Seritt v. State of Ala.
| Decision Date | 03 May 1984 |
| Docket Number | No. 82-7127,82-7127 |
| Citation | 731 F.2d 728 |
| Parties | Harlin Phillip SERITT, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ed Still, Birmingham, Ala., for petitioner-appellant.
Elizabeth Ann Evans, Jean Williams Brown, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.
We are urged to hold the Alabama Habitual Felony Offenders Statute unconstitutional because it removes the trial court's discretion to consider mitigating circumstances regarding the individual defendant when certain classes of convictions are present. We reject the position urged and affirm.
On May 6, 1980, David Wilson was employed at the Howard Johnson Motor Lodge in Jefferson County, Alabama. At about 1 p.m., Wilson went to a branch bank to cash checks for the motel and a check for a customer. Upon return to the motel, Wilson handed $100 in 5-dollar bills to his fellow employee, Christine Pennington (Pennington). Thereafter, Wilson placed $200 in 20-dollar bills in his pants pocket. Suddenly, a white male approached Wilson and stated, "Give me the money."
When Wilson refused, the robber threatened to "shoot him." Next, the robber placed a knife in Wilson's side and again demanded the money. The robber then slit the front of Wilson's pants with his knife, making approximately a four-inch cut, and removed the $200 from Wilson's pants pocket.
Immediately thereafter, the robber turned to Pennington and demanded money from her. She handed the robber $100. The robber ran out of the motel and entered a Buick automobile driven by a white female. Pennington, by telephone, gave the license plate number of the automobile to the police department.
Shortly after 1 p.m. on May 6, 1980, police station personnel transmitted to Mountain Brook Police Officer Kenneth Watkins, Sr. a look-out call on his police radio. The call described a 1972 Buick automobile, gave the tag number, and stated that a white male, a white female, and a black female occupied the automobile. Later, Officer Watkins saw the vehicle in Jefferson County and noticed that the automobile was being detained by a Vestavia, Alabama, police vehicle.
Officer Watkins ordered the white male out of the automobile and during a search of the person removed a knife and $300 in U.S. currency from a pocket. The person arrested and identified at trial as the robber was the appellant, Harlin Phillip Seritt, Jr.
Subsequently, Seritt was indicted for the robbery of David Wilson. The jury found Seritt guilty of first-degree robbery, and the trial court set a date for a sentencing hearing to determine whether Seritt should be sentenced under the Alabama Habitual Offenders Statute.
During the hearing, the prosecution presented evidence that Seritt had pleaded guilty to four separate offenses for violation of the Alabama Uniform Controlled Substance Act in 1975. The prosecution also demonstrated that Seritt had pleaded guilty to selling controlled substances in 1973. Based on those felony convictions and Seritt's latest conviction of a Class A felony (armed robbery), the court sentenced Seritt to life imprisonment without parole. After exhausting his state remedies, Seritt filed a habeas corpus petition in the district court, pursuant to 28 U.S.C.A. Sec. 2254 (West 1977). Seritt asserted the following grounds in his petition:
1. The imposition of a sentence of life without parole constitutes cruel and unusual punishment;
2. The application of the habitual offender statute in this case violates equal protection.
On March 22, 1982, the district court denied the petition. After the district court granted Seritt's request for issuance of a certificate of probable cause and motion for leave to appeal in forma pauperis, Seritt filed this appeal.
Seritt makes three contentions. First, Seritt contends that his sentence of life imprisonment without parole is disproportionate to the crimes for which he was convicted and, thus, constitutes cruel and unusual punishment under the eighth and fourteenth amendments. Second, Seritt contends that the state of Alabama has denied him due process of law by imposing upon him a mandatory life imprisonment sentence. Third, Seritt contends that the district court had before it insufficient information to determine whether Seritt's sentence was so disproportionate as to constitute cruel and unusual punishment. Seritt, therefore, argues that this court should remand this case for a hearing at which he may present evidence regarding disproportionality, due process, and eighth amendment claims.
In rebuttal, the state contends that the imposition of a life sentence without parole under the Alabama Habitual Felony Offenders Statute, Ala.Code Sec. 13A-5-9 (1982) 1, does not violate the eighth amendment prohibition against cruel and unusual punishment. Additionally, the state asserts that the statute is not violative of the fourteenth amendment guarantee of equal protection because the statute is mandatory and is not applied selectively.
The two main issues raised on appeal are: (1) whether Seritt's sentence of life imprisonment without parole is disproportionate to the crimes for which he was convicted and, thus, constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments; and (2) whether the district court had before it sufficient information to determine the proportionality of Seritt's sentence.
The United States Supreme Court has consistently held that recidivist statutes do not violate the eighth amendment prohibition against cruel and unusual punishment. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).
In Rummel, the Court held that a mandatory life sentence imposed upon a defendant, under the Texas recidivist law, for having been three times convicted of property-related felonies, did not constitute cruel and unusual punishment under the eighth and fourteenth amendments. The Court so held notwithstanding the defendant's claim that life imprisonment was "grossly disproportionate" to the three property-related felonies that formed the predicate for his sentence. Rummel, 445 U.S. at 285, 100 S.Ct. at 1145.
Seritt seeks to distinguish Rummel from this case on the ground that Rummel's sentence, unlike his, did not preclude parole. Based on this distinction, Seritt contends that his "without parole" sentence constitutes cruel and unusual punishment. The Supreme Court foreclosed this argument when it noted in Rummel that "the length of the sentence actually imposed [for felony convictions] is purely a matter of legislative prerogative." Id. at 274, 100 S.Ct. at 1139. The Court, however, did note that proportionality would be a consideration in extreme cases, e.g., when a legislature makes overtime parking a felony punishable by life imprisonment. Id. at 274, n. 11, 100 S.Ct. at 1139, n. 11. We hold that this is not an "extreme case" and, therefore, is not readily distinguishable from Rummel on that ground.
Because the length of confinement is a matter within the discretion of the punishing jurisdiction, and because the right to parole is a privilege granted by the people of Alabama through its legislature, we look to Alabama law for guidance. In Holley v. State, 397 So.2d 211, 216 (Ala.App.1981), cert. denied, 397 So.2d 217 (Ala.1981), a defendant, like Seritt, was convicted of armed robbery and sentenced to life imprisonment without parole under the Alabama Habitual Felony Offenders Act. The defendant appealed.
On appeal, the Alabama Court of Criminal Appeals upheld the sentence, stating: "The Alabama Habitual Felony Offenders Act, Code of Alabama, 1975, is not unconstitutional because it does not provide for the consideration of any mitigating circumstances involving the appellant recidivist." Id. at 215. Thus, the Alabama legislature has exercised its discretion in meting out punishment to recidivists, and Alabama's courts have upheld such exercise of discretion as constitutional.
The Court's holding in Rummel does not support Seritt's contentions, but rather, it buttresses the state's contention that a mandatory life imprisonment sentence imposed on a defendant, under a recidivist law, after having been previously convicted of a trilogy of felonies does not necessarily constitute cruel and unusual punishment under the eighth and fourteenth amendments.
In Terrebonne v. Blackburn, 646 F.2d 997, 1003 (5th Cir.1981) (en banc) (Johnson, J., dissenting), the dissent, while discussing the Supreme Court's decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), correctly observed that:
[W]hen the [Supreme] Court acknowledged that the imposition of punishment is subject to 'those strictures of the Eighth Amendment that can be informed by objective factors,' Rummel v. Estelle, supra, 445 U.S. at 284, 100 S.Ct. at 1144 (emphasis supplied), it indicated a willingness to use other criteria to evaluate eighth amendment challenges. What the other criteria might be the Court chose not to reveal.
Id. at 1006. In the Supreme Court's most recent pronouncement on recidivist statutes, the Court chose to reveal the objective criteria it deemed appropriate when evaluating eighth amendment disproportionality challenges. Solem v. Helm, --- U.S. ----, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
Seritt contends that his sentence of life imprisonment without parole is disproportionate to the crimes for which he was convicted and, thus, constitutes cruel and unusual punishment violative of the eighth and fourteenth amendments. The Supreme Court has...
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