Adams v. Dugger, 87-5949
| Decision Date | 02 August 1988 |
| Docket Number | No. 87-5949,87-5949 |
| Citation | 850 F.2d 1495 |
| Parties | Eugene G. ADAMS, Petitioner-Appellant, v. Richard L. DUGGER, Superintendent, Florida Dept. of Corrections, Respondent-Appellee. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
R.H. Bo Hitchcock, Hitchcock & Cunningham, P.A., Fort Lauderdale, Fla., for petitioner-appellant.
Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, Chief Judge, and TJOFLAT and CLARK, Circuit Judges.
Petitioner Eugene G. Adams was convicted in a Florida court in December 1977 of second-degree sexual battery, attempted second-degree murder, kidnapping and possession of a firearm during the commission of a felony in connection with the abduction of a 12-year-old girl. During the incident, he shot in the chest with a .357 magnum a highway patrol trooper who survived only because he was wearing a bullet-proof vest. Adams contends that his sentence to consecutive prison terms totalling 144 years for the four offenses is disproportionate to the crimes for which he was convicted, and, thus, violates the Eighth Amendment's prohibition against cruel and unusual punishment. The district court denied habeas corpus relief. We affirm.
Adams argues that Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 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 Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and held that, under the facts of that case, the sentence had to be examined under the criteria established by Solem v. Helm.
We have serious doubts that the Eighth Amendment concerns in those cases would have any application at all to the violent crimes of sexual battery, attempted murder, and kidnapping which Adams committed. In Helm, the petitioner was sentenced under a recidivist statute to life in prison with no possibility of parole for the offense of uttering a "no account" check for $100. In Rummel, the Court upheld a life sentence imposed, pursuant to a Texas recidivist statute, for obtaining $120.75 under false pretenses. The non-violent nature of those crimes, and of the prior similar crimes that triggered the life sentences, was undoubtedly at the crux of the concern for the allegations that the sentences contravened the proscription of the Eighth Amendment.
It would appear to be almost frivolous to suggest that Adams' crimes deserved the same concern. Clearly, attempted murder of a police officer, kidnapping and sexual assault on a young girl are among the most serious and violent crimes prohibited by modern penal codes. In a pre-Solem v. Helm case, in which a life sentence for an armed robbery that netted but $71.00 was attacked as excessive, we said "the violent nature of the offense alone makes such an attack almost frivolous." Brown v. Wainwright, 576 F.2d 1148, 1149 (5th Cir.1978).
In any event, assuming his case does deserve consideration under Solem v. Helm, it appears that the Report of the Magistrate, attached hereto as an appendix, which formed the basis for a denial of relief by the district court, after independent We simply note a few other cases which put this case in proper context. On similar facts, the Fifth Circuit upheld a 99-year sentence with no possibility of parole for a first-time offender in Passman v. Blackburn, 797 F.2d 1335, 1350-51 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1609, 94 L.Ed.2d 794 (1987). The court noted that the particular circumstances of the armed robbery warranted a severe sentence. The victims were robbed in their home, one of the victims, a 78-year-old man was shot and seriously wounded, and another victim, a 16-year-old girl, testified that Passman sexually abused her. See also United States v. Gourley, 835 F.2d 249, 253 (10th Cir.1987) (), cert. denied, --- U.S. ----, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); Stevens v. Armontrout, 787 F.2d 1282 (8th Cir.1986) (); United States v. O'Driscoll, 761 F.2d 589 (10th Cir.1985) (), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986); United States v. Darby, 744 F.2d 1508, 1527 (11th Cir.1984) (), cert. denied sub nom., Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985).
review, adequately handled the petition.
It should be noted that the state contends without contradiction that Adams is eligible to earn gain time, can be considered for parole, and, in fact, has been assigned a presumptive parole release date of August 4, 1995. Although not dispositive, the eligibility for parole was seen as particularly significant by the Court in Rummel.
AFFIRMED.
APPENDIX
EXHIBIT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
EUGENE ADAMS, Petitioner,
v.
RICHARD L. DUGGER, Respondent.
Case No. 87-6513-Civ-NESBITT
Eugene Adams, a state prisoner confined at the Union Correctional Institution at Belle Glade, Florida, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, with the aid of counsel, attacking the Constitutionality of his sentences for sexual battery, kidnapping, attempted second degree murder, and possession of a firearm, entered on February 1, 1978, after jury trial in Case No. 77-5761CF in the Circuit Court of the Nineteenth Judicial Circuit of Florida, at Broward County.
This Cause has been referred to the undersigned for preliminary consideration and report pursuant to 28 U.S.C. Sec. 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
For its consideration of this petition, the Court has the response of the State to an Order to Show Cause, which was filed together with multiple documentary exhibits.
The petitioner raises two issues, as follow:
1. Whether his sentences totalling 144 years confinement are disproportionate to the offenses committed, in violation of the Eighth Amendment.
2. Whether the Trial Court failed to consider the presentence investigation report and sentenced him solely on the basis of the crimes committed, thereby denying him Due Process.
These convictions were affirmed on direct appeal. Adams v. State, 380 So.2d 600 ( . The issues of this federal petition were not raised on direct appeal but were presented to the Florida Courts in post conviction proceedings, and the State concedes exhaustion of state remedies.
Adams was convicted of kidnapping and sexually assaulting a twelve year old girl and then shooting the Florida Highway Patrolman who came to her rescue in the chest at point-blank range. The Trooper escaped serious injury or death only because he was wearing a bullet-proof vest.
Adams first asserts that his four consecutive sentences totalling 144 years confinement are disproportionate to the offenses committed, in violation of the Eighth Amendment.
The Supreme Court has announced and the Eleventh Circuit has applied a three prong test for determining whether a sentence is grossly disproportionate to the severity of the crime in violation of the Eighth Amendment. The factors to be considered are a) the gravity of the offense and the harshness of the penalty, b) the sentence imposed on other criminals in the same jurisdiction, and c) the sentence imposed for commission of the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637] (1983); McLester v. Smith, 802 F.2d 1330 (11 Cir.1986); Seritt v. Alabama, 731 F.2d 728 (11 Cir.1984).
As to the first factor, Adams argues that he was a first offender and that his crimes, while serious, are "by no means heinous," and do not shock the sensabilities of the "average man." (Pet. Memo pg. 6). This petitioner kidnapped and sexually assaulted a twelve year old girl and shot a Florida Highway Patrolman point-blank in the chest with a .357 Magnum. There can be few more heinous crimes.
As to the second factor, Adams argues that his sentences are more severe than those imposed on other criminals in Florida. His sole basis for this argument is that under the current Florida sentencing guidelines, not in effect when he was sentenced, the recommended sentence for a sexual offense for a person such as he under the circumstances of this case is 12-17 years of incarceration. (Pet. Memo pg. 6).
The Florida sentencing guidelines are not applicable to this case, having been enacted after these sentences were imposed and constituting a statutory scheme of sentencing without eligibility for parole. Fla.Stat. Sec. 921.001(8). Adams is eligible for parole and in fact has been assigned a presumptive parole date, with a scheduled reconsideration.
Moreover, Adams was separately sentenced for each of his four separate sentences, not just the sexual battery. Even under the new guidelines he could be sentenced to the maximum on each, for appropriate cause. Fla.R.Crim.P. 3.701 d.12.
Finally, a sentence can be imposed outside the guidelines, up to the statutory maximum, if clear and convincing reasons to do so exist. Fla.Stat. Sec. 921.001(5); ...
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Taylor v. Martin
...words, the Constitution does not require a presentence investigationprior to sentencing in a noncapital case. See Adams v. Dugger, 850 F.2d 1495, 1500 (11th Cir. 1988); see also Goseland v. Shelton, 2002 WL 1880759 at *5 (D. Kan. Aug. 15, 2002). Moreover, Petitioner has failed to demonstrat......