Roberts v. Collins, Civ. No. B-74-130.

• Court: U.S. District Court — District of Maryland
• Writing for the Court: BLAIR
• Citation: Roberts v. Collins, 404 F.Supp. 119 (D. Md. 1975)
• Decision Date: 06 October 1975
• Docket Number: Civ. No. B-74-130.
• Parties: Robert ROBERTS #2954 v. George COLLINS, Warden, Maryland Penitentiary.

404 F. Supp. 119

Robert ROBERTS #2954 v. George COLLINS, Warden, Maryland Penitentiary.

Civ. No. B-74-130.

United States District Court, D. Maryland.

October 6, 1975.

Michael Millemann, Baltimore, Md., for petitioner.

Francis B. Burch, Atty. Gen. of Md., and James G. Klair, Asst. Atty. Gen. of Md., for respondent.

BLAIR, District Judge.

Robert Roberts, presently confined by the State of Maryland under sentences imposed in 1953 totaling 54 years, seeks a writ of habeas corpus. His present application is but the latest chapter in the saga of his skirmishes with the law over approximately 37 years.¹

The 54-year sentence, which he attacks in part by this application, resulted from his pleas of guilty to two counts of common law simple assault, one count of being a rogue and vagabond, one count of deadly weapon, and one count of larceny. He was sentenced to consecutive terms of imprisonment of 20 years on each assault count and 2 years, 2 years, and 10 years, respectively, on the other counts.

Roberts' present petition asserts two grounds for relief. They are: 1) that the consecutive 20-year sentences for two counts of simple assault are violative of his right to be free from cruel and unusual punishment and his right to equal protection of the laws guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution; and 2) that the guilty pleas entered to the two counts of simple assault were not voluntary for the specific reason that the petitioner was never informed and did not otherwise know that he could receive a sentence to imprisonment for as long as 20 years for each of the simple assault counts. The state acknowledges that Roberts has exhausted his available state remedies with respect to the first contention but asserts that he has not exhausted his available state remedies on the second contention. Since the court finds it necessary to address only the first contention, the question of whether the petitioner has exhausted his available state remedies on the second contention is of no matter.

On February 10, 1953, Roberts was indicted by a Maryland grand jury for the five offenses noted above. Of these indictments, only two are of significance here: in each of Nos. 506 and 507, Roberts was charged with counts of (1) assault with intent to murder, (2) simple assault, and (3) assault on a police officer.² On March 3, 1953, while represented by privately retained counsel, Roberts changed his earlier entered pleas of not guilty to all charges to pleas of guilty to simple assault in each of Indictments 506 and 507 and guilty to all other charges. The pleas of guilty followed the tender and rejection of pleas of nolo contendere to all charges (Tr. 2-3). The court took testimony from Roberts and other persons in conjunction with both the guilty pleas entered by Roberts and the trial of a codefendant on facts stipulated in part. At the conclusion of the testimony, the court deferred findings in the codefendant's case but proceeded to sentence Roberts as noted above. (Tr. 71). Since that day in 1953, Roberts has filed numerous petitions in state and federal courts attacking the two 20-year sentences for simple assault. According to the summary prepared by petitioner's attorney and attached to the Amended Habeas Corpus Petition, Roberts has asserted challenges to his sentences in seven state court petitions and in five federal court petitions. Clear rulings on the simple assault sentences came on only two of these petitions. In 1966 the Court of Appeals of Maryland held that Roberts had not been subjected to cruel and unusual punishment, Roberts v. Warden, 242 Md. 459, 219 A.2d 254 (1966). And, in 1967, a three-judge panel of the Fourth Circuit Court of Appeals, relying on "the substantial facts as interpreted by the Maryland Court of Appeals," stated,

In Roberts' most recent case, the Maryland court faced the issue on the merits and, interpreting the intent of the Maryland legislature, held that the sentence was not excessive.

We find no federal question involved in Roberts' case. It is clear that Roberts' sentence, held by the Maryland Court of Appeals to be authorized by state law, is not within our power to review. See Stevens v. Warden, 382 F.2d 429 (4th Cir. 1967). Moreover, while we may find disconcerting the specific result — that simple assault in Maryland may carry a greater punishment than assault with intent to murder — the Maryland interpretation of its own law is binding upon us. The pronouncement of unconstitutionality of state law by federal courts must be predicated upon a more substantial basis than a mere feeling that the law appears incongruous. Since we discover no greater objection in the present case, Roberts' appeal must be dismissed.

Roberts v. Warden, No. 11,201 (4th Cir., Oct. 31, 1967), a copy of which is filed herewith.³

The thrust of Roberts' first contention is that the consecutive 20-year sentences for simple assault are cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.⁴ Roberts was charged in the first count of the assault indictments with assault with intent to murder. The maximum penalty for that crime under then applicable state law was 15 years confinement in the penitentiary. See Annotated Code of Maryland, Art. 27, § 14 (1951). Roberts pleaded guilty, however, to the second count of each indictment charging simple common law assault. Although simple assault is a lesser-included offense of the larger charge of assault with intent to murder, see Marks v. State, 230 Md. 108, 185 A.2d 909, 911-12 (1962), no state statute fixes a maximum penalty for simple assault. Thus, sentencing for simple assault in Maryland is left exclusively to the discretion of the trial judge. See Roberts v. Warden, 242 Md. 459, 219 A.2d 254, 255 (1966); Gleaton v. State, 235 Md. 271, 201 A.2d 353, 356-57 (1964). Exercising this discretion, the trial judge sentenced Roberts on each count of simple assault to 20 years in the penitentiary — five years longer than the maximum fixed by the legislature for the greater offense of assault with intent to murder. Roberts makes the argument here, as he has earlier before other courts, that this situation is patently absurd. He raises the specter of the state deliberately attempting to prove only the lesser-included offense so that a sentence may be imposed in excess of the maximum sentence for the more aggravated offense and the defense of necessity attempting to prove that the defendant committed the more aggravated offense so that the maximum sentence will be more limited than that which could be imposed if the defendant is convicted of the less aggravated offense. The point has a certain plausibility. There is no blinking the fact that this situation is arbitrary, anomalous, and irrational or as the Fourth Circuit in Roberts v. Warden, No. 11,201 (4th Cir., Oct. 31, 1967), chose to put it "disconcerting." The question, however, is whether it is also unconstitutional in this case.

Before addressing the constitutionality, however, there is the threshold question of whether this court has the power to reconsider an issue previously decided in this case by the Fourth Circuit Court of Appeals. The answer to this question is found in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Accord United States v. Davis, 417 U.S. 333, 341-42, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). In Sanders, the Supreme Court clearly held that the doctrine of res judicata is not applicable to habeas corpus cases. Sanders v. United States, supra 373 U.S. at 7-8, 83 S.Ct. 1068. It further held that, while a court may rely on a prior decision on the merits of a petitioner's claim, if the petitioner demonstrates that the "ends of justice" would be served by a new consideration of the issues, then the court should treat them on their merits. Id. at 12, 15-17, 83 S. Ct. 1068. Where, as here, purely legal questions are involved, intervening changes of law may warrant reconsideration of such previously decided questions. Id. at 17, 83 S.Ct. 1068; United States v. Davis, supra 417 U.S. at 342, 94 S.Ct. 2298.

Judicial development of the concept of "cruel and unusual punishment" has been significant in the last eight years. See, e. g., Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Moreover, the Fourth Circuit has announced at least two of the leading decisions in this area. See Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972). Among other things, Hart v. Coiner, supra, stands for the proposition that, under some circumstances, a court may examine the length of a sentence even though the term is within the limits prescribed by state law. That alone is a significant change which warrants reconsideration of Roberts' claim. Furthermore, the Fourth Circuit's elucidation of more specific standards to be applied in Eighth Amendment cases warrants reconsideration of the issues. See id. at 140-42.

In Hart v. Coiner, supra, the Fourth Circuit stated that "it seems settled that punishment must be proportioned to the offense committed ...." 483 F.2d at 140. Quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Court of Appeals noted further "that it is now a precept of justice that punishment for crime should be graduated and proportioned to offense.'" Id. The court conceded that application of the principle of gradation to a particular set of facts is "not without difficulty" — a difficulty enhanced by the fact that "the proportionality concept is not static, but is a `progressive' one which `must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,' .... Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)." Id. Nevert...