Terrebonne v. Blackburn

• Decision Date: 01 June 1981
• Docket Number: No. 79-1680,79-1680
• Citation: 646 F.2d 997
• Parties: Ricky J. TERREBONNE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 997

646 F.2d 997

Ricky J. TERREBONNE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 79-1680.

United States Court of Appeals, Fifth Circuit.

June 1, 1981.

Donice Alverson, New Orleans, La. (Court appointed), for petitioner-appellant.

George Troxell, New Orleans, La., for American Civil Liberties Union amicus curiae.

Abbott J. Reeves, Asst. Dist. Atty., John M. Mamoulides, Dist. Atty., Gretna, La., Barbara Rutledge, Asst. Atty. Gen., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges. ^*

ALVIN B. RUBIN, Circuit Judge:

We reheard this case en banc to consider whether the eighth amendment proscribes a sentence of life imprisonment for a person convicted of the distribution of heroin. Considering the facts set forth in the record of the state criminal proceeding, including the nature of the offense and the prior record of the convicted person, as well as the sentencing alternatives available under Louisiana law, we conclude that the state statute authorizing the sentence was constitutional on its face when interpreted in the light of other provisions of Louisiana law and that the punishment imposed on Terrebonne was not cruel and unusual under the principles announced by the Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Accordingly, we affirm the district court judgment denying relief.

I.

In 1975, Ricky J. Terrebonne was a 21 year old heroin addict. On September 18th, two agents of the Sheriff's Department of Jefferson Parish, Louisiana, accompanied by a paid informant, encountered Terrebonne. Aware of Terrebonne's addiction, they asked him whether he had any heroin. He answered that he did not but agreed to "score a bundle" for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Terrebonne telephoned his "connection" (i. e. his supplier), the agents provided the funds to enable Terrebonne to make the purchase and Terrebonne left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, Terrebonne was arrested, tried and convicted of distributing heroin. Terrebonne testified at the trial. He did not deny the facts set forth above, but contended that he was entrapped. ¹ He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child.

Terrebonne was convicted of violating La.Rev.Stat.Ann. 40:966 A (West 1977). That statute, on its face, prescribed a sentence of life imprisonment. He was sentenced to such a term. In passing sentence, the trial judge stated, "This Court has no choice in what it may do. The Legislature has prescribed the punishment that is mandatory."

Terrebonne contends that both the uncompromising mandatory term set forth on the face of the statute and the sentence imposed on him are so disproportionate to his offense as to violate the eighth amendment. He appealed his conviction, State v. Terrebonne, 354 So.2d 1356 (La.1978), then unsuccessfully sought habeas corpus in state court on the same grounds here urged. State v. Terrebonne, 364 So.2d 1290 (La.1978). Having exhausted his state remedies, Terrebonne sought federal relief. The district court denied the writ.

A panel of this court construed the petition as attacking only the sentence as applied and not the facial unconstitutionality of the statute. It concluded that the eighth amendment required review of the proportionality of sentences, subscribed to the criteria for determination of proportionality formulated by this court en banc when it considered Rummel, 587 F.2d 651 (5th Cir. 1978), and remanded the case for an evidentiary hearing on proportionality, 624 F.2d 1363 (5th Cir. 1980). We voted to consider the case en banc, thus vacating the panel opinion.

The trial judge stated that he was required to impose a life sentence on Terrebonne. He perhaps did not know, however, that Louisiana statutes other than the substantive criminal statute permitted him to impose sentences other than life imprisonment. The Louisiana Code of Criminal Procedure, Article 895 B, gave the trial judge discretion to suspend a life sentence and grant probation either without confinement or on condition that Terrebonne serve a term of imprisonment not to exceed one year. Such a sentence would have been served at the Parish jail, not the Louisiana State Penitentiary. Thus, while the penalty clause of the narcotics act made a life sentence mandatory on its face, it did not deprive the state sentencing judge of the authority given him by the state's Code of Criminal Procedure. See La.Code Crim.Pro.Ann. arts. 894.1, 895 A.

In State v. Whitehurst, 319 So.2d 907, 909 (La.1975), the Louisiana Supreme Court held, in considering the same statute, that "mandatory life imprisonment, subject to probation and parole opportunities, but imposed without judicial consideration of any attendant mitigating circumstances, is neither excessive, nor cruel and unusual." (Emphasis supplied.) Whitehurst was decided on October 1, 1975, and the emphasized portion of the Supreme Court decision was interpreted by Louisiana courts as allowing the probation alternatives as well as parole. Terrebonne's trial began over 17 months after Whitehurst was rendered, on March 8, 1977.

Whether the judge was in fact mistaken in his comprehension of Louisiana law or whether his remarks were a deliberate effort to escape the painful duty of telling the defendant that he was not imposing one of the lesser sentences permissible, we need not now decide. Although the erroneous imposition of a "mandatory" life sentence in ignorance of discretionary alternatives may violate both the Due Process Clause of the fourteenth amendment and Louisiana law, ² Terrebonne did not raise the issue either in state court or in his federal habeas petition. ³ It is fundamental that we review only the grounds presented in the petition for habeas corpus. Brown v. Alabama, 619 F.2d 376 (5th Cir. 1980). We are, of course, precluded from considering any issues for which state relief has not been sought. 28 U.S.C. § 2254; Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc).

It is significant that, at the time Terrebonne was sentenced, even a "mandatory" life sentence did not inexorably commit a defendant to prison for his natural life. A prisoner sentenced to life might apply for commutation of his sentence to a term of years. The governor might commute the sentence upon the recommendation in writing of the lieutenant governor, attorney general and presiding judge of the court before which the conviction was had or any two of them. At that time, commutation could not reduce the period of incarceration to less than ten years and six months. See 1942 La. Acts No. 50, § 3 (formerly codified at La.Rev.Stat.Ann. § 15:571.7); but see State v. Ledet, 337 So.2d 1126 (La.1976) (legislature may not deprive governor of power to commute sentence).

The statutes authorizing this procedure were repealed, together with the 10 1/2 year minimum, by 1979 La. Acts No. 490, § 2, after Terrebonne was sentenced. Instead, the Louisiana legislature adopted a statute providing for commutation without a minimum mandatory term. La.Rev.Stat.Ann. § 15:574.4 as amended by 1979 La. Acts No. 734, § 1, permits the Board of Pardons to recommend the commutation of a life sentence to a term of years, and, if commutation is granted, then to grant parole. The Board's rules, adopted October 8, 1979 (Rule 4), permit the Board to hear such applications at its discretion, that is, without exacting a minimum term. The governor's power to commute sentences upon recommendation of the Board of Pardons is conferred by the Louisiana Constitution of 1974, Art. 4, § 5(E). This power appears to have been exercised with some frequency. ⁴

II.

The petitions for habeas corpus in both the state and federal court attacked the validity of the statute itself. Terrebonne challenges its imposition of a mandatory sentence for life with no provision for tailoring the sentence in any meaningful way to the gravity of the offense, the culpability of the offender, and the circumstances of each case. This attack fails immediately when the entire pattern of Louisiana law is considered. As we have seen, despite the apparent inexorability of the single statute considered in isolation, the sentencing judge could take into account any factors that might properly weigh in favor of clemency. The state judge had a choice of alternatives in imposing a sentence on Terrebonne although he may not have been aware of them.

A conscientious sentencing judge, considering the small quantity involved in an offense, the manner in which the accused committed it, his previous record, and other appropriate factors pertaining to the individual before him, might put the defendant on probation, conditioned on his serving a one-year jail term, or imposing other conditions, or both. On the other hand, weighing the alternatives, the possibilities of parole board and executive clemency, as well as sentencing considerations appropriate to the individual, the judge might impose a life sentence. ⁵

Given the alternatives actually available to the sentencing judge,...