Smallwood v. Johnson

• Decision Date: 23 January 1996
• Docket Number: No. 94-20642,94-20642
• Citation: 73 F.3d 1343
• Parties: Simon SMALLWOOD, Petitioner-Appellant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1343

73 F.3d 1343

Simon SMALLWOOD, Petitioner-Appellant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 94-20642.

United States Court of Appeals Fifth Circuit.

Jan. 23, 1996.

As Corrected Jan. 25, 1996.

Simon Smallwood, Huntsville, TX, pro se.

Elizabeth Elleson, Asst. Atty. Gen., Austin, TX, for appellee.

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

Before GARWOOD, DUHE and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Simon Smallwood (Smallwood) appeals the district court's grant of respondent-appellee's motion for summary judgment and dismissal of his habeas corpus petition under 28 U.S.C. Section 2254. We affirm.

Facts and Procedural Background

Smallwood was arrested exiting the Fiesta Mart grocery store at 5800 Lyons Avenue in Houston, Texas with three unpaid for packages of meat concealed on his person. This property had a total value of $27.64, and Smallwood was charged with theft of property under the value of $750.

The indictment contained two paragraphs also charging that Smallwood had been convicted of theft on two prior occasions; these convictions upgraded the offense of conviction--otherwise a class B misdemeanor--to a third degree felony. Tex.Penal Code Ann. Sec. 31.03(e)(4)(E). ¹

The indictment contained two additional paragraphs charging that Smallwood had been previously convicted of two felonies, burglary of a building and unlawful possession of a controlled substance. Accordingly, the Texas habitual offender statute was invoked, and Smallwood's sentencing range increased to 25 to 99 years, or life. Tex.Penal Code Ann. Sec. 12.42(d).

At trial, the officer from the Loss Prevention Office who apprehended Smallwood testified that he first observed Smallwood on the store's surveillance camera picking up meat in the store's meat department. He subsequently witnessed Smallwood appear in an express check-out lane, where Smallwood purchased a container of juice and a loaf of bread. This officer, assisted by a colleague from the Loss Prevention Office, stopped Smallwood as he exited the store. Asked about Smallwood's reaction to this initial detention, the officer testified that Smallwood said, "I know what it's about. I'm not going to fight you. I just needed this." A search of Smallwood produced a total of three packages of meat which Smallwood had secreted in his pants, partially hiding the bulges with his untucked shirt. On June 4, 1990, the jury found Smallwood guilty of the charge as a felony by virtue of the two prior theft convictions, and at the subsequent punishment stage, after receiving evidence that he had nine prior felony convictions, sentenced Smallwood to 50 years imprisonment. Smallwood's sentence carries the possibility of parole within twelve and one-half years.

On direct appeal, the judgment of the trial court was affirmed ², and discretionary review was subsequently refused by the Texas Court of Criminal Appeals on May 20, 1992. Smallwood's writ of habeas corpus was denied by the Texas Court of Criminal Appeals on September 8, 1993, and Smallwood then filed the instant petition for writ of habeas corpus in the district court below (in forma pauperis ) on September 27, 1993. The district court granted respondent's motion for summary judgment on August 16, 1994, concurrently ordering the dismissal of Smallwood's petition.

Smallwood now brings this appeal. ³

Discussion

Smallwood presents four points of error. We discuss these seriatim.

Smallwood's first point is that the district court erred in its application of the Supreme Court's decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), to Smallwood's claim that his sentence of fifty years for misdemeanor theft--made a felony by virtue of being a third theft conviction, and enhanced pursuant to Texas' habitual offender statute--is grossly disproportionate to his crime in violation of the Eighth Amendment. Smallwood contends that the district court should instead have applied the guidelines for reviewing Eighth Amendment claims set out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). ⁴ We disagree.

In Rummel, the Supreme Court held that a sentence of life imprisonment with an opportunity for parole after twelve years did not constitute cruel and unusual punishment in a situation where the defendant, convicted of obtaining $120.75 by false pretenses, had two prior felony convictions. In so holding, the Court emphasized a point clearly relevant to Smallwood's contentions of disproportionality: recidivist statutes punish not only the offense of conviction but also the "propensities" of the defendant demonstrated by his prior convictions for other crimes. Id. at 283-285, 100 S.Ct. at 1144-1145; see also McGruder v. Puckett, 954 F.2d 313, 316 & n. 3 (5th Cir.), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).

In Solem, the Supreme Court held that a sentence of life imprisonment without the possibility of parole--imposed against a defendant convicted of uttering a worthless check in the amount of $100--violated the Eighth Amendment's prohibition against cruel and unusual punishment. The defendant's sentence had been enhanced pursuant to a South Dakota recidivist statute. 463 U.S. at 296-97, 103 S.Ct. at 3013. In reaching its decision, the Supreme Court enumerated several criteria to be considered in determining whether a sentence is unconstitutionally disproportionate to the offense: (1) the gravity of the offense relative to the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same offense in other jurisdictions. Id. at 292-94, 103 S.Ct. at 3011. The Court distinguished Rummel on its facts and stated that Rummel was controlling only in a similar factual situation. Id. at 296-297, 300-305 & n. 32, at 3013, 3015-3017 & n. 32.

This Court has noted that Rummel survived Solem, and controls in cases with factual situations not "clearly distinguishable" from Rummel. Burt v. Puckett, 933 F.2d 350, 352 (5th Cir.1991). We also recently observed that the Supreme Court's opinion in Solem must be viewed in light of Harmelin v. Michigan, supra, which upheld the imposition of a sentence of life imprisonment without possibility of parole against a defendant convicted of possessing more than 650 grams of cocaine. McGruder v. Puckett, supra, 954 F.2d at 315. In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of "gross disproportionality." 501 U.S. at 1005, 111 S.Ct. at 2707. Based on Harmelin, we concluded that "[o]nly if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test ..." McGruder, 954 F.2d at 316.

This Court has grappled with this threshold determination of gross disproportionality on at least two occasions. In McGruder, we noted that the defendant had a record of prior convictions which included two separate convictions for armed robbery. Considering that McGruder's prior convictions included two crimes of violence per se, and that Rummel's predicate offenses were "non-serious"--passing a bad check and passing a forged check--and further considering that Rummel nevertheless received a mandatory life sentence with a possibility of parole, this Court concluded that "[t]here can be no argument, in the light of Rummel, that McGruder's sentence is disproportionate, much less grossly disproportionate, to his offense.... Rummel's record of offenses was much less grave than McGruder's." Id. at 317.

We applied a similar analysis in Duhr v. Collins, No. 93-8169, 20 F.3d 469 (5th Cir. Mar. 29, 1994) (unpublished). In Duhr, the indictment charged the defendant with misdemeanor DWI and alleged three prior DWI convictions, the charged misdemeanor DWI offense accordingly becoming a felony. No. 93-8169 at 2. Furthermore, Duhr's prior convictions for possession of marihuana, theft by taking and three separate check thefts combined to expose him to a maximum enhanced sentence of 99 years, with possibility of parole; the jury sentenced Duhr to 99 years. Id. ⁵ In deciding to follow the Supreme Court's reasoning in Rummel, we concluded that:

"As in Rummel, none of Duhr's convictions were for crimes of violence. However, as the district court observed, felony DWI is arguably a more serious crime than the theft conviction at issue in Rummel due to the obvious threat drunk drivers pose to other motorists and pedestrians." Id. at 9.

McGruder and Duhr may provide a litmus test of sorts for determining whether a sentence is grossly disproportionate to an offense. The present case, however, involves a situation in which the gravity of Smallwood's prior convictions and offense of conviction do not plainly "exceed" the gravity of the corresponding offenses in Rummel. Rummel's conviction for obtaining $120.75 by false pretenses was enhanced based on his prior felony convictions for (1) fraudulently using a credit card to obtain $80 worth of goods and services and (2) passing a forged check in the amount of $28.36. 445 U.S. at 263, 100 S.Ct. at 1133. Smallwood's felony conviction for theft of goods valued at $27.64, after two prior theft convictions, was enhanced based on his prior felony convictions for burglary of a building and unlawful possession of a controlled substance. The district court rightly considered Rummel's conviction for obtaining $120 by false pretenses and Smallwood's theft of $27.64 worth of goods to be at least "of similar gravity and thus not distinguishable for the purposes of Eighth Amendment analysis." Furthermore, Smallwood's prior non-theft convictions could likewise be characterized as comparable in magnitude to Rummel's. Therefore, the...