Ricky J. Terrebonne v. Frank Blackburn, Warden, Louisiana State Penitentiary ( 1981 )

ALVIN B. RUBIN, Circuit Judge:

We reheard this case en banc to consider •whether the eighth amendment proscribes a sentence of life imprisonment for a person convicted of the distribution of heroin. Considering the facts set forth in the record of the state criminal proceeding, including the nature of the offense and the prior record of the convicted person, as well as the sentencing alternatives available under Louisiana law, we conclude that the state statute authorizing the sentence was constitutional on its face when interpreted in the light of other provisions of Louisiana law and that the punishment imposed on Terrebonne was not cruel and unusual under the principles announced by the Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Accordingly, we affirm the district court judgment denying relief.

I.

In 1975, Ricky J. Terrebonne was a 21 year old heroin addict. On September 18th, two agents of the Sheriff’s Department of Jefferson Parish, Louisiana, accompanied by a paid informant, encountered Terrebonne. Aware of Terrebonne’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to “score a bundle” for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Terrebonne telephoned his “connection” (i. e. his supplier), the agents provided the funds to enable Terrebonne to make the purchase and Terrebonne left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, Terrebonne was arrested, tried and convicted of distributing heroin. Terrebonne testified at the trial. He did not deny the facts set forth above, but contended that he was entrapped.¹ He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child.

Terrebonne was convicted of violating La.Rev.Stat.Ann. 40:966 A (West 1977). That statute, on its face, prescribed a sentence of life imprisonment. He was sentenced to such a term. In passing sentence, the trial judge stated, “This Court has no choice in what it may do. The Legislature has prescribed the punishment that is mandatory.”

Terrebonne contends that both the uncompromising mandatory term set forth on the face of the statute and the sentence imposed on him are so disproportionate to his offense as to violate the eighth amendment. He appealed his conviction, State v. Terrebonne, 354 So.2d 1356 (La.1978), then unsuccessfully sought habeas corpus in state court on the same grounds here urged. State v. Terrebonne, 364 So.2d 1290 (La. 1978). Having exhausted his state remedies, Terrebonne sought federal relief. The district court denied the writ.

A panel of this court construed the petition as attacking only the sentence as applied and not the facial unconstitutionality of the statute. It concluded that the eighth amendment required review of the proportionality of sentences, subscribed to the criteria for determination of proportionality formulated by this court en banc when it considered Rummel, 587 F.2d 651 (5th Cir. 1978), and remanded the case for an evidentiary hearing on proportionality, 624 F.2d 1363 (5th Cir. 1980). We voted to consider the case en banc, thus vacating the panel opinion.

The trial judge stated that he was required to impose a life sentence on Terrebonne. He perhaps did not know, however, that Louisiana statutes other than the substantive criminal statute permitted him to impose sentences other than life imprisonment. The Louisiana Code of Criminal Procedure, Article 895 B, gave the trial judge discretion to suspend a life sentence and grant probation either without confinement or on condition that Terrebonne serve a term of imprisonment not to exceed one year. Such a sentence would have been served at the Parish jail, not the Louisiana State Penitentiary. Thus, while the penalty clause of the narcotics act made a life sentence mandatory on its face, it did not deprive the state sentencing judge of the authority given him by the state’s Code of Criminal Procedure. See La.Code Crim. Pro.Ann. arts. 894.1, 895 A.

In State v. Whitehurst, 319 So.2d 907, 909 (La.1975), the Louisiana Supreme Court held, in considering the same statute, that “mandatory life imprisonment, subject to probation and parole opportunities, but imposed without judicial consideration of any attendant mitigating circumstances, is neither excessive, nor cruel and unusual.” (Emphasis supplied.) Whitehurst was decided on October 1, 1975, and the emphasized portion of the Supreme Court decision was interpreted by Louisiana courts as allowing the probation alternatives as well as parole. Terrebonne’s trial began over 17 months after Whitehurst was rendered, on March 8,1977.

Whether the judge was in fact mistaken in his comprehension of Louisiana law or whether his remarks were a deliberate effort to escape the painful duty of telling the defendant that he was not imposing one of the lesser sentences permissible, we need not now decide. Although the erroneous imposition of a “mandatory” life sentence in ignorance of discretionary alternatives may violate both the Due Process Clause of the fourteenth amendment and Louisiana law,² Terrebonne did not raise the issue either in state court or in his federal habeas petition.³ It is fundamental that we review only the grounds presented in the petition for habeas corpus. Brown v. Alabama, 619 F.2d 376 (5th Cir. 1980). We are, of course, precluded from considering any issues for which state relief has not been sought. 28 U.S.C. § 2254; Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc).

It is significant that, at the time Terrebonne was sentenced, even a “mandatory” life sentence did not inexorably commit a defendant to prison for his natural life. A prisoner sentenced to life might apply for commutation of his sentence to a term of years. The governor might commute the sentence upon the recommendation in writing of the lieutenant governor, attorney general and presiding judge of the court before which the conviction was had or any two of them. At that time, commutation could not reduce the period of incarceration to less than ten years and six months. See 1942 La. Acts No. 50, § 3 (formerly codified at La.Rev.Stat.Ann. § 15:571.7); but see State v. Ledet, 337 So.2d 1126 (La.1976) (legislature may not deprive governor of power to commute sentence).

The statutes authorizing this procedure were repealed, together with the lOVfe year minimum, by 1979 La. Acts No. 490, § 2, after Terrebonne was sentenced. Instead, the Louisiana legislature adopted a statute providing for commutation without a minimum mandatory term. La.Rev.Stat.Ann. § 15:574.4 as amended by 1979 La. Acts No. 734, § 1, permits the Board of Pardons to recommend the commutation of a life sentence to a term of years, and, if commutation is granted, then to grant parole. The Board’s rules, adopted October 8,1979 (Rule 4), permit the Board to hear such applications at its discretion, that is, without exacting a minimum term. The governor’s power to commute sentences upon recommendation of the Board of Pardons is conferred by the Louisiana Constitution of 1974, Art. 4, § 5(E). This power appears to have been exercised with some frequency.⁴

II.

The petitions for habeas corpus in both the state and federal court attacked the validity of the statute itself. Terrebonne challenges its imposition of a mandatory sentence for life with no provision for tailoring the sentence in any meaningful way to the gravity of the offense, the culpability of the offender, and the circumstances of each case. This attack fails immediately when the entire pattern of Louisiana law is considered. As we have seen, despite the apparent inexorability of the single statute considered in isolation, the sentencing judge could take into account any factors that might properly weigh in favor of clemency. The state judge had a choice of alternatives in imposing a sentence on Terrebonne although he may not have been aware of them.

A conscientious sentencing judge, considering the small quantity involved in an offense, the manner in which the accused committed it, his previous record, and other appropriate factors pertaining to the individual before him, might put the defendant on probation, conditioned on his serving a one-year jail term, or imposing other conditions, or both. On the other hand, weighing the alternatives, the possibilities of parole board and executive clemency, as well as sentencing considerations appropriate to the individual, the judge might impose a life sentence.⁵

Given the alternatives actually available to the sentencing judge, Terrebonne’s facial challenge can succeed only if Louisiana could not properly choose life imprisonment as a maximum sentence. No decision has been cited that would stigmatize as cruel and unusual the punishment enforced by such a legislative decision. In Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977), we upheld a sentence of 45 years for distribution of small amounts of heroin. In light of the deference to state legislative judgments mandated by Rummel, we cannot say that a sentence unlikely to last much longer, and susceptible of being in fact much shorter, necessarily violates the eighth amendment. See Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1978).

III.

We turn to the major argument, that the sentence actually imposed was cruel and unusual. Our decision is necessarily governed by Rummel, which upheld the Texas recidivist statute against an attack similar to the one mounted by Terrebonne. Rummel had been convicted and imprisoned for three felonies: fraudulent use of a credit card to obtain $80 worth of goods, passing a forged check in the amount of $28.36 and obtaining $120.75 by false pretenses. The recidivist statute imposed a mandatory life sentence when a convicted felon had twice before been convicted and imprisoned for felonies. Like Terrebonne, Rummel argued that, because his crimes were not so heinous as to merit life imprisonment, his sentence was grossly disproportionate to the actual crime and therefore prohibited by the eighth amendment. Although affirming an en banc decision of this court denying Rummel relief, see 587 F.2d 651 (5th Cir. 1978), the Court rejected the proportionality analysis suggested in our majority and dissenting opinions.

In his opinion for the Court, Justice Rehnquist noted:

[O]ne 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 imposed is purely a matter of legislative prerogative.

(Emphasis supplied.) 445 U.S. at 274, 100 S.Ct. at 1139, 63 L.Ed.2d at 391. In a footnote, the majority added that a proportionality principle could come into play in an “extreme example,” such as punishing overtime parking with life imprisonment. See id., 445 U.S. at 274 n.11, 100 S.Ct. at 1139 n.11, 63 L.Ed.2d at 391 n.ll. Although stating that one could argue the proposition that the legislature has absolute discretion to fix the sentence for any felony, the majority did not then adopt it. Instead, without further mention of the proposition or the extreme example, the Court upheld Rummel’s sentence because the imposition of a life sentence for the offense involved served an obvious and substantial state interest and hence was not, in fact, grossly disproportionate. See id., 445 U.S. at 283-287, 100 S.Ct. at 1144-45, 63 L.Ed.2d at 396-399.

The Court determined that Texas has a right to protect its citizens from incorrigible recidivists. Although Rummel’s crimes each involved a trivial amount, he had shown that he was “simply unable to bring his conduct within the social norms prescribed by the criminal law of the state.” 445 U.S. at 283, 100 S.Ct. at 1144, 63 L.Ed.2d at 396. When sufficient proof, such as three felony convictions followed by imprisonment, indicates that a felon will never lead a law-abiding life, the state may remove the felon from society for a long period or permanently without inhibition from the Due Process Clause of the Fourteenth Amendment. See id.; Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

A life sentence for the crime of distributing heroin serves substantial state interests in the same manner that state interests were served by a life sentence for recidivism in Rummel.⁶ The state could reasonably treat heroin distribution as a serious crime equivalent to crimes of violence. It could conclude:

... The drug seller, at every level of distribution, is at the root of the pervasive cycle of drug abuse. Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank.

State v. Terrebonne, supra, 364 So.2d at 1292, quoting Carmona v. Ward, supra. Terrebonne willingly participated in the system of distribution, knowing the effects of the drug he procured.

Not only is distribution of heroin a serious offense, but the legislature could properly find that participation in the distribution of heroin itself often manifests a propensity to criminal behavior.

More significant, of course, are the crimes which drug traffickers engender in others... . The addict, to meet the seller’s price, often turns to crime to “feed” his habit. Narcotics addicts not only account for a sizable percentage of crimes against property; they commit a significant number of crimes of violence as well.

State v. Terrebonne, supra, 364 So.2d at 1292, quoting Carmona v. Ward, supra.

In addition, there was substantial evidence that Terrebonne must himself, as a victim of addiction, have turned to crime in order to support his habit. The State introduced evidence at trial showing that Terrebonne could not possibly have supported his $50 to $70 a day habit on his wages as an occasional carpenter (which, he admitted, amounted to only $24 a day). His criminal propensity had been shown by his own admission at trial that he had previously been convicted of two felonies, burglary and theft by fraud. It might reasonably be inferred that he habitually resorted to crime to allay his addiction.

The trial judge might properly consider Terrebonne’s previous convictions in imposing the sentence. Prior convictions are often a determining factor in the length of the sentence imposed, as the Louisiana presentence report guidelines suggest. See La. Code Crim.Pro.Ann. art. 875(A)(1), (West Supp.1981);⁷ compare Fed.R.Crim.P. Rule 32(c); Herron v. United States, 551 F.2d 62 (5th Cir. 1977).

Because Terrebonne’s prior criminal record and the evidence of other probable criminal behavior introduced at trial indicate that the life sentence imposed on him will serve the substantial state interests envisioned by the statute, we hold that Terrebonne’s sentence is neither cruel nor unusual within the meaning of the Eighth Amendment.

The judgment of the district court is AFFIRMED.

1 . No issue was raised concerning whether the “conduct of law enforcement agents [was] so outrageous” as to make Terrebonne’s prosecution violate due process. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1977); cf. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

2 . See Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980); Willeford v. Estelle, 637 F.2d 271 (5th Cir. 1981); State v. Foret, 380 So.2d 62 (La. 1980).

3 . We note that Terrebonne might be able to attack his sentence under Louisiana’s new post-conviction procedure. See La.Code Crim. Pro.Ann. art. 924 et seq.

4 . See La. Dep’t of Corrections, Statistical Report: 1977-78; 1978-79, 46 (1979). In 1977-78, the Board of Pardons recommended pardon or commutation in 31% of the cases heard. In 1978-79, this figure rose to 33%. We may take judicial notice of these statistics under Rule 201 of the Federal Rules of Evidence. The Report is a “source[] whose accuracy cannot reasonably be questioned” in light of the small numbers involved (1723 cases over two years) and the absence of any motive to falsify the figures. Rule 201(b)(2). Absent some reason for mistrust, courts have not hesitated to take judicial notice of agency records and reports. See Massachusetts v. Westcott, 431 U.S. 322, 323 n.2, 97 S.Ct. 1755, 1766 n.2, 52 L.Ed.2d 349 (1977) (Coast Guard records); Illinois Cent. R. R. v. Tennessee Valley Auth., 445 F.2d 308 (6th Cir. 1971) (TVA annual report); Skolnick v. Board of Commissioners, 435 F.2d 361 (7th Cir. 1970) (census figures); Brooks v. United States, 273 F.Supp. 619, 624 (D.S.C.1967) (“official governmental reports”). See also United States v. Hawkins, 566 F.2d 1006, 1008 n.2 (5th Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 150, 58 L.Ed.2d 151 (1978) (jury plan which was public record).

5 . If the alternatives available are cruel and unusual, it is presumably because one year is too paltry a penalty to be considered and life, even though subject to the ameliorating provisions allowed by other Louisiana statutes, is cruelly long. If so, then it is necessary to develop judicial criteria for determining when the maximum sentence permitted by a statute, as well as the sentencing alternatives available under it, become cruel and unusual. If such criteria are necessary, they should be developed by an appellate court. Trial courts are best suited to hear and determine facts, not to weigh policy factors and develop criteria for constitutional gauges.

6 . The scheme was attacked in both the state and federal courts as violating the Eighth Amendment by requiring a sentence of excessive length not for the irrationality of its sentencing scheme. Consequently, we do not consider whether a sentencing scheme may be so irrational as to deny substantive due process.

7 . There was no pre-sentence report in this case presumably because the defendant requested immediate imposition of sentence and the trial judge proceeded to announce sentence shortly after the jury returned its verdict.