Toulson v. Beyer

• Citation: 827 F. Supp. 307
• Decision Date: 16 July 1993
• Docket Number: Civ. A. No. 90-4326(WGB).
• Parties: Troy TOULSON, Petitioner, v. Howard L. BEYER, Superintendent, New Jersey State Prison, and Robert J. Del Tufo, Attorney General of New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

827 F. Supp. 307

Troy TOULSON, Petitioner, v. Howard L. BEYER, Superintendent, New Jersey State Prison, and Robert J. Del Tufo, Attorney General of New Jersey, Respondents.

Civ. A. No. 90-4326(WGB).

United States District Court, D. New Jersey.

July 16, 1993.

Robert J. Candido, Cedar Grove, NJ, for petitioner.

Robert J. Del Tufo, Atty. Gen. of NJ by Linda A. Rinaldi, Deputy Atty. Gen., Div. of Crim. Justice, Trenton, NJ, for respondents.

OPINION

BASSLER, District Judge:

Troy Toulson "petitioner", an inmate at New Jersey State Prison in Trenton, New Jersey, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a). For the reasons stated below, the Court will deny the petition.

I. BACKGROUND AND PROCEDURAL HISTORY

The petitioner is presently incarcerated based on a five-count state conviction stemming from the commission of an attempted armed robbery. This Court has previously addressed the merits of this petition. This action is here on remand from the United States Court of Appeals for the Third Circuit. In Toulson v. Beyer, 987 F.2d 984 (3d Cir.1993) "Toulson II" the Third Circuit reversed this Court's grant, in Toulson v. Beyer, 792 F.Supp. 352 (D.N.J.1992) "Toulson I", of petitioner's request for habeas corpus relief with respect to his state court sentence.

In Toulson I, petitioner asserted five grounds for habeas relief. 792 F.Supp. at 353. This Court found that petitioner had failed to exhaust his state law remedies with respect to the first three grounds, id. at 354-55, but that these three claims were procedurally defaulted under New Jersey law, id. at 356, and that requiring their exhaustion prior to hearing the exhausted claims raised in Grounds Four and Five would be futile, id. at 355.

This Court then concluded that it could properly hear the merits of the exhausted claims in Grounds Four and Five. Id. at 356-57. Petitioner's claim under Ground Four, that the total sentence received was manifestly excessive, was then rejected by this Court. Id. at 357. The Court, however, did grant the requested relief with respect to the aggregate state sentence imposed, based on one of the claims asserted by the petitioner in Ground Five. Id. at 358.

Ground Five challenges petitioner's sentence on two distinct bases. First, it alleges that the state court improperly imposed separate consecutive sentences, by failing to merge two different counts upon which petitioner was convicted, through reliance on a misinterpretation of the testimony of one witness. 792 F.Supp. at 357. Second, in Ground Five petitioner claims that the sentencing judge relied upon facts not of record in imposing petitioner's sentence. Id. It is this second claim of Ground Five that formed the basis of the Court's determination that a remand to state court for resentencing was necessary. Id. at 358.

The Third Circuit in Toulson II determined that this Court should not have reached the merits of any of the claims asserted in the habeas petition because of a failure to exhaust state remedies. The court, accordingly, remanded the case to this Court with directions to vacate the order granting the writ of habeas corpus and to dismiss the petition without prejudice. Toulson II, 987 F.2d at 989.

Upon remand, however, petitioner requested permission to waive the unexhausted claims in Grounds One through Three of the petition, so that the Court could properly readdress the merits of the claims in Grounds Four and Five, which is permissible under McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir.1987). See Letter of Troy Toulson, dated March 26, 1993. The respondents consented to this Court's addressing the merits of the exhausted claims on the papers previously submitted, without the necessity of a refiled petition, and supplemented their original answer and provided additional briefing on one of those claims.

II. DISCUSSION

A. Petitioner's Ground Four Claim

In Ground Four petitioner asserts that his aggregate sentence, forty-five years with a twenty-year period of parole ineligibility, is manifestly excessive. Petitioner's brief does not state with any degree of specificity which of his federal constitutional rights are claimed to have been violated. Indeed, the focus of petitioner's claim appears to be that the state court abused its discretion, under New Jersey court precedent, in failing to place a significant emphasis on petitioner's age when considering the aggravating and mitigating circumstances of both the offenses committed and the offender. See Petitioner's Brief In Support of Petition for Writ of Habeas Corpus "Petitioner's Brief" at 15-20.

As was noted in Toulson I, in a habeas corpus proceeding under 28 U.S.C. § 2254(a) this Court has jurisdiction to review both the validity and length of confinement of a state court sentence whenever a constitutional defect in such sentence is properly asserted. Toulson I, 792 F.Supp. at 357; see generally Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The standard of review of such state sentences, however, is very limited. Grecco v. O'Lone, 661 F.Supp. 408, 415 (D.N.J.1987). "So long as the punishment imposed is not based upon any proscribed federal grounds, such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of state concern." Id.

Although Ground Four of Toulson's petition does not enumerate with particularity which federal constitutional provisions were allegedly violated, this Court may nonetheless address those cognizable constitutional claims which may fairly be inferred from the substance of its allegations. See Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977); see also Rule 4, Rules Governing Habeas Corpus Cases. It is sufficient for this Court to give preliminary consideration to Ground Four of the petition that it "states facts that point to a real possibility of constitutional error." Blackledge, 431 U.S. at 75 n. 7, 97 S.Ct. at 1630 n. 7 (emphasis added; internal quotations omitted).

In Toulson I, this Court treated Ground Four as an assertion that the aggregate sentence imposed on petitioner was manifestly excessive because the sentencing judge did not merge two of the counts upon which petitioner was convicted, the aggravated assault and attempted armed robbery counts, and that sentencing petitioner on each count separately thus violated the Double Jeopardy Clause under the Fifth and Fourteenth Amendments. Toulson I, 792 F.Supp. at 357. This argument was rejected, id., and for the reasons there stated, the Court again rejects petitioner's claim and finds no double punishment in his aggregate sentence.

Another constitutional challenge to petitioner's sentence which may be derived from Ground Four is the possibility that the aggregate sentence imposed violates the Cruel and Unusual Punishments Clause of the Eighth and Fourteenth Amendments. In Solem v. Helm, the United States Supreme Court held that the Eighth Amendment's proscription of cruel and unusual punishments prohibits sentences that are disproportionate to the crimes committed. 463 U.S. at 290, 103 S.Ct. at 3009.

This view of the Cruel and Unusual Punishments Clause, however, has been called into question in the more recent Supreme Court ruling in Harmelin v. Michigan, ___ U.S. ___, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In that case a plurality concluded that "Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." Harmelin, ___ U.S. at ___, 111 S.Ct. at 2686 (opinion of Scalia, J., joined by Rehnquist, C.J.). Another plurality concluded, however, that "the Eighth Amendment does not require strict proportionality between crime and sentence, ... but forbids only extreme sentences that are `grossly disproportionate' to the crime." Id. at ___, 111 S.Ct. at 2705 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.), quoting Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 3008, 77 L.Ed.2d 637 (1983). It is presently unclear which, if either, of these views of the Cruel and Unusual Punishments Clause will ultimately prevail in the higher courts. See, e.g., United States v. Frazier, 981 F.2d 92, 95-96 (3d Cir.1992), cert. den. ___ U.S. ___, 113 S.Ct. 1661, 123 L.Ed.2d 279 (1993).

What is readily apparent from Harmelin, however, is that five Justices of the Supreme Court have held that the three-factor analysis of whether a sentence is disproportionate to the crime, established in Solem, 463 U.S. at 292, 103 S.Ct. at 3010, is no longer required. Harmelin, ___ U.S. at ___, 111 S.Ct. at 2686 (opinion of Scalia, J., joined by Rehnquist, C.J.); id. at ___, 111 S.Ct. at 2707 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). It is clear that, under Justice Scalia's analysis, Ground Four does not state a constitutional violation.

Even if Justice Kennedy's somewhat broader analysis ultimately prevails, the determination is whether a "comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at ___, 111 S.Ct. at 2707 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). In applying that analysis to the present matter, it is important to note that the petitioner was convicted on all counts of a five-count indictment. Toulson I, 792 F.Supp. at 353. As the third count was merged into the fifth, petitioner was effectively punished for having violated four distinct statutory provisions, and thus it is not true that "the offense sic for which he was tried and found guilty was essentially one of a single transaction." Petitioner's Brief at 19. On the contrary, it is only in "the legislative branch of the government ... where the substantive power to define crimes and prescribe punishments" lies, Jones v. Thomas, 491 U.S. 376, 380, 109 S.Ct. 2522, 2525, 105 L.Ed.2d...