Rummel v. Estelle

• Decision Date: 06 March 1978
• Docket Number: No. 76-2946,76-2946
• Citation: 568 F.2d 1193
• Parties: William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1193

568 F.2d 1193

William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.

No. 76-2946.

United States Court of Appeals Fifth Circuit.

March 6, 1978.

Rehearing Granted April 21, 1978.

William James Rummel, pro se.

Scott J. Atlas, Houston, Tex. (court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Joe B. Dibrell, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, GOLDBERG, and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Petitioner William James Rummel appeals the district court's denial of habeas corpus relief from state confinement. He complains that the enhanced sentence he received constituted cruel and unusual punishment in violation of the eighth amendment and that his court-appointed attorney rendered ineffective assistance of counsel in violation of his sixth amendment rights. Because we hold that Rummel's life sentence is so grossly disproportionate to his crimes that it violates the Cruel and Unusual Punishments Clause, we do not reach the question whether Rummel's trial counsel rendered adequate assistance.

In January 1973, a Texas grand jury indicted Rummel for the felony offense of obtaining $120.75 under false pretenses. The indictment also charged him with having two prior felony convictions: In 1964 he presented a credit card with the intent to defraud of approximately $80, and in 1969 he passed a forged instrument with a face value of $28.36. Rummel pled not guilty to the false pretense indictment, but a jury found him guilty as charged. After the state proved his two prior convictions, Rummel received an enhanced sentence of life imprisonment under the Texas habitual criminal statute then applicable, Tex. Penal Code Ann. art. 63 (Vernon 1925). ¹ On appeal, the Texas Court of Criminal Appeals affirmed his conviction. Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). Rummel applied for post-conviction relief and raised in the Texas courts the issues now before us, but his application was denied without a hearing. Then Rummel sought habeas corpus relief in the federal district court, which also denied his petition without a hearing.

Article 63 requires the trial court to sentence a defendant to life imprisonment upon a third conviction for any felony, without consideration of any lesser penalty. On its face, this statute does not violate the eighth amendment. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Rummel does not maintain that Article 63 as written violates the eighth amendment, but that Texas could not apply its inflexible life imprisonment stricture of Article 63 to him because it abridged his protection against cruel and unusual punishment. ²

In addition to limiting the kinds of punishment that a state may impose and placing substantive limits on what a state may declare criminal and punish as such, the Cruel and Unusual Punishments Clause proscribes amounts of punishment which are grossly disproportionate to the severity of the crime. Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711, 742 (1977). While the Supreme Court has yet to hold a sentence cruel and unusual for length alone, its reasoning never has suggested that a disproportionately long prison sentence would be immune from eighth amendment challenge. ³ In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1909), the Court held that a provision of the Philippine Code of Criminal Procedure allowing the imposition of a 15-year sentence to hard and painful labor in chains for a false entry on an official report violated the eighth amendment. The Court found the Code's minimum penalty of 12 years amazing in light of the American commonwealths' "precept of justice that punishment for crime should be graduated and proportioned to offense." 217 U.S. at 367, 30 S.Ct. at 549, 54 L.Ed. at 798. Subsequently, in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957), the Court overturned denationalization as a punishment for desertion from the military. An opinion by Chief Justice Warren, joined by three other members of the Court, put aside the death penalty as the index of the constitutional limit on punishment in these words:

(T)he existence of the death penalty (as punishment acceptable under the Constitution) is not a license to the Government to devise any punishment short of death within the limit of its imagination.

356 U.S. at 99, 78 S.Ct. at 597, 2 L.Ed.2d at 641. Justice Brennan, concurring, also judged the constitutionality of the punishment by its proportion to the crime:

(T)he severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment.

356 U.S. at 111, 78 S.Ct. at 603, 2 L.Ed.2d at 648.

Recently, in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the Supreme Court amplified the proportionality component of the eighth amendment by holding that a punishment clearly permissible for some crimes is constitutionally disproportionate for others. In Coker, the plurality opinion by Justice White, and Justice Powell's opinion concurring in the judgment of the Court, stressed disproportionality in holding that Georgia may not execute a defendant for rape. Both of these opinions emphasized that to the maximum possible extent, objective factors must inform the decision whether a particular punishment violates the eighth amendment. The Chief Justice's dissent challenged not the disproportionality approach, but the conclusion that death was in fact an excessive penalty for the crime of rape. Thus, Coker heralds a more exacting weighing of the relationship of the punishment to the crime, governed by objective factors.

Coker involved capital punishment, but that is not the only sentence which can be disproportionate. A sentence to imprisonment for life is surely not so lenient as to be unquestionably proportional under the eighth amendment wherever a state might impose it. Texas points out that a life sentence under its law amounts to less than a life sentence because a prisoner becomes eligible for parole after serving 20 years. With good conduct credit, eligibility accrues in 12 years; and with trusty status, in ten years. Texas argues that we should view its recidivist statute as a requirement that a defendant with two or more prior felonies prove himself within the prison system to achieve early release. Therefore, since a well-behaved prisoner could receive a term not grossly disproportionate for one committing a third offense, Texas argues that this court should not equate Rummel's sentence with one for actual incarceration for life.

The grant or denial of parole by a state, in the absence of some unusual circumstance, is not reviewable in federal court. If Rummel has a constitutional right not to be committed to prison for the remainder of his life to punish his offenses, then Texas may not deprive him of that right by suggesting it may be willing to interdict its denial by the future exercise of discretion which we have characterized as a matter of administrative grace. ⁴ Indeed, if the proportionality of Rummel's sentence and hence its constitutionality depended upon the availability of parole, we would have to make a careful review of procedures and evidence in state parole proceedings, since the availability of parole in fact and the accuracy of individual parole decisions then would measure constitutional dimensions.

In most jurisdictions, a sentence to imprisonment for life now stands in the place where the death penalty stood earlier in this century the ultimate punishment imposed by this society for those crimes most abhorrent to it. Therefore, the question of the proportionality of Rummel's life sentence to the crime of which he was convicted deserves a consideration which may be unnecessary for a lesser sentence. ⁵

Rummel draws support for his eighth amendment claim from Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). In Hart the Fourth Circuit held that a sentence imposed under a West Virginia recidivist statute was cruel and unusual based on length alone because it was grossly disproportionate to the crimes involved. The state court enhanced Hart's punishment for committing perjury at his son's murder trial to life imprisonment on the basis of a 1949 conviction for writing a $50 check on insufficient funds and a 1955 conviction of interstate transportation of forged checks worth $140. In determining that the West Virginia statute violated the eighth amendment as applied to Hart, the Fourth Circuit considered cumulatively (1) the nature of the offense, (2) the legislative purpose behind the punishment, (3) the punishment that the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction.

The analysis in Hart is not inconsistent with our prior applications of the Cruel and Unusual Punishments Clause. We have held that a punishment violates the eighth amendment only if it "is so greatly disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice." Rogers v. United States, 304 F.2d 520, 521 (5th Cir. 1962). But we have never set forth in detail those factors which determine whether this standard has been met where the nature of the offense alone does not confirm the proportionality of the punishment. Some decisions of this circuit have cited Hart approvingly. ⁶ However, because each of these cases involved at least one offense presenting a potential for violence, a strong social interest, or...