954 F.2d 313 (5th Cir. 1992), 90-7055, McGruder v. Puckett

Docket Nº:90-7055.
Citation:954 F.2d 313
Party Name:Robert McGRUDER, Petitioner-Appellant, v. Steven W. PUCKETT, et al., Respondents-Appellees.
Case Date:February 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 313

954 F.2d 313 (5th Cir. 1992)

Robert McGRUDER, Petitioner-Appellant,

v.

Steven W. PUCKETT, et al., Respondents-Appellees.

No. 90-7055.

United States Court of Appeals, Fifth Circuit

February 27, 1992

Page 314

        Robert McGruder, pro se.

        Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

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

        Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

        E. GRADY JOLLY, Circuit Judge:

        In this habeas case, we must determine whether a sentence of life imprisonment without parole is unconstitutionally disproportionate for one sentenced as an habitual offender on a record of convictions for burglary, armed robbery, and prison escape. For the reasons set forth below, we do not find the sentence to be unconstitutionally disproportionate and affirm the judgment of the district court denying the petition.

        I

        In May 1954, Robert McGruder was found guilty of two counts of armed robbery and sentenced to serve two to nine years, of which he served six. In May 1957, he was found guilty of burglary and larceny and sentenced to serve from one to ten years, running concurrently with his earlier sentence. He was also sentenced in May 1957, to another concurrent term of four to eight years for escape from a penitentiary. In May 1964, McGruder was found guilty of armed robbery and given three to ten years, of which he served approximately three.

        In April 1983, McGruder was convicted by a jury in Harrison County, Mississippi, for the burglary of an automobile, specifically for stealing twenty cases of beer from a delivery truck. McGruder had been indicted as an habitual offender under section 99-19-83 of the Mississippi Code. 1 Following a sentencing hearing establishing his record of prior felony convictions, he was sentenced, as an habitual offender, to life in prison without hope of parole. He appealed his conviction and sentence to the Mississippi Supreme Court, which affirmed both. McGruder v. State, 454 So.2d 1312 (Miss.1984). He filed a state collateral action in November 1988, seeking to have his sentence vacated. The state supreme court denied this motion in December 1988, after which McGruder filed this petition for habeas corpus.

        The magistrate judge entered a ten-page report and recommended denial of the petition on April 10, 1990. McGruder, after an extension of time granted by the court, filed extensive objections. On November 19, the district court adopted the report of the Magistrate as findings of the court, noting that it had "fully reviewed the record and the court file in this matter, and the objections raised by the plaintiff ..." Judgment was entered denying the petition.

        II

        As a threshold matter, McGruder contends that this cause should be reversed

Page 315

and remanded because the district court failed to review independently the record before denying his petition. The district court explicitly stated that it had "fully reviewed the record and the court file in this matter, and the objections raised by the plaintiff ..." McGruder offers no basis for this bald claim, except that the court issued only a brief order adopting the recommendation of the magistrate judge. This meager assertion has no probative weight and will not support a finding that the district court did not independently review the record. See United States v. Shaid, 916 F.2d 984, 988 (5th Cir.1990). Consequently, we reject this argument.

        III

        McGruder brings forward a variety of arguments to attack his sentence. We have considered each and affirm the district court on all grounds. 2 We find it necessary only to address the issue of proportionality.

        A

(1)

        Throughout this century, the Eighth Amendment has been read to preclude a sentence that is greatly disproportionate to the offense, because such sentences are "cruel and unusual." See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (sentence of 15 years in cadena temporal [severe hard labor] for petty embezzlement is cruel and unusual); Harmelin v. Michigan, --- U.S. ----, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).

        Perhaps the most dramatic application of this principle in a non-capital case was in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In that case, the court adopted a framework of objective factors that may be used in proportionality analysis: (1) the gravity of the offense relative to the harshness of the penalty, (2) the sentences imposed for other crimes in the jurisdiction, and (3) the sentences imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. at 3010.

        In applying that framework, the court found a sentence of life imprisonment without parole was disproportionate for a defendant who wrote a no-account check for $100, with prior convictions for third-degree burglary, false pretenses, grand larceny, and driving while intoxicated. Id. at 303, 103 S.Ct. at 3016. In concluding that the life sentence violated the Eighth Amendment, the court noted that Solem's past offenses "were all relatively minor. All were nonviolent, and none was a crime against a person." Id., at 296-297, 103 S.Ct. at 3013.

        Of course, Solem must now be viewed in the light of Harmelin v. Michigan, --- U.S. ----, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), a review of the sentence of Ronald Harmelin to life in prison without parole for the possession of more than 650 grams of cocaine. Harmelin provoked a host of...

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