Gary Wickham v. Denis Dowd , 914 F.2d 1111 ( 1990 )

LAY, Chief Judge,

dissenting.

I respectfully dissent.

The majority opinion misses the mark.

The majority circumvents a decision on the merits of this case by deciding under non-retroactivity principles of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), that the petitioner may not raise a disproportionate sentence claim in a federal habeas proceeding. The Eighth Amendment prohibition of disproportionate sentencing is not a “new rule” under Teague. The rule prohibiting disproportionate sentencing, established in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), predates Wickham’s conviction.

Petitioner asserts that his state sentence of twenty years, ostensibly for burglary and leaving the scene of the accident, was actually doubled by the state judge because he violated a probation condition requiring that he abstain from alcohol. Petitioner urges the increased punishment was not for the underlying offense, and consequently his total punishment is disproportionate to his crime.

The majority’s analysis of the district court holding is erroneous. The district court specifically addressed the proportionality of the sentence and found the twenty-year sentence “totally unreasonable.”¹ Rather than confront this difficult question directly, the majority instead asserts that Wickham seeks to establish a new rule and that Teague bars review of the claim. The majority’s overbroad definition of a “new rule” under Teague forecloses all collateral review unless petitioner is fortuitous enough to allege facts identical to an already-decided claim.

Alexander Hamilton once noted that Blackstone had described the Habeas Corpus Act as the “Bulwark of the British Constitution.” The Federalist No. 84, at 629 (A. Hamilton 1892) (citing 4 W. Blackstone, Commentaries *488). If the majority is correct in its application of Teague, the writ of habeas corpus has become the toothless writ of the American Constitution.

In Teague, a plurality of the Supreme Court adopted Justice Harlan’s view that new rules of criminal procedure should not be applied retroactively on collateral review. The Court adopted this view with the purpose of ensuring finality in state criminal cases, believing that the resulting scope of habeas review would still serve to deter courts from violating established rules of criminal procedure. A “new rule” of criminal procedure is defined as one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 109 S.Ct. at 1070. A new rule exists if “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. (emphasis in original).

The district court granted a writ of habe-as corpus to petitioner under the principles of Solem. Thus, the court’s holding did not involve a new rule. A succinct summary of Eighth Amendment law illustrates the flaws in the majority’s analysis.

The evolution of Eighth Amendment doctrine concerning proportionate sentencing begins with Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).² The Court held that confining a person to fifteen years of hard labor in chains was cruel and inhumane treatment for the crime of simple fraud, and noted that “it is a precept of justice that punishment ... should be graduated and proportioned to offense.” Id. at 367, 30 S.Ct. at 549. Courts and commentators subsequently debated whether Weems established a rule on disproportionate sentencing or was directed to the nature of the punishment inflicted. See Comment, Solem v. Helm: Extension of Eighth Amendment Proportionality Review to Noncapital Punishment, 69 Iowa L.Rev. 775, 776 n. 8 (1984).

The next development in Eighth Amendment proportionality doctrine was Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), which held that a state could not punish a person solely because of the person’s status. Id. at 667, 82 S.Ct. at 1420. The Robinson Court held that punishing a person for narcotics addiction absent any conduct in accord with that status was cruel and inhumane treatment. Id. The Court emphasized that even one day in jail for a person who is not engaged in criminal conduct may be unconstitutional. Id.; see also Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

Thereafter, in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the Court upheld a life sentence, with parole, imposed on a repeat offender of non-violent crimes, and cast doubt on whether proportionality analysis would apply to noncapital crimes.³ .In Solem, however, the Court removed that doubt and ruled that a criminal sentence can be so grossly disproportionate, even in noncapital eases, that it violates the Eighth Amendment. 463 U.S. at 288-89, 103 S.Ct. at 3008-09. The Court indicated it would apply the doctrine only in narrow circumstances, but in Solem found that a life sentence without parole for an alcoholic convicted of check fraud was unconstitutionally disproportionate. Id. at 303, 103 S.Ct. at 3016.⁴

Since Solem, various courts of appeal have reviewed a habeas petitioner’s sentence as it relates to the offense committed, to determine whether the sentence was grossly disproportionate under the standard set out in Solem.⁵ See, e.g., United States v. Terrovona, 785 F.2d 767, 771 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 553 (1986); United States v. Ortiz, 742 F.2d 712, 714 (2d Cir.), cert. denied, 469 U.S. 1075, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984); Whitmore v. Maggio, 742 F.2d 230, 233 (5th Cir.1984). This court has applied Solem in many cases. See, e.g., United States v. Buckner, 894 F.2d 975, 980 (8th Cir.1990); United States v. Milburn, 836 F.2d 419, 420 (8th Cir.), cert. denied, 487 U.S. 1222, 108 S.Ct. 2880, 101 L.Ed.2d 915 (1988); Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987). I fail to see how a rule uniformly and universally applied for seven years can be a new rule.

The majority dismisses the proportionality argument in a short footnote, ante n. 8, holding there is no binding precedent. The majority’s reliance on Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), is totally misplaced. The Sawyer Court held that a court may not circumvent the principles of Teague by claiming a violation of general, abstract principles of law. Id. 110 S.Ct. at 2832-33. The Court observed that “the [new rule] test would be meaningless if applied at this level of generality.” Id. at 2828. Wickham, however, is not basing his claim on “general principles” of law; he asks for nothing more than the same proportionality analysis we routinely make under Solem.

The Court’s decision in Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), directly refutes the majority’s analysis. Penry, convicted of capital murder by a state court, objected to the trial court’s refusal to instruct the jury that it could consider and give effect to mitigating evidence in determining sentence. Penry relied on two Supreme Court decisions, Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), both decided before his conviction became final, which held that courts cannot prevent consideration of mitigating circumstances. The Court found these precedents, requiring courts not to prevent consideration of mitigating circumstances, dictated a rule that courts must provide, on request, an affirmative instruction that the jury may consider mitigating evidence.

The teaching of Penry seems to be that, to constitute a new rule, a rule must extend further than to simply recast an existing principle in light of new facts. The existing bedrock principle in Penry was that juries must be aware that they can consider mitigating evidence in a capital case. The Court in Penry did not change that rule, but merely applied it in a different situation.

The majority holds that the district court seeks to extend Robinson. Thus, it finds Teague applicable and holds that such an extension would create a new rule. This analysis totally misreads the district court’s holding. The district court did not find the Robinson opinion controlling. The court initially cited Robinson in a single statement, restating petitioner’s argument; but that was not the district court’s holding. Robinson is easily distinguishable on both its facts and law. Fundamentally, Robinson is not a proportionality case. It simply holds that a person cannot be punished for “status.”

The majority notes that Robinson does not prohibit punishment for the conduct of an alcoholic, but this observation is irrelevant. The district court addresses the evil of disproportionality under the eighth amendment: “doubling petitioner’s sentence for doing what he was powerless to control.” This invites a Solem analysis, not Robinson. Wickham urges that Robinson supports his argument because the district court attempted to punish his status (as an alcoholic) rather than the underlying offense. This argument is merely supportive of Wickham’s disproportionality claim. Wickham clearly presents his claim as disputing a sentence totally disproportionate to his underlying offense.⁶

The record discloses that the trial court on numerous occasions stated it was punishing Wickham, not for the underlying crime, but for being an alcoholic. In the initial sentencing hearing, when the judge suspended Wickham’s sentence and established the probation conditions, the court commented:

COURT: Now, you have a drinking problem. There is no need trying to hide it. We all know it. If you don’t you’re the only one that doesn’t know it. And the Court is also aware and your attorney is, and society is, that it’s a very hard problem to control. You’re addicted to it just like people are addicted to drugs or anything else. But the problem is, it’s now becoming a very expensive addiction to you, and you can whip it if you want to. If you don’t want to, nobody, I don’t care how many programs you go to and what you do, nobody’s going to get it whipped for you but yourself. And motivating you by fear probably won’t do it. You’[ve] just got to set your mind to it that you cannot handle alcohol, because if you do, you know you’re going to get in a fight. You know you’re going to raise hell somewhere. You know you’re going to get in trouble and you know you’re going somewhere, isn’t that right Mr. Wickham?

WICKHAM: Yes it is.

COURT: Is there any doubt in your mind what will happen to you if you violate this probation?

WICKHAM: No.

COURT: We’re talking about at the maximum twenty years, so I know it’s a tough row to hoe, but Mr. Wickham you don’t have any choices. You’ve come to the end of your rope here. Now if you’re not willing to prove to yourself and set your mind yourself that you cannot live and drink alcohol, then you violate this and you are telling me “Well, I just can’t do it.” So I will accommodate you Mr. Wickham. I will take you out of society for as long as I can, because we can’t have you in society. You’ve shown that you cause all kinds of hell to be raised when you drink, and you’re going to kill somebody. It’s a miracle you haven’t yet. And so if you can’t conform to the rules of this community and of the State of Missouri, you’re telling me you don’t need to be a member of this society and I’m going to put you away Mr. Wickham. Now do you understand that?

WICKHAM: Yes I do.

COURT: We’re not going to play any more games. I’m not going to take any excuse or explanation from you. You either do it or sign you life away to twenty years in the pen because we don’t need you out here if you’re going to drink. Now everybody tells me, not everybody but people who are acquainted with you, the Sheriff, law enforcement, that you’re a good worker when you work and you only cause trouble when you get to drinking. And it’s a problem that nobody can work with but you yourself. And nobody says it’s easy. But you’ve got more at stake than the average person now because you know if you bust this probation again, you might as well pack your bag, because you’re not going to be in this society as long as I can keep you out of it. Do you understand that?

[T. 39-42] (emphasis added).

After Wickham violated his probation, upon sentencing Wickham to twenty years, the court stated:

You’re another shining example of why the people of the RID organizations are crusading. They want people like you out of society and that’s where you have to go, Mr. Wickham. As far as I’m concerned, you are to be kept there for the rest of your natural life because you cannot function, you are a danger to your fellow human beings out on the streets of the state of Missouri.

[T. 235],

The judge never mentioned the offenses for which Wickham had been convicted.⁷

The majority adopts the simplistic view that the court, as a condition of probation, required Wickham to abstain from alcohol because drinking is related to Wickham’s criminal conduct. This was the view of the Missouri Court of Appeals in denying Wick-ham’s direct appeal. Wickham v. State, 733 S.W.2d 793, 794-95 (Mo.Ct.App.1987).

With all due respect, this is a superficial analysis. The state court made clear that a fair and reasonable sentence, at least in the eyes of the court, was two five-year consecutive sentences. If this sentence had been suspended and the defendant placed on probation with the condition that the defendant abstain from alcohol, there would be no issue for appeal. But that is not what occurred. As the district court observed, the state court gave Wickham the choice of serving ten years or having a suspended twenty-year sentence subject to the condition that Wickham not take a drink.⁸ The double punishment was not related to the underlying offense. The increased punishment was directed at petitioner’s status as an alcoholic and the need to remove his kind from society “for the rest of [his] natural life.” Thus, the case merits judicial analysis as to whether the sentence was grossly disproportionate to the offense.

It is unnecessary at this point to make a full analysis of the gross disproportionality claim. The majority has seen fit to avoid discussion of the merits of the case. On the merits, reinforced by the district court’s grant of a writ, Wickham makes out a strong case of disproportionality. In so stating I emphasize this is a close question and a difficult one. Full analysis might lead me to a contrary conclusion, but I do not think so.

1 . The court stated: "[T]he issue in the present matter is whether the 5-year and 15-year maximum sentences imposed by the state court were so grossly disproportionate to the offenses committed that they violate the Eighth Amendment under the circumstances of this case.” Wickham v. Dowd, No. 88-0233-CV-W-5-P, slip op. at 5 (W.D.Mo. May 9, 1989).

2 . The court was confronted with a proportionality claim in O’Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892), but dismissed the case on procedural grounds. See id. at 339-40, 12 S.Ct. at 699-700 (Field, J., dissenting).

3 . The Court stated that "one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.” Rummel, 445 U.S. at 274, 100 S.Ct. at 1139, see Comment, supra, at 775, 781 & n. 44.

4 . It is an interesting contrast to the present case that our court, in holding that Helm received a disproportionate sentence, observed:

Helm, who was 36 years old when he was sentenced, is not a professional criminal. The record indicates an addiction to alcohol, and a consequent difficulty in holding a job. His record involves no instance of violence of any kind. Incarcerating him for life without possibility of parole is unlikely to advance the goals of our criminal justice system in any substantial way. Neither Helm nor the State will have an incentive to pursue clearly needed treatment for his alcohol problem, or any other program of rehabilitation.

Solem, 463 U.S. at 297 n. 22, 103 S.Ct. at 3013 n. 22.

5 . The Solem Court established a three-part test for determining whether a sentence is proportionate:

In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 290-92, 103 S.Ct. at 3009-10.

6 . The second page of Wickham’s brief succinctly asserts this Solem argument:

The final clause of the Eighth Amendment prohibits sentences that are disproportionate to the crime committed. See Solem v. Helms, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). As noted by the Missouri Court of Appeals, Southern District, in Wickham v. State, 733 S.W.2d 793 (Mo.Ct.App.1987), “[p]unishment within statutory limits is not cruel and unusual unless it is so disproportionate under the circumstances that it shocks the moral sense of all reasonable men.” [citing State v. Whitehead, 675 S.W.2d 939, 943 (Mo.Ct.App.1984) and State v. Walker, 618 S.W.2d 43, 44 (Mo.Ct.App.1981) ]. Petitioner herein was sentenced to the maximum sentences permitted for the underlying offenses. See § 569.160 R.S.Mo. (1978); § 577.060 R.S.Mo. (1978) and § 558.011 R.S.Mo. (1979). Even though sentencing within statutory limitations may not, in the abstract, be unconstitutional, the question cannot be considered in the abstract since cases recognize that a sentence of even a single day in prison may be unconstitutional in some circumstances. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). As noted by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Eighth Amendment prohibits penalties that transgress today’s "broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” [quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285 [290] 50 L.Ed.2d 251 (1976) and Jackson v. Bishop, 404 F.2d 571, 579 (8th Circuit 1968) ]. The prohibition against cruel and unusual punishment also recognizes the "evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590 [598] 2 L.Ed.2d 630 (1958) (plurality opinion). Thus, contrary to the assertion made in respondent's brief, the sentencing of petitioner within statutory guidelines does not, standing alone, allow said sentencing to pass constitutional muster under Eighth Amendment analysis. Rather, the District court properly examined all the circumstances surrounding petitioner's sentence to determine whether the sentences "imposed by the State Court were so grossly disproportionate to the offenses committed that they violate the Eighth Amendment under the circumstances of this case." (Addendum to respondent’s brief, hereinafter Add., at A-8) (emphasis added). The District Court properly applied Eighth Amendment analysis concluding that the sentences imposed on petitioner were unreasonable.

Brief of Appellee at 2-3, Wickham v. Dowd, No. 89-2580WM.

7 . It is interesting to note that the underlying offenses here, burglary and leaving the scene of the accident, all involve a family feud. Wick-ham broke into his father-in-law's trailer and assaulted his brother-in-law. Twenty years in prison for offenses arising out of a family dispute is certainly relevant in determining proportionality under Solem.

8 . As the district court stated, in view of petitioner’s alcoholism "this was not a choice at all.” Wickham v. Dowd, No. 88-0233-CV-W-5-P, slip op. at 8 (W.D.Mo. May 9, 1989).

Because the record fairly demonstrates that Wickham’s increased punishment was for drinking in violation of his probation, that sentence must be proportional to other penalties for unlawful drinking. Missouri’s most severe alcohol-related penalty is for driving while intoxicated. "Persistent offenders,” who have two or more intoxication related convictions in the preceding ten years, Mo.Ann.Stat. § 577.023 subd. 1(2) (Vernon Supp.1990), may receive a sentence not to exceed 5 years, Mo.Ann.Stat. § 558.011, subd. 1(4). Thus, even if the judge was sentencing Wickham for driving while intoxicated, the sentence is excessive in view of the sentencing range the state has authorized for repeat DWI offenders. Wickham received at least twice the harshest possible sentence under Missouri law.