Henry v. Whitley

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30018
Summary Calendar
WARREN HENRY,
Petitioner-Appellant,
versus
JOHN P. WHITLEY, Warden; RICHARD P. IEYOUB,
Attorney General, State of Louisiana,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CV-1678
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October 13, 1997
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Warren Henry, Louisiana prisoner # 77111, appeals the
dismissal of his 28 U.S.C. § 2254 habeas application. Henry
argues that the sentencing judge’s arbitrary and capricious
refusal to even consider the sentencing guidelines or the
sentencing alternatives available under the statute amounts to a
deprivation of liberty in violation of the Due Process Clause.
It is not this court’s function in a habeas proceeding to review
a state’s interpretation of its own law. Weeks v. Scott, 55 F.3d
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-30018
-2-
1059, 1063 (5th Cir. 1995). However, to the extent that such
review is required by due process implications, the sentencing
judge did consider whether a lesser sentence would deprecate the
seriousness of the crime, and he also considered Henry’s history
of criminal conduct, which in the judge’s mind weighed against a
probated sentence. The judge also stated that there were no
extraordinary circumstances, which would take into account
mitigating factors. The state court’s finding that the judge
complied with the state statute, and the state court’s conclusion
that the sentencing judge was aware of, and properly exercised,
his discretion, did not involve an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d)(1); see
Carter v. Johnson, 110 F.3d 1098, 1103 (5th Cir. 1997), petition
for cert. filed, No. 97-5538 (Aug. 8, 1997).
Henry argues that the resentencing hearing should have been
held before a different judge than the one who imposed the
original sentence. He contends that the judge used the
resentencing hearing as a forum for justifying his earlier ruling
rather than giving adequate consideration to the sentencing
guidelines. A due process violation does not automatically
result from resentencing by the same judge. “Absent proof that
the judge would refuse to exercise sentencing alternatives due to
actual bias or partiality, no federal constitutional right is
threatened.” Every v. Blackburn, 781 F.2d 1138, 1141 (5th Cir.
1986). There is no proof that the judge was biased or impartial.
No. 97-30018
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Henry has not shown that the state court’s decision involved an
unreasonable application of clearly established federal law. 28
U.S.C. § 2254(d)(1); Carter, 110 F.3d at 1103.
AFFIRMED.