Griffin v. Warden, West Virginia State Penitentiary, 75-1061

Decision Date09 June 1975
Docket NumberNo. 75-1061,75-1061
Citation517 F.2d 756
PartiesWilliam GRIFFIN, Petitioner, v. WARDEN, WEST VIRGINIA STATE PENITENTIARY, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

Ralph S. Spritzer, Philadelphia, Pa. (court-appointed counsel), for appellant.

E. Leslie Hoffman, III, Asst. Atty. Gen. of W. Va. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., and Richard E. Hardison, Deputy Atty. Gen. of W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Circuit Judge, CRAVEN and ANDERSON, * Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal by John William Griffin from the denial of habeas relief by the district court. The petitioner was convicted of grand larceny on December 9, 1970. Pursuant to West Virginia's Habitual Offender Act, an information was filed charging that Griffin had been twice before convicted of crime punishable by imprisonment in a penitentiary. Upon such proof the West Virginia court has a mandatory duty to sentence such a person to life imprisonment, 1 and Griffin is now serving a life sentence.

In Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied,415 U.S. 983, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974), we held that the underlying offenses upon which the status of habitual offender depends can be of such a nature as to make a life sentence unconstitutionally disproportionate and so grossly excessive as to amount to cruel and unusual punishment. But Griffin's offenses are not at all like those of Hart. Griffin previously broke and entered a gasoline station and grocery store in Harrison County (1964) and thereafter committed burglary of a residence in Taylor County (1967). These and grand larceny are serious offenses that clearly involve the potentiality of violence and danger to life as well as property. Whether or not Griffin may be actually deserving of such extreme punishment is not within our province to decide; we hold only that the imposition of a life sentence predicated upon these particular three offenses does not offend the eighth amendment.

We are more concerned about petitioner's contention, ably briefed and argued by scholarly counsel, that for a state to vest in a prosecuting officer unguided and unbridled discretion to seek or refrain from seeking imposition of a mandatory life sentence violates the due process and equal protection clause of the fourteenth amendment. We are aware of increasing concern with the application of law without disclosure of the rationale of application and its potentiality for arbitrary and capricious abuse. It is increasingly urged that the dispensation of justice ought to be visible and that the reason for punishment should be apparent. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

But this is not the first time that a similar attack upon West Virginia's Habitual Offender Act has been launched. Twice before its constitutionality has been considered and affirmed by the United States Supreme Court. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). In Boles Mr. Justice Clark specifically noted the contention that although the prosecutor could file an information triggering a life sentence against all persons coming within the statutory standard, it was nevertheless done only in a minority of cases. 368 U.S. at 455-56, 82 S.Ct. 501. It is true that the Court in Oyler based its decision, in large part, upon failure of proof to show why some few were chosen and others spared. But that is also the situation here. The record does not disclose why Griffin was singled out and others were not. 2

That the petitioner here does not press that he has received harshness while others have received leniency does not improve his case. He cannot press that point because Oyler has decided it against him. All he is left with is the contention, which we do not lightly reject, that unbridled and unguided discretion in the prosecutor, in the light of the development of procedural due process, violates the fourteenth amendment.

Section 61-11-18 of the state code provides, in relevant part, that "(w)hen it is determined, as provided in section nineteen hereof, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the penitentiary for life." Section 61-11-19 states:

It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence, or convictions and sentences, as the case may be, and alleging...

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19 cases
  • Wanstreet v. Bordenkircher
    • United States
    • West Virginia Supreme Court
    • March 10, 1981
    ...Amendment.7 Martin's focus on the violent nature of the crime was a theme emphasized in Hart v. Coiner and applied in Griffin v. Warden, 517 F.2d 756 (4th Cir. 1975), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308, where the Court declined to apply the proportionality principle to......
  • Rummel v. Estelle
    • United States
    • U.S. Supreme Court
    • March 18, 1980
    ...establishing disproportionality in violation of the eighth amendment." Wood v. South Carolina, 483 F.2d 149, 150 (1973). In Griffin v. Warden, 517 F.2d 756 (1975), the court refused to hold that the West Virginia statute was unconstitutionally applied to a person who had been convicted of b......
  • Bellavia v. Fogg
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 17, 1979
    ...1978); Downey v. Perini, 518 F.2d 1288 (6th Cir.), Vacated and remanded, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Griffin v. Warden, 517 F.2d 756 (4th Cir.), Cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975); Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), Cert. denied......
  • Daye v. Plumley, 13-0913
    • United States
    • West Virginia Supreme Court
    • April 4, 2014 seek recidivist enhancements under W.Va.Code, 61-11-18 (2000) and W.Va.Code, 61-11-19 (1943). See Griffin v. Warden, West Virginia State Penitentiary, 517 F.2d 756 (4th Cir.1975). Further, we believe that the filing of such informations pursuant to W.Va.Code, 61-11-19 (1943) is relativel......
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