McCullough v. Singletary

• Citation: 967 F.2d 530
• Decision Date: 03 August 1992
• Docket Number: No. 91-3497,91-3497
• Parties: Alonzo McCULLOUGH, Petitioner-Appellant, v. Harry K. SINGLETARY, Robert Butterworth, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 530

967 F.2d 530

Alonzo McCULLOUGH, Petitioner-Appellant, v. Harry K. SINGLETARY, Robert Butterworth, Respondents-Appellees.

No. 91-3497.

United States Court of Appeals, Eleventh Circuit.

Aug. 3, 1992.

Brad Permar, Asst. Public Defender, Clearwater, Fla., for petitioner-appellant.

Donna A. Provonsha and Stephen A. Baker, Asst. Atty. Gen., Office of the Atty. Gen., Tampa, Fla., for respondents-appellees.

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

Before HATCHETT and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.

DUBINA, Circuit Judge:

This is an appeal from the district court's order denying Alonzo McCullough's ("McCullough") petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons which follow, we affirm.

I. BACKGROUND

McCullough was convicted of first-degree burglary and sexual assault in the Sixth Judicial Circuit Court, Pinellas County, Florida. He was seventeen years old when those crimes were committed, and he was tried as an adult. Pursuant to Fla.R.Crim.P. 3.701(d)(5)(c) of the Florida Sentencing Guidelines, ¹ his sentence for the convictions was enhanced based on four prior juvenile-court convictions. Rule 3.701(d)(5)(c) authorizes consideration of juvenile delinquency adjudications as part of an offender's prior record for sentencing purposes, provided the adjudications are no more than three years old at the time of the offense for which the offender is being sentenced. ² Juvenile dispositions that are more than three years old are excluded from the definition of prior record. Only McCullough's last four convictions were considered by the state sentencing judge because the others occurred more than three years prior to McCullough's present convictions.

As a result of the enhancement, McCullough was sentenced to life in the penitentiary without the possibility of parole. His convictions and sentence were affirmed, without opinion, by the Florida District Court of Appeals. See McCullough v. State, 523 So.2d 582 (Fla.Dist.Ct.App.1988).

After exhausting his state remedies, McCullough filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Middle District of Florida. In the district court, McCullough argued that the additional points given for his prior juvenile convictions violated his right to due process and fundamental fairness. He also argued that the enhancement shocked the judicial conscience because without the enhancement, his sentence would have been approximately seventeen years, with actual time served around seven years.

A United States magistrate judge held an evidentiary hearing and thereafter filed a report and recommendation recommending that the petition be dismissed. Relying on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), and United States v. Williams, 891 F.2d 212 (9th Cir.1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990), the magistrate judge found that the enhancement of McCullough's sentence based on his juvenile convictions did not violate his right to due process. McCullough filed objections to the report, reiterating his previous arguments and, additionally, averring that Baldasar was misapplied and Williams was distinguishable.

After reviewing the magistrate judge's report and McCullough's objections, the district court dismissed McCullough's petition on the basis of Williams. McCullough then perfected this appeal.

II. DISCUSSION

McCullough asserts the following three grounds to support his prayer for resentencing and the withdrawal of the enhanced penalty: (1) the enhancement denies fundamental fairness; (2) the enhancement shocks the judicial conscience; and (3) the enhancement constitutes cruel and unusual punishment. Our review of the record reveals that McCullough only presented grounds one and two to the district court; the cruel and unusual punishment argument was not presented. Normally, we will refuse to address issues not raised below. Spann v. Wainwright, 742 F.2d 606, 607 (11th Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 95, 88 L.Ed.2d 77 (1985). However, because of the serious consequences of this case, we choose to address all of McCullough's arguments. See Olson v. Superior Pontiac-GMC, Inc., 776 F.2d 265, 267 (11th Cir.1985) (in determining an issue in a case, we are not pretermitted by the district court or counsel from considering the record, statutes, or applicable case law).

A. Fundamental fairness

McCullough argues that the juvenile justice system and the adult justice system are designed for two entirely different purposes, i.e., rehabilitation versus punishment, and that it is unfair to allow his prior juvenile convictions to be used collaterally to impose a life sentence without parole. He cites McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for the general proposition that juvenile convictions must comport with due process.

McKeiver was a plurality opinion in which the Supreme Court held that the due process standard in juvenile cases is fundamental fairness and that the lack of a jury trial in such a proceeding does not deny a juvenile due process. The Supreme Court in In re Gault held that the due process clause is applicable to juvenile proceedings as well as adult proceedings. ³ Neither of those cases supports McCullough's argument.

The record demonstrates that McCullough failed to produce even minimal evidence that he was not afforded fundamental fairness in his juvenile proceedings. He does not show that he was denied notice of the juvenile charges pending against him, or that he was denied the right to confront and cross-examine witnesses, or that he was forced to incriminate himself. McCullough does argue that he was not afforded a trial by jury for his juvenile offenses. While a trial by jury in a criminal case is fundamental to our system of justice, a trial by jury in a juvenile proceeding is not a constitutional requirement. This rule exists because a declaration of delinquency is significantly different and less onerous than an adult proceeding. McKeiver, 403 U.S. at 540, 91 S.Ct. at 1983.

Regarding McCullough's right-to-counsel claim under the due process clause, the record indicates that he was afforded counsel to assist him in his last four second-degree felony convictions. ⁴ Because those felony convictions were within the purview of Rule 3.701(d)(5)(c), they were calculated into McCullough's sentencing score, and he was given a total of 330 points for those prior convictions. It is unclear from the record whether McCullough had the assistance of counsel in the relevant misdemeanor conviction; however, assuming arguendo that he did not have counsel, the elimination of the sentencing points associated with that offense, (ten), from his total score would still result in a total score of 626 and mandate a sentence of life without parole. Since McCullough would have received exactly the same sentence in the absence of the misdemeanor conviction, its inclusion in his sentence calculation cannot be said to have resulted in a denial of fundamental fairness.

McCullough argues that the magistrate judge's reliance on Williams was in error. In Williams, the petitioner pled guilty to bank robbery. He was given an enhancement of four additional criminal history points for involvement in two prior bank robberies while a juvenile. Williams argued that Baldasar v. Illinois prevented the collateral use of his juvenile convictions to enhance a subsequent sentence. The additional points placed Williams in a sentencing range of 46 to 57 months; without that enhancement, he would have been placed in a sentencing range of 30 to 37 months.

The Ninth Circuit rejected Williams' argument that Baldasar dictated reversal and held the enhancement constitutional. It found Baldasar was a right to counsel case and, therefore, not pertinent because Williams had been represented by counsel in his prior juvenile adjudications. It also found Baldasar inapposite because there the prior convictions were misdemeanors, whereas in Williams the court was concerned with juvenile convictions.

We have reviewed Baldasar and have determined that it is not applicable to the present case.

Baldasar is a plurality opinion in which the Supreme Court divided its votes in such a way that no clear rule is apparent. Four justices--Stewart, Marshall, Stevens, and Brennan--concluded in two separate concurrences that an uncounseled misdemeanor conviction, valid when entered, could not be used through an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. See also Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (conviction of an uncounseled indigent defendant is constitutionally valid, even if he has not waived his right to counsel, so long as the accused is not sentenced to actual term of imprisonment). ⁵ Justice Blackmun's concurrence, and the necessary fifth vote for the majority, was based on a narrower ground. Justice Blackmun wrote that the right to counsel in misdemeanor cases should attach where the crime is punishable by imprisonment for more than six months. Since Baldasar's first misdemeanor was punishable by a sentence of more than six months and since he was not afforded counsel for that conviction, Justice Blackmun concluded that the first conviction was invalid for all purposes and could not be used to enhance the sentence. ⁶

We agree with the Williams analysis and decline to extend the holding of Baldasar to the facts of this case. McCullough's enhancement, like Williams, was based on his juvenile convictions. McCullough, like Williams, had the benefit of counsel during the adjudication of his last four juvenile adjudications. McCullough's enhancement points were added for his last...