aggravating circumstances beyond a reasonable doubt. The jury found Bullington guilty of capital murder and the same jury returned an additional verdict fixing Bullington's punishment at life imprisonment without eligibility of probation or parole for fifty years. Id. at 435-36, 101 S.Ct. at 1856-57.

After the jury's verdict was received, Bullington moved for and was granted a new trial.5 Because there was to be a new trial, the prosecution served notice that it intended to try to obtain the death penalty even though the earlier jury had granted only a life sentence. Bullington moved to strike the notice, arguing that the double jeopardy clause barred "the imposition of the penalty of death when the first jury had declined to impose the death sentence." Id. at 436, 101 S.Ct. at 1857.

The Supreme Court found that because the "sentencing proceeding at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury [was] available to him, with respect to the death penalty, at his retrial." Id. at 446, 101 S.Ct. at 1862. Under Bullington, then, double jeopardy attaches to sentencing proceedings if the process of determining the defendant's punishment was similar to the process of determining guilt. Because the jury's determination of Nelson's sentencing had the same procedural protections as his trial for theft and burglary, we agree with the trial court's holding that the principles of Bullington are controlling.

We reject the state's argument for several reasons. First, the facts here show that the state failed to prove that the defendant had been convicted of four felonies. The state proved only three valid convictions and the jury verdict of guilt under the habitual offender act, which requires four felony convictions, was mistaken. Second, the admission of the pardoned conviction was not trial error; the trial court did not rule on the admissibility of the conviction that the defendant claimed was pardoned by Governor Faubus.6 While the conviction in question was indeed submitted to the jury, Nelson had not engaged in any misconduct. For example, the petitioner did not deceive the court or the prosecutor as to the status of the pardoned conviction. In fact, he did all he could have been expected to do to make the court and prosecutor aware of his pardon. Responsibility for the evidence submitted remained with the prosecution.

Third, the Mandel case, upon which the state relies heavily, is inapplicable. In Mandel there was a "vast volume of evidence ..." 591 F.2d at 1373. By contrast, the State of Arkansas had introduced only four felony convictions in this case. In addition, Mandel was concerned with needless multiplicity of evidence, and the rule in that case was concerned with the competency of appellate courts to act as triers of fact. Neither of these concerns are raised in this case because there was no repetitious or duplicative evidence submitted on the habitual offenders count nor is there any difficulty for the appellate court in determining if the pardoned conviction was inadmissible. It unarguably was not admissible. Without the fourth conviction, the state has failed to provide sufficient evidence. Thus, even if we were to adopt Mandel, which we do not, the rule in that case would not support the state's position.

Finally, we reject the state's argument because the district court was correct in its application of Bullington v. Missouri. As stated earlier, Bullington held that the double jeopardy clause was invoked where "the sentencing procedure at petitioner's first trial was like the trial on the question of guilt or innocence ..." Id. at 446, 101 S.Ct. at 1862. The statute in question is an evidentiary statute which requires the state to prove Nelson's prior felonies beyond a reasonable doubt. Nelson v. Lockhart, 641 F. Supp. at 179.7

The Fifth Circuit has addressed the issue we are faced with and held in Briggs v. Procunier, 764 F.2d 368, 372 (5th Cir.1985) that double jeopardy attaches to an initial hearing on a defendant's status as a habitual offender:

We hold that double jeopardy prevented the retrial of Briggs as a habitual offender even though the state alleged different prior felonies in its second indictment. * * * In other words, once the state has failed to prove that the defendant is a habitual offender with respect to one predicate offense, for example, the burglary here, it may not seek to sentence him as a habitual offender for that underlying crime. Briggs, 764 F.2d at 372-73.8

We adopt the reasoning in Briggs. Accordingly, the judgment and order of the district court are affirmed.9