Holley v. Smith, 85-7673
| Citation | 792 F.2d 1046 |
| Decision Date | 30 June 1986 |
| Docket Number | No. 85-7673,85-7673 |
| Parties | Johnny HOLLEY, Jr., Petitioner-Appellant, v. Freddie V. SMITH, Commissioner, and W.E. Johnson, Warden, Respondents-Appellees. Non-Argument Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Drake, Knowles & Pierce, Ralph I. Knowles, Jr., Sogol & Chandler, Joel Sogol, Tuscaloosa, Ala., Barry E. Friedman, Washington, D.C., for petitioner-appellant.
Joseph G.L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Alabama; CLARENCE W. ALLGOOD, Senior District Judge.
Before RONEY and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
Johnny Holley, Jr. was convicted of first degree robbery in Alabama and sentenced to life without parole pursuant to Alabama's Habitual Felony Offender Act. Denied habeas corpus relief from that sentence in the district court, Holley argues that he was entitled to an evidentiary hearing on the issue of proportionality under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
The decision in this case is controlled by Seritt v. State of Alabama, 731 F.2d 728 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 545, 83 L.Ed.2d 433 (1984). The magistrate's Report and Recommendation, adopted by the district court as its opinion, and set forth here as an appendix, carefully responds to all arguments counsel has repeated on this appeal.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ALABAMA WESTERN DIVISION
JOHNNY HOLLEY, JR., Petitioner,
-vs-
W.E. JOHNSON, Warden; and, FREDDIE V. SMITH, Commissioner,
Respondents.
July 23, 1985.
On this petition Holley claims that a sentence of life imprisonment without possibility of parole is disproportionate to the crime for which he was convicted and, thus, constitutes cruel and unusual punishment under the United States Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). He does not challenge the constitutionality of Alabama's Habitual Offender Act itself, but, rather "challenges the constitutionality of that act as applied to the facts and circumstances of his case."
Respondent claims petitioner has failed to exhaust state remedies since he has not presented the Solem proportionality claim in state court. On direct appeal, and in at least one petition for the writ of error coram nobis, Holley claimed that his "sentence [was] grossly out of proportion to the severity of the crime." Solem was decided two and one-half years after decision of the Alabama Court of Criminal Appeals on Holley's direct appeal. Respondents argue, in effect, that the petitioner must return to the state courts to present his Solem claim because the Alabama Court of Criminal Appeals did not have the benefit of that decision at the time it considered his eighth amendment claim on direct appeal. Authoritative decisional law in this circuit answers the claim.
A petitioner may not be required to exhaust his claim if a change in the law occurs between the exhaustion of available state remedies and the filing of a petition for federal habeas corpus. If the change provides an effective state procedure, Texas v. Payton, 390 F.2d 261, 270 (5th Cir.1968), or a fundamental variation in substantive federal law, the petitioner generally will be required to return to the state courts.
Galtieri v. Wainwright, 582 F.2d 348, 355 (5th Cir.), reh. denied, 587 F.2d 508 (1978). 4
Clearly, Solem did not provide any effective state procedure which was not available to Holley earlier. Likewise, it was not a fundamental departure from existing federal law. Constitutional principles regarding proportionality were recognized by the United States Supreme Court in 1910. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). In 1980 the court considered a proportionality claim in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In reality, Solem did nothing more than to apply long established principles to the particular facts of that case. Because Holley presented the substance of his federal habeas claim in state court, he has exhausted state remedies and cannot be compelled to return there.
The facts necessary to a decision in this matter were found by the Alabama Court of Criminal Appeals. 5
Johnny Holley, Jr., was convicted by a jury in Tuscaloosa County for robbery in the first degree and later was sentenced to life without parole when the Alabama Habitual Felony Offender Act was invoked upon a showing of seven prior felony convictions.
Johnny Holley, Jr. was identified by witnesses as the man they saw on Sunday, January 13, 1980, outside the Chapel A.M.E. Zion Church in Tuscaloosa County, carrying a box of tools away from a truck belonging to Baylock Sledge. No one saw him break into the truck, and when Holley was accosted he stated that he had bought the tool box. When Sledge and others pursued the appellant, Holley set the box down, pulled a knife and moved toward Sledge. As Sledge and the others drew near, Holley warned, "Don't come up on me or I'll cut the hell out of you." He started to "wave" the knife, but then turned and ran away. The next day the appellant was arrested after being chased into a wooded area.
After the State completed its case, the appellant made a motion to exclude the State's evidence because the State had failed to make out a prima facie case. The motion was denied and the appellant rested his case without presenting any evidence.
Subsequently, the jury returned a guilty verdict and the court adjudged the appellant guilty in accordance with the jury's verdict. Afterwards, the State requested a sentencing hearing so that evidence could be presented as to the accused's record.
A sentencing hearing was held after the appellant had been given reasonable notice. At the hearing, the appellant was represented by counsel and no objection was made to the sentencing hearing, nor was there a motion for a continuance.
During the sentencing hearing the State produced certified copies of judgment entries of seven prior felony convictions. 6 Also, the State offered testimony of a police officer who had known the appellant for ten years and testified concerning his knowledge of two grand larcenies and one burglary in which the appellant had been involved.
The appellant did not produce any witnesses during the sentencing hearing, but his attorney did take advantage of the opportunity to cross-examine one of the two State witnesses.
At the completion of the sentencing hearing and arguments by the parties, the trial court found that the appellant, after having been previously convicted of seven felonies in Alabama, committed the offense of robbery in the first degree. The court therefore sentenced appellant to imprisonment for life without parole, pursuant to Section 13A-5-9(c)(3), Code of Alabama 1975.
In the opinion of the court the disposition of this case is governed by Seritt v. State of Alabama, 731 F.2d 728 (11th Cir.), cert. denied [--- U.S. ----], 105 S.Ct. 545 (1984). For that reason no evidentiary hearing is required and no discovery is appropriate.
The federal habeas petitioner has the burden to establish the need for an evidentiary hearing. Williams v. Griswald, 743 F.2d 1533 (11th Cir.1984); Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984) (en banc). The threshold inquiry in deciding whether a hearing should be held is whether the petitioner's allegations, if proved, would establish the right to habeas corpus relief. Townsend v. Sain, 372 U.S. 293, 307 S.Ct. 745, 754, 9 L.Ed.2d 770, 782 (1963); Birt v. Montgomery, supra, at 591, quoting Townsend. In evaluating a request for a hearing a court must "consider the allegations of the defendant's habeas petition and supplement the petition with those facts undisputed on the record below." Birt v. Montgomery, supra, at 591; see Cronnon v. Alabama, 587 F.2d 246, 249 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979).
The rules governing discovery in ordinary civil cases are applicable to petitions for the writ of habeas corpus only to the extent authorized by the court for good cause shown. Rule 6, Rules Governing Section 2254 Cases in the United States District Courts. The petitioner seeks authority from the court to engage in discovery for the purpose of gathering evidence relevant to such questions as: What sentences are imposed in Alabama against persons convicted for the first or second time of serious offenses such as murder and rape? What sentences are actually imposed for convictions based upon conduct of similar seriousness to that of the petitioner? How many persons subject to the habitual offender law escape its provisions through plea bargaining?
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