Houston v. Roe

• Decision Date: 08 June 1999
• Docket Number: No. 98-55251,98-55251
• Citation: 177 F.3d 901
• Parties: 99 Cal. Daily Op. Serv. 4385, 1999 Daily Journal D.A.R. 5629 Stephen Arthur HOUSTON, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 901

177 F.3d 901

99 Cal. Daily Op. Serv. 4385, 1999 Daily

Journal D.A.R. 5629

Stephen Arthur HOUSTON, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee.

No. 98-55251.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted Feb. 1, 1999.

Filed June 8, 1999.

William J. Kopeny, Kopeny & Powell, Irvine, California, for the petitioner-appellant.

Kenneth N. Sokoler, Deputy Attorney General, Los Angeles, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; William D. Keller, District Judge, Presiding. D.C. No. CV-97-01421-WDK (RC).

Before: D.W. NELSON, KOZINSKI, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Steven Arthur Houston ("Houston") appeals the denial of his 28 U.S.C. § 2254 petition, alleging that his conviction for first degree murder is unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 2253 (1994), and we affirm.

BACKGROUND

On September 11, 1987, Houston was convicted by a jury of shooting and killing his wife Donna Johnson ("Johnson"). Houston hid outside Johnson's office with a shotgun he had purchased the day before, and when Johnson exited the building, he shot her. After the shooting, Houston fled briefly to another city, but was apprehended when he returned to his home. At trial, Houston admitted to shooting his wife, but argued that he had acted in a fit of rage when he saw Johnson hug and kiss another man. The jury found Houston guilty of first degree murder, and he was sentenced to life in prison without the possibility of parole.

Houston's conviction was affirmed by the California Court of Appeal, and his petition for review to the California Supreme Court was denied. Subsequently, Houston filed a petition for habeas under 28 U.S.C. § 2254 (1994 & Supp. IV 1998). The district court denied that petition, and this appeal followed.

STANDARD OF REVIEW

We review de novo a district court's decision to grant or deny a § 2254 habeas petition. Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir.1998). Findings of fact relevant to the district court's decision are reviewed for clear error. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996).

DISCUSSION

I. Scope of Review

Before addressing the merits of Houston's claim, we note the limited scope of our review. Because Houston filed this petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, the provisions of the Act apply to this petition. See Jeffries v. Wood, 114 F.3d 1484, 1495-96 (9th Cir.1997) (en banc); accord Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). As amended by the AEDPA, 28 U.S.C. § 2254(d) provides in relevant part that

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

merits in State court proceedings unless the adjudication of the claim--

In interpreting this section, we have predictably held that

[a] state court decision may not be overturned on habeas review, for example, because of a conflict with Ninth Circuit-based law, but rather a writ may issue only when the state court decision is "contrary to, or involved an unreasonable application of," an authoritative decision of the Supreme Court.

Moore v. Calderon, 108 F.3d 261, 264 (9th Cir.1997) (quoting 28 U.S.C. § 2254(d)); see also Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir.1996) ("Federal Courts are no longer permitted to apply their own jurisprudence, but must look exclusively to Supreme Court caselaw."). Because all claims presented by Houston in this petition were presented to the state court, we may only grant Houston's petition if his conviction is contrary to "clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d).

Houston argues that if the AEDPA is read this way, it constitutes a suspension of the writ of habeas corpus and therefore violates Article I, § 9, clause 2, of the Constitution. However, the AEDPA does not suspend the writ; it only requires well-established federal law, as determined by the Supreme Court, before a federal court can reverse a state court decision. Contrary to Houston's argument, the Supreme Court need not have addressed a factually identical case, § 2254(d) only requires that the Supreme Court clearly determine the law. See Davis v. Kramer, 167 F.3d 494, 498 (9th Cir.1999), petition for cert. filed, 67 U.S.L.W. 3570 (U.S. Mar. 8, 1999) (No. 98-1427).

II. Individual Sentencing Doctrine

Houston argues that the California Penal Code violates the Eighth Amendment by imposing a sentence of life without the possibility of parole ("LWOP") without distinguishing the factors that result in the lesser punishment of life with parole ("LWP").

The Eighth Amendment requires that state sentencing guidelines clearly distinguish between criminals sentenced to death and those not sentenced to death. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). However, the Supreme Court has refused to extend this rule to require states to distinguish between criminals sentenced to LWOP and those sentenced to LWP. Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality). ¹ In Harmelin, the Court noted that "[i]n some cases ... there will be negligible difference between life without parole and other sentences of imprisonment-for example, a life sentence with eligibility for parole." Id. at 996. We therefore hold that the California Penal Code does not violate the Eighth Amendment by failing to extend the Godfrey doctrine to LWOP crimes.

III. Arbitrary and Capricious Application of Death Penalty

Houston argues that the California Penal Code violates the Eighth Amendment by establishing vague and arbitrary guidelines for determining when the death penalty may be imposed. Houston specifically argues that the line between non-capital first degree murder by means of lying in wait and capital first degree murder with the special circumstance of lying The Eighth Amendment prohibits the death penalty from being "imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner." Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). "A capital sentencing scheme must ... provide a 'meaningful basis for distinguishing' " the few cases where it is imposed from the cases where it is not. Id. (quoting Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). States are therefore obligated to "define the crimes for which death may be the sentence in a way that obviates 'standardless [sentencing] discretion.' " Id. at 428 (quoting Gregg, 428 U.S. at 196 n. 7).

in wait has become blurred and makes imposition of the death penalty vague and arbitrary.

The government correctly argues that Houston lacks standing to bring this argument because he was not sentenced to death. Article III of the Constitution requires that parties challenging the death penalty on Eighth Amendment grounds have standing. Whitmore v. Arkansas, 495 U.S. 149, 161, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The injury must be distinct and palpable not merely speculative, and the harm must be imminent and not hypothetical. Whitmore, 495 U.S. at 155.

In this case, the government did not seek the death penalty, and Houston was not sentenced to death. There is no risk that he will be arbitrarily sentenced to death in the future for killing Johnson. Houston therefore fails to allege an actual or threatened injury. Houston argues that he could have been sentenced to death for the crime he was convicted of and therefore has standing. However, "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

IV. Vagueness

Houston argues that California Penal Code § 190.2(a)(15) is unconstitutionally vague. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Houston argues that non-capital first degree murder by means of lying in wait is indistinguishable from capital first degree murder with the special circumstance of lying in wait and therefore encourages arbitrary and discriminatory enforcement.

In this case, the California legislature and courts have created a thin but meaningfully distinguishable line between first degree murder lying in wait and special circumstances lying in wait. See People v. Superior Court, 134 Cal.App.3d 893, 184 Cal.Rptr. 870, 872-73 (Cal.Ct.App.1982). First degree murder is statutorily defined as "murder which is perpetrated by means of ... lying in wait." Cal.Penal Code § 189. Special circumstance murder is statutorily defined as murder where the "defendant intentionally killed the victim while lying in wait." Cal.Penal Code § 190.2(15). The distinction is found in...