Marrero v. Dugger, 85-3746

Citation823 F.2d 1468
Decision Date07 August 1987
Docket NumberNo. 85-3746,85-3746
PartiesBenito MARRERO, Petitioner-Appellant, v. Richard L. DUGGER and Jim Smith, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Donald S. Cambas, Lakeland, Fla., for petitioner-appellant.

Peggy A. Quince, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, GODBOLD, Circuit Judge and ATKINS *, Senior District Judge.

GODBOLD, Circuit Judge:

Benito Marrero petitioned for habeas corpus relief, alleging three constitutional violations: consecutive sentences imposed on him totalling 240 years were disproportionate to the crime and constituted cruel and unusual punishment in violation of the Eighth Amendment; the admission of custodial statements violated his Fifth Amendment right against self-incrimination; and his trial and sentence under a statute that was amended before trial denied him due process and equal protection.

The district court rejected all three of Marrero's claims. This court affirmed. Marrero v. Wainwright, 690 F.2d 906 (11th Cir.1982). The Supreme Court vacated our decision and remanded for further consideration in light of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Marrero v. Wainwright, 463 U.S. 1223, 103 S.Ct. 3567, 77 L.Ed.2d 1407 (1983). This court, in turn, remanded to the district court for reconsideration under Helm. Marrero v. Wainwright, 715 F.2d 578 (11th Cir.1983).

On remand the district court concluded that the only issue properly before it was Marrero's claim that his sentence constituted cruel and unusual punishment because this was the only issue addressed in Solem v. Helm. We agree. The district court did not, however, comply with the mandate of the Supreme Court requiring that on remand the Eighth Amendment claim be reconsidered under Helm. The case must therefore be reversed and remanded to the district court for compliance with the Supreme Court's directive.

Marrero entered 12 unoccupied rooms in the same motel, each having a different key, during three days over a period of a month, and stole a television set from each room. 1 The motel is located at the intersection of Interstate Highway 75 and State Road 54, in a rural area of Florida. The Florida map reveals that this road intersection is in Pasco County, a largely rural county north of Tampa, which abuts the Gulf of Mexico on the west and has only one sizable town.

Marrero was charged in three separate informations. They alleged a total of 12 counts of breaking and entering 2 and 12 counts of grand theft of a television set. 3 A jury convicted Marrero of all 24 counts. He was given 12 "stacked" maximum 15 year sentences for the 12 breaking and entering charges, plus 12 "stacked" maximum five year sentences for the 12 thefts, a total of 20 years for the two offenses committed in each of 12 rooms, a grand total of 240 years. 4

A U.S. magistrate first considered Marrero's federal petition in 1980 and recommended denying relief. In 1981 the district court entered an order stating that it had considered the magistrate's report and recommendation and made an independent examination of the file and that the petition was denied. The court did not adopt the magistrate's findings or accept his report and gave no further reasons for its decision.

Marrero appealed, and in 1982 this court rejected Marrero's Eighth Amendment argument and his other contentions, without any comment other than a conclusory statement that they lacked merit. 690 F.2d 906.

In 1983 the Supreme Court decided Helm. The Court held that the constitutional principle of proportionality applies to felony prison sentences under the Eighth Amendment:

In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (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.

Helm, 463 U.S. at 292, 103 S.Ct. at 3010. In applying this framework to Helm's sentence of life imprisonment without parole the Supreme Court had to distinguish Rummel, in which it had found that a life sentence mandated by a Texas recidivist statute did not violate the Eighth Amendment. In Helm the Court emphasized that the possibility of parole had been critical to its decision that Rummel's sentence was not cruel and unusual punishment and that Helm's sentence of life imprisonment without possibility of parole clearly distinguished it from Rummel. Id. at 297, 303 n. 32, 103 S.Ct. at 3013, 3017 n. 32. Thus, while the possibility of parole was a significant factor in the analysis of proportionality, it was simply one factor relevant to prong (i) of the proportionality analysis, which included but was not limited to the three stated factors.

When reconciling its decision in Helm with Rummel the Court made it clear that Rummel had only rejected "a proportionality challenge to a particular sentence" and that, because Rummel "offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation." Id. at 303 n. 32, 103 S.Ct. at 3017 n. 32. A "similar factual situation" is narrower than that class of cases in which there is a possibility of parole; a contrary interpretation would render Helm applicable only in those cases where a defendant is not eligible for parole--a limitation that would be inconsistent with the reasoning in that case. In Helm the Court did not say that the possibility of parole would always be sufficient to save a sentence from being struck down under the Eighth Amendment, nor did it say that the availability of parole negated the need to review the sentence for proportionality under the three-part framework it had just delineated. To the contrary, the Court said that criminal sentences are subject to proportionality review and that even a single day in prison may be unconstitutional in some circumstances. Id. at 290, 103 S.Ct. at 3009.

When this case reached the district court on remand, the court granted Marrero's motion for leave to file a supplemental brief. In his supplemental memorandum of law Marrero set out the proportionality analysis language of Helm that is quoted above. In the appendices to his memorandum and in supplemental filings Marrero tendered data relevant to prong (ii) (the sentences imposed on other criminals in the same jurisdiction) of Helm. He offered data tending to show that the punishment in Florida for a number of violent and heinous crimes, including murder, manslaughter, assault, battery, rape, kidnapping, false imprisonment, and arson, would have been less than that imposed upon him at sentencing. He filed statistical data received from the Florida Department of Corrections, offered to show that of 26,473 inmates in Florida as of March 28, 1984 less than 300 had sentences of 100 years or greater (life and death sentences excluded), and the majority of these were for murder, sexual offenses, and robbery. 5 Relevant to prong (iii) (sentences imposed for commission of the same crime in other jurisdictions), Marrero discussed at length the American Bar Association's Standards for Criminal Justice, 18-4.5 (2d ed. 1982), and the statutes of a number of other states. In a supplemental filing he presented data tending to show that of an estimated 274,564 state inmates in 1979, only .8 of 1% had sentences of 98 years or more. See Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics-1982 at 547 (T. Flanaga & M. McLeod 1982) (source of data).

Additionally, Marrero moved for funding under the Criminal Justice Act to obtain the services of a statistical expert, pointing out that Helm required comparison of penalties meted out in other states.

In his report and recommendation to the district court, the magistrate noted that the parties thought that statistical analysis was necessary to comply with the mandate of the Supreme Court requiring reconsideration under Helm. But he skirted this view, skirted the statistical data submitted by Marrero, and skirted the request for CJA-authorized expenses to adduce further statistical data by holding that "extensive analysis" was not required. Having rejected "extensive" analysis (at least statistical, and presumably otherwise), the magistrate reached a conclusion based on the availability of parole to Marrero. The magistrate wrote:

To date, counsel for the parties and, indeed, the undersigned, have assumed that a full scale, extensive statistical analysis would be required in order to satisfy the mandate of the Supreme Court in this case. A review of the cases decided subsequent to Solem has now convinced me to the contrary. Solem, supra, does not require extensive analysis with respect to every excessiveness issue. The Court in Solen [sic] expressly did not require extensive analysis with regard to every petition for habeas corpus relief raising the Eighth Amendment proportionality issue.

The Solem majority opinion noted that its decision was not inconsistent with Rummel v. Estelle, 445 U.S. 263 [100 S.Ct. 1133, 63 L.Ed.2d 382] (1980), and that Rummel was controlling in similar fact situations.

In Rummel the petitioner was sentenced to life imprisonment for a series of rather minor offenses with eligibility for a reasonably early parole. In Helm the petitioner was sentenced to life imprisonment with no possibility for parole. The Supreme Court specifically distinguished Solem from Rummel on the basis of the availability of parole, although other distinguishing factors were noted. In the instant case, although the petitioner has been sentenced to a long sentence, he, like Rummel but unlike Helm, will be eligible for early release.

(footnotes omitted). The...

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3 cases
  • U.S. v. Elkins
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 29, 1989
    ...violate the Eighth Amendment. Federal courts thus must conduct a proportionality review of sentences imposed. See Marrero v. Dugger, 823 F.2d 1468, 1473 n. 7 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1235, 1247, 99 L.Ed.2d 434 (1988). This proportionality review is extremely l......
  • Williams v. Johnson, 86-7486
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 20, 1988
    ...in Rummel and Solem. However, the possibility of parole is not dispositive of the proportionality question. See Marrero v. Dugger, 823 F.2d 1468, 1472 (11th Cir.1987), cert. denied, --- U.S. ----, ----, 108 S.Ct. 1235, 1247, 99 L.Ed.2d 434, 445 (1988). In Marrero, a divided panel of this Co......
  • Adams v. Dugger, 87-5949
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 2, 1988
    ...L.Ed.2d 637 (1983), requires the federal court to engage in a proportionality review of his sentence. Adams relies upon Marrero v. Dugger, 823 F.2d 1468 (11th Cir.1987), cert. denied, --- U.S. ----, ----, 108 S.Ct. 1235, 1247, 99 L.Ed.2d 434, 445 (1988), which contrasted Solem v. Helm with ......

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