dissenting.
Because the collateral estoppel component of the Double Jeopardy Clause prohibits the Commonwealth from relitigating the degree of Carpenter’s persistent felony offender status in a second proceeding based upon the identical prior crimes, and because I believe that the Double Jeopardy Clause applies in this case, I DISSENT. I would affirm the district court’s order granting the writ of habeas corpus.
I
The Kentucky persistent felony offender sentencing procedure is relatively simple. To obtain a first-degree persistent felony offender conviction, the Commonwealth must prove that a defendant has been convicted of two or more prior felony offenses, while a second-degree persistent felony offender conviction may be obtained by proof that a defendant has been convicted of only one prior felony offense. Ky.Rev.Stat.Ann. §§ 532.080(2), (3) (Baldwin 1995). The prosecutor is required to prove the existence of the previous convictions, although not their validity, beyond a reasonable doubt. McGuire v. Commonwealth, 885 S.W.2d 931, 936-37 (Ky.1994).
Carpenter was indicted on seven criminal counts and as a first-degree persistent felony offender. One of the criminal counts was severed and tried separately. In his first trial, Carpenter was found guilty of the six criminal counts, and was convicted as a second-degree persistent felony offender after the Commonwealth presented evidence of four prior felony convictions in the persistent felony offender proceeding. In his second trial, Carpenter was found guilty of the remaining criminal count, and was convicted as a first-degree persistent felony offender based upon three of the same prior felony convictions that the Commonwealth had presented as evidence in the first persistent felony offender proceeding. Conviction as a first-degree persistent felony offender significantly lengthened the sentence Carpenter would have received if he had been convicted simply as a second-degree persistent felony offender, as he was in the first trial.
II
One of the central objectives of the Double Jeopardy Clause is to prevent the prosecution from having “another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The Supreme Court has stated that: *1275United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980).
*1274Implicit in this [objective] is the thought that if the Government may reprosecute, it gains an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own.
*1275Collateral estoppel in criminal cases is a component of the Fifth Amendment’s Double Jeopardy Clause, which is applicable to the states through incorporation into the Fourteenth Amendment. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970) (collateral estoppel is a component of the Fifth Amendment’s Double Jeopardy Clause); Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969) (Fifth Amendment’s Double Jeopardy Clause applies to the states through incorporation into the Fourteenth Amendment). Collateral estoppel is a matter of “constitutional fact” that a federal court must decide through an examination of the entire record. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. “[Collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. Where a judgment of acquittal is based on a general verdict, the court must examine the record of the prior proceeding and determine “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194.
Collateral estoppel precludes the second persistent felony offender proceeding in this case. In the first persistent felony offender proceeding, the Commonwealth presented evidence of four felony convictions in an attempt to convict Carpenter as a first-degree persistent felony offender. The jury convicted Carpenter as a second-degree persistent felony offender. In the second persistent felony offender proceeding, the Commonwealth again sought to convict Carpenter as a first-degree persistent felony offender using three of the same felony convictions as in the first proceeding. However, the first jury had already decided the ultimate fact — that Carpenter was not a first-degree persistent felony offender on the basis of those convictions — against the Commonwealth. The same parties had litigated the persistent felony offender issue previously, based on evidence of the same prior crimes; this precludes the relitigation of the same issue in a separate lawsuit, such as the second persistent felony offender proceeding.
The only issue in either of the persistent felony offender proceedings was the number of prior convictions. To obtain a first-degree persistent felony offender conviction, the Commonwealth had to prove that Carpenter had two or more prior convictions. In Carpenter’s first persistent felony offender proceeding, the Commonwealth presented evidence of four prior convictions, but the jury convicted Carpenter only as a second-degree persistent felony offender, which requires only one prior conviction. The only rational interpretation of the first jury’s verdict, therefore, is that the first jury did not believe the Commonwealth’s evidence of three of the prior convictions.
Because the factfinder had already decided that these prior convictions presented by the Commonwealth were insufficient for first-degree persistent felony offender status, that issue of ultimate fact had already been litigated by the parties and finally decided. Collateral estoppel thus precluded the second persistent felony offender proceeding based on those same convictions. The Commonwealth was bound to the determination by the first jury that Carpenter was only a second-degree persistent felony offender. To permit the Commonwealth to relitigate the.issue it has lost allows the Commonwealth a second chance to “muster its evidence” and present its case, in violation of the core Double Jeopardy Clause objective described in Burks. The result the majority reaches thus is clearly unconstitutional.
Ill
The Supreme Court has stated that “ ... & sentence does not have the qualities of constitutional finality that attend an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328 (1980). In DiFrancesco, the Court held that the Double Jeopardy Clause does not prevent increases in sentences upon authorized appeal by the government, because the imposition of any particular sentence does not act *1276as an “implied acquittal” of any greater sentence. Id. at 136 n. 14, 101 S.Ct. at 437 n. 14.
A year after the DiFrancesco decision, the Supreme Court decided Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), where it held that the Double Jeopardy Clause did apply to the sentencing portion of a capital case because of the trial-like nature of the capital sentencing procedure. Id. at 438-39, 101 S.Ct. at 1857-58. The Court noted that the prosecution was required to establish certain facts beyond a reasonable doubt in order to obtain the death penalty. Id. at 441, 101 S.Ct. at 1859. The Court also noted that the factfin-der’s discretion in a death penalty proceeding was limited to choosing one of two options, while a traditional sentencing judge had a large number of choices about which sentence to impose. Id. at 443-44, 101 S.Ct. at 1860-61. In Bullington, where the first jury declined to impose capital punishment and instead sentenced the defendant to life imprisonment, the Court held that the Double Jeopardy Clause prohibited reconsideration of the death penalty upon a retrial necessitated by other constitutional errors in the first trial.
The Supreme Court has not decided whether the Double Jeopardy Clause is applicable to non-capital sentencing proceedings that are sufficiently trial-like to meet the test set out in Bullington.1 The majority here cites cases from the Seventh and Tenth Circuits holding that the Double Jeopardy Clause does not apply to such non-capital sentencing proceedings. Denton v. Duck-worth, 873 F.2d 144 (7th Cir.), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); Linam v. Griffin, 685 F.2d 369 (10th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983). Although both courts stated that they would not extend Bullington to non-capital sentencing proceedings, the cases relied upon by the majority did not involve situations such as Carpenter’s, where the government retried a defendant on a sentence enhancement charge after it failed to prove the very same charge based on the same prior crimes in a prior sentence enhancement proceeding. Rather, both eases relied upon by the majority permitted retrials on sentence enhancement charges because the government’s sentence enhancement convictions were overturned for “trial error,” and thus did not involve an initial determination that the government’s evidence was insufficient. Denton, 873 F.2d at 148 (“This clearly is a case of ‘trial error,’ and not of insufficiency of the evidence.”); Linam, 685 F.2d at 373 (“The conclusion to be drawn is that the [state appellate court’s] interpretation [resulting in the reversal of the enhancement conviction] meets the Burks Court’s definition of trial error and is not a true finding of inadequacy of evidence.”). Thus, both courts held that the Double Jeopardy Clause would not bar retrial after appellate reversal based on trial error even if the Double Jeopardy Clause were applicable. Their statements that they would not extend Bullington to noncapital sentencing proceedings are dicta that the majority reads too broadly.
Three other circuits have held persuasively that the Double Jeopardy Clause applies to non-capital sentencing proceedings that are sufficiently trial-like to meet the Bullington test. The Fifth Circuit has held that the Double Jeopardy Clause applies to bar a second non-capital sentence enhancement proceeding when the evidence at the first sentence enhancement proceeding was insufficient to establish the particular sentence enhancement. Bullard v. Estelle, 665 F.2d 1347, 1349 (5th Cir.1982), vacated on other grounds, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983); French v. Estelle, 692 F.2d 1021, 1025 (5th Cir.1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983). The Texas habitual offender proceeding at issue in Bullard required the state to prove beyond a reasonable doubt that the defendant had committed two prior felonies. 665 F.2d at 1357-58. The defendant in Bul-lard was initially convicted of habitual offender status, but his conviction was reversed on appeal because the state had presented insufficient evidence that the defendant com*1277mitted the prior felonies. Id. at 1350. Upon remand, the trial court held a second habitual offender hearing, at which the defendant was convicted of being an habitual offender. Id. The Fifth Circuit held that the second habitual offender proceeding was barred by the Double Jeopardy Clause, and stated:
Because [the defendant] was once subjected to an enhancement proceeding, because the appellate court found insufficient evidence of habitual offender status, thus leading to [the defendant’s] implicit acquittal as a habitual offender, and because resentencing would require a second trial with the State having an unwarranted “second bite at the apple” to prove facts that it failed to prove initially, the double jeopardy clause bars this second trial-like enhancement ... proceeding.
Id. at 1362. Although Bullard was vacated by the Supreme Court on state-law grounds, the Fifth Circuit continues to follow Bul-lard ’s reasoning as circuit precedent. Briggs v. Procunier, 764 F.2d 368, 371 (5th Cir.1985).
The Eighth Circuit held that the Double Jeopardy Clause applied to Arkansas habitual criminal offender sentencing proceedings. Nelson v. Lockhart, 828 F.2d 446, 450-51 (8th Cir.1987), rev'd on other grounds, 488 U.S. 33,109 S.Ct. 285, 102 L.Ed.2d 265(1988). The Arkansas procedure used in Nelson required the state to prove four prior convictions beyond a reasonable doubt in a jury proceeding. The Eighth Circuit noted that although Arkansas courts held that the habitual offender proceeding merely enhanced punishment and did not constitute a separate offense, the Double Jeopardy Clause nonetheless applied because the habitual sentencing procedure “constituted a trial on the issue of punishment.” Id. at 450 n. 7. The Eighth Circuit determined that the habitual offender proceeding was trial-like because the jury determined whether the prosecutor had proven the existence of the prior convictions beyond a reasonable doubt, and the defendant was permitted to present evidence controverting the state’s evidence of the pri- or convictions. Id.
The Ninth Circuit also has extended the Bullington rationale to non-capital sentence enhancement proceedings. In Durosko v. Lewis, 882 F.2d 357, 359 (9th Cir.1989), cert. denied, 495 U.S. 907, 110 S.Ct. 1930, 109 L.Ed.2d 294 (1990), the court held that the Arizona habitual offender scheme was sufficiently trial-like for the Double Jeopardy Clause to apply. The Court stated that applying the Double Jeopardy Clause to the sentence enhancement proceedings, regardless of procedural and timing differences between those proceedings and the Missouri proceeding in Bullington, was consistent with “the thrust of Bullington, that the prosecution should not have a second opportunity to prove what it failed to prove once.” Id. at 359 n. 3. However, the court held that the second sentence enhancement proceeding in that ease was not prohibited by the Double Jeopardy Clause because it involved a different enhancement statute than the statute involved in the first sentence enhancement in the case, on which the district court had directed a verdict in the defendant’s favor. Id. at 361.
The Kentucky persistent felony offender sentencing scheme has many of the hallmarks of a trial. The prosecutor must prove the existence of the previous convictions beyond a reasonable doubt. McGuire v. Commonwealth, 885 S.W.2d 931, 936-37 (Ky. 1994). A separate hearing is held, and the statute provides that the court may even call a separate jury to consider a defendant’s persistent felony offender status if the court believes such action to be necessary. Ky. Rev.Stat.Ann. § 532.080(1) (Baldwin 1995). The defendant presumably may present evidence rebutting the existence of the prior felony convictions presented by the Commonwealth, such as that the defendant had been pardoned, and in some circumstances, the defendant may offer evidence of the invalidity of the prior convictions. McGuire, 885 S.W.2d at 937 (in a Kentucky persistent felony offender proceeding, the defendant may collaterally attack a prior conviction if the defendant was denied counsel when the prior conviction was obtained). See also Parke v. Raley, 506 U.S. 20, 21-23, 32-34, 113 S.Ct. 517, 519, 525, 121 L.Ed.2d 391 (1992) (Kentucky law allows persistent felony offender to challenge prior convictions on grounds of *1278their invalidity). Finally, the factfinder in a Kentucky persistent felony offender proceeding has limited discretion — it may either find the defendant guilty as a first-degree persistent felony offender or as a second-degree persistent felony offender, or it may acquit the defendant of persistent felony offender status. The Kentucky persistent felony offender proceeding certainly is not as extensive as the death penalty sentencing proceeding held to invoke the Double Jeopardy Clause in Bullington, but it contains many of the trial-like elements that caused the Supreme Court to require Double Jeopardy Clause protection in capital sentencing proceedings.
The majority here relies on Montgomery v. Bordenkircher, 620 F.2d 127 (6th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 155, 66 L.Ed.2d 71 (1980), for the proposition that the Double Jeopardy Clause “is inapplicable” to the Kentucky persistent felony offender sentencing proceeding because the Kentucky persistent felony offender statute defines a status and not a separate offense. Montgomery, however, is a pre-Bullington decision in which a defendant’s prior felony convictions were successfully used in two cases to enhance his sentences for two completely unrelated crimes. The Montgomery court’s primary holding is that the Kentucky persistent felony offender statute’s. use of prior convictions to enhance punishment more than once does not violate the Double Jeopardy Clause. The fact that the Kentucky statute is viewed as establishing a status, instead of as a separate offense, does not provide the answer to this case.
Carpenter’s case is completely different from Montgomery. The Commonwealth here failed in its first attempt to convince a jury that Carpenter was a first-degree persistent felony offender. The first jury convicted Carpenter only as a second-degree persistent felony offender. In a second separate trial, using the identical prior convictions, the Commonwealth tried again to convince a second jury that Carpenter was a first-degree persistent felony offender. It is the second trial of the previously fully litigated and lost issue of persistent felony offender status based on the same course of conduct that violates the Double Jeopardy Clause here. This case is not the repeated use of a finding of a particular persistent felony offender status, which was the Montgomery situation. Although Montgomery holds that the same crimes may lead to punishment as a particular degree of habitual offender in more than one case, there is nothing in Montgomery that suggests that the government may repeatedly try to establish a particular degree of persistent felon status based on the same evidence when the government already has tried and failed to convict a defendant of that degree of habitual offender status based on those same crimes.
While the majority certainly is correct that “the anxiety and ordeal suffered by a defendant during a death penalty proceeding” is greater than that suffered by a defendant in a persistent felony offender proceeding, a persistent felony offender proceeding does have significant effects on a defendant. A first-degree persistent felony offender corn viction enhances the sentence for a defendant like Carpenter to a term of ten to twenty years, while a second-degree persistent felony offender conviction enhances a defendant’s sentence to the statutory maximum range for the next higher class of felony. Ky.Rev.Stat. Ann. §§ 532.080(5),(6) (Baldwin 1995). Therefore, the second persistent felony offender proceeding in this case, in which Carpenter was convicted as a first-degree persistent felony offender, could have added a significant amount of time to the sentence Carpenter would have received as a second-degree persistent felony offender. Since many aspects of a persistent felony offender proceeding are similar to the capital sentencing proceeding described in Bullington, the Double Jeopardy Clause should apply to Kentucky persistent felony offender proceedings.
Because the second proceeding relitigating the previously determined issue of Carpenter’s degree of persistent felony offender status is prohibited by the collateral estoppel element of the Double Jeopardy Clause, I respectfully DISSENT.
. The Supreme Court has assumed, without deciding, that the Bullington rationale extends to non-capital sentencing proceedings. Lockhart v. Nelson, 488 U.S. 33, 37 n. 6, 109 S.Ct. 285, 289 n. 6, 102 L.Ed.2d 265 (1988).