Prejean v. Maggio, 83-4548

• Decision Date: 15 July 1985
• Docket Number: No. 83-4548,83-4548
• Citation: 765 F.2d 482
• Parties: Dalton PREJEAN, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 482

765 F.2d 482

Dalton PREJEAN, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 83-4548.

United States Court of Appeals Fifth Circuit.

July 15, 1985.

Thomas E. Guilbeau, Lafayette, La., Steven L. Winter, John Charles Boger, New York City, Anthony G. Amsterdam, Stanford, Cal., Kenneth E. Wile, Mitchell A. Karlan, Martha Olson, John H. Hall, Susan G. Pender, New York City, for petitioner-appellant.

J. Nathan Stansbury, Dist. Atty., Lafayette, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana; NAUMAN S. SCOTT, Judge.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion Oct. 15, 1984, 5th Cir.1984, 743 F.2d 1091)

Before CLARK, Chief Judge, POLITZ, and JOHNSON, Circuit Judges.

CLARK, Chief Judge:

We modify our original opinion, 743 F.2d 1091, by withdrawing Sections VI and VII, 743 F.2d at 1099-1102, and substituting the following. In all other respects the Petitions for Rehearing and Rehearing En Banc are denied.

VI. PROPORTIONALITY REVIEW

The proportionality review accorded Prejean's death sentence--comparison to capital murder cases in two districts--did not violate any federal constitutional right because the Louisiana Supreme Court, in some other cases, has engaged in a broader search for similar cases.

A

The Louisiana Supreme Court is required to review every death sentence to determine if it is excessive. La.Code Crim.Proc.Ann. art. 905.9 (1984). State law further authorizes the Louisiana Supreme Court to enact such rules and procedures "as are necessary to satisfy constitutional criteria for review." Id. Supreme Court Rule 28 establishes the guidelines for effecting the court's review of capital sentences for excessiveness. According to these guidelines, the Louisiana Supreme Court must determine, among other things, "whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." La.Sup.Ct.R. 28, Sec. 1(c), La.Code Crim.Proc.Ann. art. 905.9 (1984). To aid the court in its review, the district attorney is to file a memorandum listing each first degree murder case after January 1, 1976 in the district in which the sentence was imposed. Id. Sec. 4(b)(i).

Prejean contends these guidelines establish an obligation to review similar cases, rather than an obligation to review cases in the district where the sentence is imposed. Prejean argues that the district attorney's memorandum, compiling first degree murder cases from the district where sentence is imposed, is merely a convenience to the court and not a geographic limitation on the scope of comparative review the court conducts. According to Prejean, the court must review some similar cases, wherever they arise. Thus, whenever the district attorney cannot uncover similar cases in his district, the Louisiana Supreme Court must look elsewhere within the State to find similar cases with which it can make its mandatory comparison for excessiveness. To support his interpretation of the guidelines, Prejean cites cases in which the Louisiana Supreme Court looked outside the district after failing to find sufficiently similar cases within the district. See, e.g., State v. Moore, 432 So.2d 209, 227 (La.1983) ("[W]e have found cases from other jurisdictions which allow for a more fair comparison...."); State v. Narcisse, 426 So.2d 118, 139 (La.1983) ("A review of cases from other parishes ... will justify the death sentence."); State v. Williams, 383 So.2d 369, 374-75 (La.1980) (court looked outside district to compare similar mitigating factors).

Prejean urges that to determine his sentence is not excessive merely because no similar cases exist in the district ¹ is a denial of proportionality review as actually practiced by the Louisiana Court. Prejean asserts that considering its willingness to compare murder cases from other districts, the Louisiana Supreme Court violated Louisiana law and its own rules by failing to look for and consider cases similar to his own.

Prejean is not arguing that he has a constitutional right to proportionality review, nor that the Louisiana Supreme Court must consider all similar cases arising in the state. His claim is that because the Louisiana Supreme Court failed to consider any similar cases, as required by statute and by that court's own practices, his due process rights were violated. We find the procedures followed in Prejean's case comported with due process.

B

Louisiana's single district proportionality review is constitutionally sufficient. See Williams v. Maggio, 679 F.2d 381, 394-95 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399, stay vacated, 464 U.S. 46, 104 S.Ct. 311, 314, 78 L.Ed.2d 43 (1983); Martin v. Maggio, 711 F.2d 1273, 1286 (1983), petition for rehearing, 739 F.2d 184, 185, 186 (5th Cir.1984). In Williams v. Maggio, this court, en banc, rejected an eighth amendment challenge to Louisiana's single district comparative review. 679 F.2d at 394-95. In upholding the Louisiana statute, the en banc court recognized that, in upholding the death penalty in Georgia, Florida, and Texas, the United States Supreme Court focused on the fact that these states had implemented provisions to adequately safeguard against freakish imposition of capital punishment. Id. at 395. The Georgia, Florida, and Texas statutes were found to comply with the Constitution by controlling against the arbitrary and capricious exercise of jury discretion. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Thus, a constitutionally sanctioned death penalty must provide adequate review to protect against the arbitrary imposition of capital punishment. Proportionality review, even of cases within a single district, is one means of providing such protection. ²

Just as a venire chosen from a cross section of the community in which the crime is committed is an adequate constitutional safeguard against arbitrary imposition of verdicts and sentences, so a review of the murder convictions imposed within that venire community is sufficient to ensure against arbitrary imposition of the death penalty.

Williams v. Maggio, 679 F.2d at 395.

Prejean's assertion here is not grounded in the eighth amendment, but rather in the fourteenth amendment's due process clause. However, the reasoning is the same under either amendment. The critical determination is whether Prejean received adequate protection against arbitrary imposition of the death penalty. We find that he did. His sentence was duly reviewed in accordance with a valid capital punishment statute which has been found to be constitutionally correct. The fact that the Louisiana Supreme Court chose to go outside the district in other cases cannot convert its action, proper under the eighth amendment, into a fourteenth amendment due process violation. Substantive due process requires that a state follow procedures that insure against arbitrary or capricious imposition of the death penalty. Williams v. Maggio adjudges Louisiana's same-district review as comporting with this standard. 679 F.2d at 394-95.

C

The constitutional sufficiency of the proportionality review of Prejean's sentence is also supported by Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Pulley held that the Constitution does not require proportionality review of capital sentences. 104 S.Ct. at 876, 879; see also Williams v. Maggio, 679 F.2d 381, 395 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). Pulley, too, is an eighth amendment case. Again, it is the reasoning behind the decision, rather than the number of the applicable amendment, that controls Pulley's precedential value to Prejean's case.

In Pulley, Harris, the habeas corpus petitioner, complained that he was denied the comparative proportionality review practiced by California courts. Although California's death penalty statute did not provide for proportionality review, Harris argued it had become the practice of the state supreme court to protect against excessiveness by exercising a comparative review of similar cases. Because this practice had evolved as part of the review process, Harris claimed he was entitled to such review. Harris claimed the failure to provide such review deprived him of protection against a capital sentence "wantonly and freakishly" imposed in violation of the eighth amendment's protection against cruel and unusual punishment.

In essence, Prejean's claim, like Harris', protests a perceived variation from standard state procedure. As in Pulley, Prejean's claim is that because of an evolution of Louisiana law as practiced by the Louisiana courts, he is entitled to proportionality review broader in scope than he received. However, Pulley tells us that "[e]ven if an error of state law could be sufficiently egregious to amount to a denial of ... due process of law guaranteed by the Fourteenth Amendment, [petitioner's] submission is not persuasive." 104 S.Ct. at 875.

The United States Supreme Court noted in Pulley that the California Supreme Court had twice rejected Harris' demand for proportionality review without suggesting that it was departing from precedent. Id. Similarly, the Louisiana Supreme Court has repeatedly rejected Prejean's demand for a broader proportionality review without suggesting it was departing from precedent.

When Prejean's Application for Rehearing to the Louisiana Supreme Court was denied, 379 So.2d at 249 (La.1979), three justices voted to grant rehearing on the penalty phase only. Id. In a dissent from denial of rehearing, these justices set forth their belief that failure to select cases from throughout the state for comparison in a...