Goss v. Bomar, 15572.

Decision Date08 October 1964
Docket NumberNo. 15572.,15572.
Citation337 F.2d 341
PartiesEdward Donald GOSS, Petitioner-Appellant, v. Lynn BOMAR, Warden, Tennessee State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

George H. Palmer (court appointed), Cincinnati, Ohio, for appellant.

Henry C. Foutch, Nashville, Tenn. (George F. McCanless, Atty. Gen., and Reporter, State of Tennessee, of counsel), for appellee.

Before PHILLIPS and EDWARDS, Circuit Judges, FOX, District Judge.

EDWARDS, Circuit Judge.

This appeal is brought by a prisoner in a Tennessee penitentiary from a denial of a petition for writ of habeas corpus. Petitioner was convicted in 1957 on two indictments: the first resulted in a five-year sentence for burglary, which he has now served completely; the second was an indictment based on the burglary charge and prior offenses against property for being an habitual criminal. On being found such by a Tennessee jury, petitioner was sentenced mandatorily under Tennessee law to a life sentence without possibility of parole. Tenn.Code Annotated, § 40-2806.

Prior to the indictments which resulted in petitioner's current incarceration, he had been convicted in 1948 of larceny of an automobile, and in 1951 for two offenses of burglary of places of business, and one offense of receiving stolen property. The 1951 offenses occurred in a period of seventeen days and petitioner was tried and convicted on all three on the same day.

Petitioner has argued with vigor and without success before the Supreme Court of Tennessee (once on direct appeal and once on a petition for writ of habeas corpus)1 that these latter three convictions, because of proximity of time and trials, should be considered one offense under Tennessee's habitual criminal law. However, the principal ground for relief cited before the United States District Court and before us is that the life sentence without possibility of parole is so grossly excessive and disproportionate to his offenses as to constitute "cruel and unusual punishment" which is prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States.

Relying upon early case precedent which has upheld habitual criminal statutes against Eighth Amendment attack, the United States District Judge denied the writ. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).

In 1912 when Graham v. West Virginia, supra, was decided, there was great doubt as to whether the Eighth Amendment could be said to constitute a restriction upon the individual states. This has now been authoritatively decided in a 1962 case wherein the prohibition of the Eighth Amendment has been held to be applied to the states through the action of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). See also State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); N. A. A. C. P. v. Williams, 359 U.S. 550, 79 S.Ct. 947, 3 L.Ed.2d 1023 (1959).

It is clear from these cases and the leading interpretation of the Eighth Amendment's basic meaning (Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910)) that the prohibition upon cruel and unusual punishment is to be enforced in relation to modern concepts of what constitutes "cruelty" and what is "unusual" as of the present time.

"Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, `designed to approach immortality as nearly as human institutions can approach it.\' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be." Weems v. United States, supra at 373, 30 S.Ct. at 551.

Speaking of this case, Chief Justice Warren said for the United States Supreme Court:

"The Court recognized in that case Weems v. United States, supra that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (Footnote omitted.) Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958).

Habitual criminal statutes, although rare in the criminal codes of other nations, are by no means unusual in the United States. They exist in 44 of the 56 states and separate federal jurisdictions.2

Nor are...

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6 cases
  • State v. Iaukea
    • United States
    • Hawaii Supreme Court
    • June 16, 1975
    ...with an offense punishable by life imprisonment.10 See, Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Goss v. Bomar, 337 F.2d 341 (6th Cir. 1964); Jordan v. Fitzharris, 257 F.Supp. 674 (D.C., 1966); Austin v. Harris, 226 F.Supp. 304 (D.C., 1964); Bongiorno v. Ragen, 54 F.......
  • Willoughby v. Phend
    • United States
    • U.S. District Court — Northern District of Indiana
    • July 7, 1969
    ...U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965) (administration of sentence); Goss v. Bomar, 337 F.2d 341 (6th Cir. 1964); Dembowski v. State, supra. Cf. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L. Ed.2d 1030 (1964); United States ex rel. Kn......
  • Dembowski v. State, 0--871
    • United States
    • Indiana Supreme Court
    • October 16, 1968
    ...335, 83 S.Ct. 792, 9 L.Ed.2d 799; Robinson v. State of California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; Goss v. Bomar (1964, CA6 Tenn.), 337 F.2d 341. While the usual appeal to the Supreme Court of the United States invokes the Amendment's privilege against cruel and unusual p......
  • People v. Mosley
    • United States
    • New York County Court
    • August 20, 1974
    ...but what is cruel and unusual today. Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. As stated in Goss v. Bomar, 6 Cir., 337 F.2d 341, 343 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' Seco......
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