Hawkins v. Hargett, 98-5162

• Decision Date: 29 December 1999
• Docket Number: No. 98-5162,98-5162
• Citation: 200 F.3d 1279
• Parties: (10th Cir. 1999) TRENTON LYNN HAWKINS, Petitioner-Appellant, v. STEVE HARGETT, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1279

200 F.3d 1279 (10th Cir. 1999)

TRENTON LYNN HAWKINS, Petitioner-Appellant, v. STEVE HARGETT, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees,

No. 98-5162

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 29, 1999

Appeal from the United States District Court for the NorthernDistrict of Oklahoma (D.C. No. 95-CV-413-BU(J)) Stephen J. Greubel of Law Offices of Maynard I. Ungerman, Tulsa, Oklahoma, for Petitioner-Appellant.

Steven E. Lohr, Assistant Attorney General of the State of Oklahoma (W.A. Drew Edmondson, Attorney General of the State of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, LUCERO, Circuit Judge, and KIMBALL,^* District Judge.

SEYMOUR, Chief Judge.

Trenton Lynn Hawkins appeals from the federal district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. The issue before us is whether the prison sentence imposed on Mr. Hawkins is unconstitutionally disproportionate in violation of the Eighth Amendment. For the reasons set forth below, we affirm the judgment of the district court.

I.

In the early morning hours of August 11, 1983, Trent Hawkins, then thirteen years and 11 months old, broke into his neighbor's home through a window. The neighbor awoke to find Mr. Hawkins in her bedroom, brandishing one of her kitchen knives. After a brief struggle, he tied her with ropes and blindfolded her, then raped and sodomized her repeatedly. Throughout the two and a half hour episode, Mr. Hawkins threatened the victim with the knife and threatened to kill her children if she told the police. After the sexual assaults, Mr. Hawkins took seven dollars out of the victim's purse and fled.

A referee certified Mr. Hawkins to stand trial as an adult, and this decision was upheld on appeal by both the Tulsa County District Court and the Oklahoma Court of Criminal Appeals. A jury found Mr. Hawkins guilty of first degree burglary, robbery with a dangerous weapon, forcible sodomy, and second degree rape. The jury sentenced Mr. Hawkins to maximum sentences of twenty years for the burglary, twenty years for forcible sodomy, and fifteen years for rape, and to forty-five years out of a possible life sentence for robbery with a dangerous weapon. The trial judge ordered that these sentences be served consecutively, resulting in a total term of one hundred years. The Oklahoma Court of Criminal Appeals affirmed Mr. Hawkins' conviction and sentences. See Hawkins v. State, 742 P.2d 33 (Okla. Crim. App. 1987).

In 1991, Mr. Hawkins filed a federal habeas action pursuant to 28 U.S.C. 2254 wherein the district court denied relief. On appeal, this court remanded the case and ordered the district court to dismiss the petition without prejudice because Mr. Hawkins had not exhausted all of his claims in state court. See Hawkins v. Champion, No. 92-5072, 1992 WL 372598, at *3-4 (10th Cir. Dec. 18, 1992). Significantly for our purposes here, we also noted "[t]he district court did not undertake a full Eighth Amendment proportionality review of Mr. Hawkins' sentence." Id. at *4 (citing Harmelin v. Michigan, 501 U.S. 957 (1991)).

Mr. Hawkins filed an application for post-conviction relief in state court challenging his sentence as disproportionate in violation of the Eighth Amendment. The court denied relief, and the state court of criminal appeals affirmed. Mr. Hawkins then filed this petition in federal district court, which was referred to a magistrate judge for an evidentiary hearing and proportionality review. The Magistrate's Report and Recommendation included a detailed proportionality review and recommended denying the petition. The district court affirmed over Mr. Hawkins' objection, and he now appeals to this court. We review a district court's denial of a habeas corpus petition de novo. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

II.

At the outset, it is important to make clear what Mr. Hawkins does not argue. He is not disputing the state's initial decision to certify him to stand trial as an adult. Nor does he contend that the one hundred-year sentence he received would be disproportionate had it been imposed on an adult. Instead, Mr. Hawkins urges us to examine whether the consecutive sentences were constitutionally disproportionate in light of the fact that at the time he committed the crimes he was only thirteen years old.

A. The Eighth Amendment Proportionality Test

In order to decide this issue, we must first determine the correct analytic framework to apply to questions of proportionality. The Eighth Amendment's guarantee against "cruel and unusual" punishments has been most commonly read to bar unnecessarily painful or barbarous methods of punishment. See O'Neil v. Vermont, 144 U.S. 323, 339 (1892) (Field, J., dissenting). At the beginning of this century, the Supreme Court interpreted the Eighth Amendment to prohibit a sentence that was disproportionate to the offense. See Weems v. United States, 217 U.S. 349, 367 (1910) (invalidating a sentence of fifteen years in chains and at hard labor, plus permanent surveillance and civil disabilities, for the crime of falsifying a public document). The Court has continued to recognize the existence of a proportionality rule in noncapital cases, although it has made clear that "successful challenges to the proportionality of particular sentences should be exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272 (1980). See also Hutto v. Davis, 454 U.S. 370, 374 & n.3 (1982).

In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court articulated a three-part test for analyzing proportionality claims under the Eighth Amendment. It instructed courts to use "objective criteria" to evaluate: "(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." Id. at 292. Applying this analysis, the Court overturned a sentence of life in prison without possibility of parole for a nonviolent recidivist. This decision was the Court's sole instance of such a holding through the end of the decade, and it failed to precipitate a sweeping trend toward sentence reversals based on the Eighth Amendment. See Arthur W. Campbell, Law of Sentencing 8:20, at 217 & n.83 (2d ed., 1991).

The Court revisited the proportionality issue in Harmelin v. Michigan, 501 U.S. 957 (1991). The opinion was a fractured one, and it left the meaning of Solem less than clear. Justice Scalia, joined by the Chief Justice, argued that cruelty and unusualness are to be determined solely by reference to the punishment at issue, and without reference to the crime for which it was imposed. See id. at 976. Undertaking an extensive historical analysis of the Eighth Amendment, Justice Scalia concluded that "Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." Id. at 965.

Justice Kennedy, joined by Justices O'Connor and Souter, wrote separately to argue for the existence of a narrow proportionality guarantee. See id. at 996. His partial concurrence focused on the discretionary language in Solem, pointing out that Solem had merely said, "'it may be helpful to compare sentences imposed on other criminals in the same jurisdiction,' and that 'courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.'" Id. at 1005 (Kennedy, J., concurring) (emphasis in original) (quoting Solem, 463 U.S. at 291-92). Justice Kennedy interpreted this to mean that "comparative analysis within and between jurisdictions is not always relevant to proportionality review," and concluded that "intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. He did not outline specific criteria for courts to consider in making this threshold determination of gross disproportionality. The four dissenters in Harmelin argued for the continued application of all three prongs of the Solem test. See id. at 1018-22 (White, Blackmun, Stevens, JJ., dissenting); id. at 1027-28 (Marshall, J., dissenting).

Until now we have found it unnecessary to decide whether Harmelin in fact overruled or otherwise altered Solem, and what the correct proportionality analysis should be. See, e.g., United States v. Robertson, 45 F.3d 1423, 1447 (10th Cir. 1995); United States v. Angulo-Lopez, 7 F.3d 1506, 1510 (10th Cir. 1993). Other circuits have employed the following "head count" analysis to determine that Justice Kennedy's opinion is controlling. Seven members of the Harmelin Court (Kennedy, O'Connor, and Souter, JJ., concurring, and White, Blackmun, Stevens, and Marshall, JJ., dissenting) supported some Eighth Amendment guarantee against disproportionate sentences. However, five Justices (Scalia, J., and Rehnquist, C.J., writing the opinion of the Court, and Kennedy, O'Connor, and Souter, JJ., concurring) rejected the continued application of all three factors in Solem. The controlling position is the one "taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977). Thus, Justice Kennedy's opinion controls because it both retains proportionality and narrows Solem. See McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992); United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).¹

We find this reasoning persuasive and hold that Justice Kennedy's opinion in Harmelin narrows Solem and sets forth the applicable Eighth Amendment proportionality test. Accordingly, we examine Mr. Hawkins' sentence in relation to his crimes for "gross disproportionality." If we do not find...