Opinion
No. C 00-363 MMC (PR)
April 12, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a prisoner of the State of California, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was reassigned to the undersigned following an order relating the above-entitled action to Tran v. Terhune, C-99-3438-MMC (PR). Pursuant to the Court's order, respondent has filed an answer denying the claims in the petition, along with a memorandum and exhibits.
In 1996, a jury in Santa Clara County Superior Court convicted Le of robbery, false imprisonment, assault, burglary, kidnaping and related enhancements. Le was convicted of the same counts as his co-defendant Tran, the petitioner in the related case. The trial court sentenced Le to life plus an additional ten years in state prison. This was the same sentence as received by Tran in all respects, with the exception that Le's sentence included a four-year enhancement for personal use of a firearm. Le and Tran raised essentially the same claims in their direct state court appeals. On October 9, 1998, the California Court of Appeal denied their appeals in a single opinion. On February 1, 1999, the Supreme Court of California denied their petitions for review in a single, unexplained opinion.
The claims raised by Le in the instant habeas petition — insufficient evidence, faulty jury instructions, prosecutorial misconduct and excessive sentence — are the same as those raised by Tran in his federal habeas petition. The Court has already determined that these claims are without merit. See Tran v. Terhune, No. C-99-3438- MMC (PR), slip op. at 4-14 (N.D. Cal. Sept. 18, 2000) (attached hereto as Appendix A). Accordingly, Le's petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.
In support of his claims, Tran raised arguments that Le does not make here; Le makes no new arguments. All the arguments advanced by Le were raised by Tran and rejected by the Court.
If anything, Le played a more significant role in the crimes than Tran: Le dry-fired the gun at Russell; Le struck and kicked Russell; and Le escorted DeGuzman from the car to the building at gunpoint.
APPENDIX A
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
HUNG THANH TRAN, Petitioner, No. C 99-3438 MMC (PR)
v. ORDER DENYING PETITION FOR C.A. TERHUNE, Warden, WRIT OF HABEAS Respondent. CORPUS
Petitioner, a California prisoner proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court found that petitioner stated cognizable claims, and ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer denying the merits of the petition, along with a supporting memorandum and exhibits. Petitioner has filed a traverse.
Petitioner is currently housed in a federal prison under a witness protection program, but his incarceration is bases on a California state court conviction.
BACKGROUND
In May 8, 1995, a jury in Santa Clara County Superior Court convicted petitioner of kidnapping for robbery, robbery, false imprisonment, assault, attempted car theft, burglary and conspiracy to commit burglary. Petitioner's direct appeals to the California Court of Appeal and the Supreme Court of California, in which he raised the same claims he raises here, were unsuccessful.
FACTUAL BACKGROUND
This background is derived from the undisputed factual summary in the opinion of the California Court of Appeal, the last explained state court opinion. See People v. Tran, No. H015385, slip op. at 3-9 (Cal.Ct.App. Oct. 9, 1998).
On April 7, 1995, at about 11:45 p.m., Sheldon Russell ("Russell") was on duty as a security guard at SCI Systems, a microchip manufacturer in San Jose. He was on the phone with another SCI employee when he saw two Vietnamese men come to the lobby door. Believing they were there to pick up another SCI employee, Lilibeth Esposo ("Esposo"), Russell let them in. The men entered the lobby, whereupon one of them went to the security office, asked Russell, "Where's John?", started cursing, and drew a gun, which he dry-fired several times. Russell later identified this man as petitioner's codefendant Trieu Le ("Le"). The employee on the phone with Russell overheard these events, hung up and called 911.
Le struck Russell with the gun, ordered him down on the ground and began kicking him. Another masked Vietnamese man asked Russell where the videotapes from the security camera were kept, and Russell handed them over. The man asked Russell whether the police were coming and whether there were any other employees nearby. Throughout this questioning, the man held a knife to Russell's face; he cut Russell across the nose, warned him he would be killed if the police arrived, and tied him up. Esposo was dragged into the security office, where she saw a man striking Russell.
Esposo's uncle, Delfin DeGuzman ("DeGuzman"), arrived at SCI to pick her up shortly before midnight. He waited about 5-10 seconds with his engine running, at which time he saw Le emerge from the building and approach DeGuzman's car. After a brief exchange, Le pulled a gun on DeGuzman and ordered him out of the car and inside the building. Le then ordered DeGuzman to get down on the floor of the security office. DeGuzman saw three or four masked men in the lobby and his niece lying on the floor crying. He was eventually moved with Russell and Esposo to a locker area inside the cafeteria, where he encountered a number of other intruders. A few minutes later, DeGuzman's car alarm went off. One of the intruders took the keys to DeGuzman's car and threatened to kill DeGuzman if he did not cooperate. The men fled, and Russell, DeGuzman, and Esposo escaped.
The distance from DeGuzman's car to the building was 45 feet; from DeGuzman's car to the security office and locker area, the distances were 57 feet and 94 feet, respectively.
A few moments later, the police arrived, arrested Le, and found the gun he had used nearby. During this arrest, a number of masked men, including petitioner, fled from the building. The police gave chase and caught petitioner and at least one other man. A witness saw one of the men throw something in the dumpster, and the police found the two security videotapes inside. Russell took the police through the SCI building and found storage containers that had been broken open, although the containers with the most valuable microchips had not been opened.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "Clearly established federal law, as determined by the Supreme Court of the United States" under § 2254(d)(1) refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Id.
In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits. See LaJoie v. Thompson, 201 F.3d 1166, 1172 n. 9 (9th Cir. 2000). This Court reviews the opinion of the California Court of Appeal in this case because, unlike the Supreme Court of California's one-line summary denial, it explains the denial of petitioner's claims on their merits.
B. Legal Claims
1. Insufficient Evidence
Petitioner claims that his conviction for kidnapping for the purpose of robbery is unconstitutional because it was supported by insufficient evidence. A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, which, if proven, entitles him to federal habeas relief. See Jackson v. Virginia, 443 U.S. 307, 321 (1979). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, however. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, the writ is granted. See Jackson, 443 U.S. at 324.
Respondent initially argues that this claim is procedurally barred. Under the doctrine of procedural default, a federal court will not review questions of federal law decided by a state court if the state court's decision rests on a state procedural rule that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Respondent does not cite an independent and adequate state law ground upon which the state courts rejected petitioner's claim. Instead, respondent simply states petitioner "failed to preserve" this claim because he did not raise the federal law basis of this claim in the state appellate courts. Moreover, petitioner did in fact cite the federal basis of his claim in his appellate briefs, and the Court of Appeal rejected the claim on its merits. See Pet. Exh. A at 10-23; Traverse, Exh. A at 6. This renders respondent's procedural default argument meritless. See Ylst v. Nunnemaker, 501 U.S. 797, 801-03 (1991) ("If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal court review that might otherwise have been available.").
This Court refers to the Court of Appeal's decision because that is the last state court to explain its decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
Petitioner makes several arguments that the evidence showed insufficient movement of the victims to constitute kidnap for robbery under California law. These arguments assert violation of state law, which may not be the basis of federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Under California law at the time, the "asportation" element of the crime of kidnapping for purposes of robbery was that the defendant moved the victim to "another country, state or county or into another part of the same county." Cal. Pen. Code §§ 207, 209. The California Court of Appeal rejected petitioner's argument on the grounds that the amount of movement of DeGuzman — 45 feet to the building and then within the building — was sufficient to satisfy the asportation requirement. Petitioner does not raise a federal due process argument that the evidence of movement was too weak for a reasonable juror to find beyond a reasonable doubt that the movement had in fact occurred. Rather, petitioner argues that the movement, which he does not contest occurred, is insufficient to constitute asportation under the California Penal Code. Not surprisingly, petitioner cites only California decisions interpreting California law to support these arguments. Habeas relief, however, may not be granted by this Court on the basis of alleged misinterpretation of California law by the California courts as to what constitutes asportation in the state crime of kidnapping for the purpose of robbery. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (a determination of state law by a state appellate court is binding in a federal habeas action).
Petitioner has also filed a motion for an evidentiary hearing on the ground that the facts show there was insufficient movement of DeGuzman to prove asportation. An evidentiary hearing is not allowed, however, because the facts petitioner asserts are not new; they were already presented and fully adjudicated at trial. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (no evidentiary hearing required where issues presented can be resolved by reference to the state court record); Villafuerte v. Stewart, 111 F.3d 616, 632-33 (9th Cir. 1997) (no hearing required where the petitiner seeks to present the same evidence heard by the state court).
Petitioner also argues that the evidence was insufficient to convict him of kidnapping for the purpose of robbery because the intruders were only successful in stealing worthless surveillance videotapes and were unsuccessful in their intended theft of the computer chips. The California offense of kidnap for purposes of robbery requires the specific intent to commit robbery. See People v. Thorton, 11 Cal.3d 738, 765 (1974). As the Court of Appeal explained, there was ample evidence that the intruders had the specific intent to commit a forcible taking of the videotapes: the intruders knew where the videotapes and chips were located; the first thing the intruders asked for were the videotapes. And while the tapes had little market value, they were valuable to the intruders because they contained incriminating evidence. A rational jury could have found that the intruders had the specific intent to steal both the computer chips and the videotapes. The Court of Appeal also explained that as long as there is specific intent to rob, California law does not require that the robbery ultimately be completed. See People v. Beaumaster, 17 Cal.App.3d 996, 1007 (1971). Petitioner admits that stealing the computer chips was the specific purpose of the venture. Further, it is reasonable to conclude that DeGuzman was moved from his car in order to prevent him from alerting the police as to the robbery. Thus, a rational juror could have concluded that even though the intruders ultimately did not obtain the chips, they kidnapped DeGuzman for the purpose of stealing them. Accordingly, the state court's finding that there was sufficient evidence to satisfy the specific intent requirement of kidnapping for purposes of robbery was neither contrary to nor an unreasonable application of federal law.
Petitioner also argues that there was insufficient evidence that the risk of harm to DeGuzman increased when he was moved. Under California law, a defendant's movement of a victim must increase the risk of harm in order to satisfy the asportation element of kidnapping for the purpose of robbery. See People v. Daniels, 71 Cal.2d 1119, 1139 (1969). Petitioner argues that moving DeGuzman from his car to the building did not increase the risk of harm because there were picture windows in the building lobby allowing any passerby to see him. This Court disagrees. Inside the building there were more intruders, some of them armed with guns. Furthermore, once inside the building, DeGuzman was taken directly to the security office and eventually to a windowless room where he could not be seen by a potential witness or rescuer. The state court's rejection of this argument was neither contrary to nor an unreasonable application of federal law because a rational juror readily could have found an increased risk of harm to DeGuzman resulting from his movement from outside to inside the building.
2. Jury Instructions
Petitioner claims that the trial court violated his constitutional rights by rejecting his version of a jury instruction on kidnapping for the purpose of robbery in favor of the prosecution's version of the instruction. A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the challenged instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. Similarly, a state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), before granting relief in habeas proceedings. See Calderon, 525 U.S. at 146.
Petitioner contends that the given instruction misstated California law regarding kidnapping for purposes of robbery in two ways. First, the instruction stated that the person kidnapped need not be the same person that the defendant intended to rob. This is in fact a correct statement of California law. See People v. Laursen, 8 Cal.3d 192, 198-99 (1972); People v. Zurica, 225 Cal.App.2d 25, 27 (1964). Petitioner argues that these cases should not apply here because they involved kidnappings of bystanders during an escape. However, the Court of Appeal rejected, as a matter of state law, the argument that these cases are limited to the context of an escape. As indicated above, this Court must defer to the state courts' determination that a given instruction is a correct interpretation of state law. See, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (holding state law determination that arsenic trioxide is a poison as a matter of law, and not an element of crime for jury determination, not open to challenge on federal habeas review); Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (holding failure to define recklessness constitutes, at most, error of state law, where recklessness relevant only as to issue on which government had no burden of proof). Petitioner's other complaint is that the jury instruction did not prohibit the jury from considering the movement of DeGuzman from a point adjacent to the building to inside the building. The Court of Appeal also rejected this argument as a matter of state law. See People v. Beaumaster, 17 Cal.App.3d 996, 1004-06 (1971). As a result, federal habeas relief is not available on the basis of the two asserted state law deficiencies in the instruction.
Petitioner also argues that the given instruction did not clearly state that the kidnapping had to be for the purpose of effectuating a robbery, and consequently the instruction allowed a conviction based upon a kidnapping that just happened to occur close in time to the robbery. The Court of Appeal found the instruction adequately conveyed to the jury the requirement that the kidnapping be committed for the purpose of robbery. In so finding, the court relied on the following statements in the instruction:
"In order to p rove such crime, each of the following [five] elements must be proved . . . Two, the movement of such person was caused with the specific intent to rob any individual, and the person causing such movement had such specific intent to rob when the movement commenced. . . . [¶] Where a person is charged with the crime of kidnapping for the purpose of robbery, it is not necessary to establish that such purpose was accomplished. The crime is if the kidnapping is for such a purpose. . . . [¶] An element of the crime of kidnap for robbery is the specific intent to rob. That crime, however, is not committed unless the intent is formed before the kidnap commences and the movement of the victim is undertaken with that intent and purpose in mind."
This instruction, petitioner contends, does not explain to the jury that the kidnapping must have been in furtherance of the robbery, and thus the jury was allowed to convict under circumstances where the kidnapper coincidentally intended to commit an unrelated robbery. Petitioner's argument is unpersuasive. The last sentence of the instruction provides that the movement must be done with the specific intent to rob "in mind." That sentence clearly requires that the robbery and the kidnapping be linked, and would not allow a reasonable juror to convict based simply on a robbery committed close in time, but unrelated, to the kidnapping. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979) (due process does not require issuance of instructions in defendant's precise terms as long as the instructions adequately convey defendant's theory). In any event, the asserted error had no substantial or injurious effect on the verdict. As explained above, there was ample evidence that the intruders did in fact kidnap DeGuzman in order to further the robbery they ultimately proceeded to commit.
Petitioner also claims it was improper for the trial court to reject his proffered instruction "A", which informed the jury that moving the victim within the premises where he was accosted could not be considered in determining whether the victim was moved a sufficient distance to constitute kidnapping. Due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982). In this case, due process did not require issuance of instruction "A" because the intruders did not simply move DeGuzman within the premises; the intruders accosted DeGuzman outside the SCI building, brought him inside, and then moved him from one place to another inside the building. Even if the jury had been instructed not to consider movement solely within the SCI building, it is unlikely such instruction would have affected the verdict. As explained above, the movement from outside the building to inside the building was sufficient under California law to satisfy the asportation requirement.
Finally, petitioner claims that it was improper to reject his proffered instruction because it informed the jury that moving the victim from outside to inside the building was not by itself enough to cause an increased risk of harm. Petitioner's proffered instruction was unnecessary, however, because the instruction read to the jury already made this clear. The instruction as given advised the jury that a decreased likelihood of detection of the victim was one factor that "may" be considered in determining whether the risk of harm to the victim was increased. The instruction listed other factors as well, including the "danger inherent in . . . attempts to escape" and the "attacker's enhanced opportunity to commit additional crimes." The instruction did not require the jury to consider any of the listed factors, and allowed the jury to consider other unspecified factors that might bear on the risk of harm. The jury thus was encouraged to consider the particular circumstances under which DeGuzman was moved inside and the effect of that movement on his safety in the context of all the facts presented. The instruction adequately conveyed to the jury that the simple fact of moving DeGuzman inside was not by itself sufficient to establish an increased risk of harm to DeGuzman. Accordingly, the rejection of petitioner's proffered instruction did not render the trial fundamentally unfair.
For the foregoing reasons, the state courts' rejection of petitioner's jury instruction claims was neither contrary to nor an unreasonable application of federal law.
3. Prosecutorial Misconduct
Petitioner claims that the prosecutor committed misconduct by arguing multiple theories to the jury, one of which was "legally incorrect." Petitioner cites no federal authority, let alone any decision by the United States Supreme Court, to the effect that arguing a legally incorrect theory to the jury violates a federal law or constitutional provision. In the absence of such authority, habeas relief is unavailable under 28 U.S.C. § 2254(d)(1). See generally Tran v. Lindsey, 212 F.3d 1143, 1149-50 (9th Cir 2000) (holding section 2254(d)(1) requires that state court decision conflict with Supreme Court precedent). The only related federal authority of which the Court is aware holds that when a jury delivers a verdict that may rest on either a legally valid or legally invalid ground, the verdict may not stand where the court cannot determine its basis. See Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir. 1999); see, e.g., United States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). Such cases, however, involved jury instructions which allowed the jury to convict based upon an invalid theory of guilt. The challenged statement here was not made by the trial judge in the course of instructing the jury; it was made by the prosecutor during closing argument. Petitioner's claim would require extending the constitutional limitation of Keating and Hood to a prosecutor's statements. As the Supreme Court has explained, such an extension is a dubious proposition:
Indeed, petitioner abandons this claim altogether in his traverse.
[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. Arguments of counsel which misstate the law are subject to objection and to correction by the court. This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court.
Boyde v. California, 494 U.S. 370, 384-85 (1989) (citations omitted). In light of these considerations, and given the absence of authority to the contrary, habeas relief on this claim is denied.
4. Cruel and Unusual Punishment
Petitioner claims that his sentence of life in prison with the possibility of parole violated his rights under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Petitioner states that the offense was merely a bungled burglary, that he did not know about the kidnapping, and that he has been cooperative with the government. Petitioner argues that his sentence is grossly disproportionate to his conduct. A sentence that is not proportionate to the crime for which the defendant was convicted violates the Eighth Amendment. See Solem v. Helm, 463 U.S. 277, 303 (1983). However, "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." Id. at 289-90. A challenge to the proportionality of a sentence should be analyzed using objective criteria, which include: (1) the gravity of the offense and harshness of the penalty; (2) a comparison of sentences imposed on other criminals in the same jurisdiction; and (3) a comparison of sentences imposed for the same crime in other jurisdictions. See id. at 290-92.
The Supreme Court's most recent opinion addressing proportionality, Harmelin v. Michigan, 501 U.S. 957 (1991), did not produce a majority opinion. Chief Justice Rehnquist and Justice Scalia joined in a two-justice plurality to conclude that Solem should be overruled and that no proportionality review exists under the Eighth Amendment other than with respect to death sentences. See id. at 961-985. A three- justice concurrence comprised of Justices Kennedy, O'Connor and Souter concluded that Solem should not be rejected and that the Eighth Amendment contains a narrow proportionality principle that is not confined to death penalty cases, but that forbids only extreme sentences which are grossly disproportionate to the crime. See id. at 997-1001. After Harmelin, only extreme sentences that are grossly disproportionate to the crime violate the Eighth Amendment. See United States v. Carr, 56 F.3d 38, 39 (9th Cir. 1995).
As the Court of Appeal explained in the instant case:
This was a case in which 10 to 15 individuals broke into a company that manufactured computer equipment. They were masked, some were armed, they carried matenal to tie up victims, they communicated on walkie-talkies. They brought a person not in danger into the building at gunpoint. They made ee victims lie on the floor, he kicked and repeatedly struck one of them, whose nose they also cut with a knife. They threatened both of the male victims with death.
Although petitioner's sentence is long, it cannot be said to be more extreme or disproportionate to the crime than sentences previously upheld under the Eighth Amendment. See, e.g., Harmelin, 501 U.S. at 996 (upholding sentence of life without possibility of parole for first offense of possession of 672 grams of cocaine); Harris v. Wright, 93 F.3d 581, 583 (9th Cir. 1996) (holding sentence of life without parole for 15-year-old murderer does not raise inference of gross disproportionality).
Petitioner's claim is without merit for anotherreason. Generally, as long as the sentence does not exceed the statutory maximum, it will not be overturned on Eighth Amendment grounds. See Belgarde v. Montana, 123 F.3d 1210, 1215 (9th Cir. 1997); see also United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) ("`[a] sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual."') (citation omitted). California Penal Code section 209(b)(1) provides that a defendant who commits kidnapping for the purpose of robbery receives life in prison with the possibility of parole.
Accordingly, petitioner has not shown that his sentence constituted cruel and unusual punishment under the Eighth Amendment.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. Petitioner's motion for an evidentiary hearing is also DENIED. All other pending motions are TERMINATED. The Clerk shall close the file.
IT IS SO ORDERED
DATED: /s/Maxine M. Chesney MAXINE M. CHESNEY United States District Judge
JUDGEMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
Le's petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.