Opinion
No. C00-2049
March 11, 2003
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned United States Magistrate Judge for issuance of a report and recommendation. It is recommended that petitioner's application for writ of habeas corpus be denied.
Procedural History
This case arises out of the petitioner's July 15, 1994, pleas of guilty to five counts of possession of marijuana with intent to deliver as a second offender and as a habitual offender; five counts of failure affix a drug tax stamp with respect to each of the possession of marijuana with intent to deliver charges; one count of delivery of marijuana as a second offender and habitual offender; one count of tampering with a witness; and one count of fraudulent practices in the fourth degree. Two other charges were dismissed pursuant to the plea agreement. The trial informations can be found in the Appendix at pages 1-22.
On the day of petitioner's plea, the assistant Black Hawk County Attorney indicated that she would seek a 60-year term of imprisonment at his sentencing. Petitioner was free to argue for a lesser sentence. Black Hawk County further agreed that there would "be no federal charges filed in relation to this" (transcript of July 15, 1994, guilty plea at p. 3).
All other references to this transcript will be made simply by referring to the designation "Tr."
At the guilty plea hearing, the defendant was informed of his two other felony drug trafficking convictions. Specifically, he was informed that he had a June 15, 1987, possession of marijuana with intent to deliver conviction and a June 23, 1986, possession of marijuana with intent to deliver conviction (Tr. 31). The defendant agreed that he had been convicted of both offenses (Tr. 32). He specifically admitted to being a second offender under Iowa's drug laws (Tr. 39). With respect to each of the charges for which he pleaded guilty, he specifically admitted being both a second offender and a habitual offender (Tr. 43, Tr. 47, Tr. 50, Tr. 52). Under Iowa law, a second offender is subjected to three times the ordinary penalty for an offense. See Code of Iowa § 124.411(1). A habitual offender must serve three years in prison before being eligible for parole. Code of Iowa § 902.8. Again, when called on to enter his plea, he was asked whether he was a second offender and a habitual offender (Tr. 55-57). The defendant further admitted that each marijuana offense involved at least 42.5 grams of marijuana as is necessary for prosecution as a tax stamp violator. See Code of Iowa § 453B.1(3)(b); 453B.12. The trial information minutes reflect that marijuana in amounts greatly exceeding that amount was seized from the petitioner.
Following his pleas, he was informed of his right to challenge the pleas by motion in arrest of judgment. No such motion was filed.
On August 12, 1994, the defendant was sentenced to consecutive fifteen-year terms on four of the first five marijuana convictions listed above. Other sentences were run concurrent. The result was a 60-year term of incarceration with fines in the amount of $23,400 (App. 46-47). Thirteen automobiles, cash, and other assets were forfeited from the defendant. The defendant was informed of his right to appeal. No direct appeal was filed.
On August 30, 1995, petitioner filed an application for post-conviction relief. Following the denial of that application, he appealed. On appeal, the Iowa Court of Appeals reversed the judgment of the district court and remanded the case for re-sentencing. Specifically, the Iowa Court of Appeals held that petitioner's two prior drug offenses did not qualify for habitual offender status because the conviction for the first offense was not final prior to the commission of the second offense. Sykes v. Iowa, No. 96-1867 (Iowa Ct.App. March 27, 1998).
On remand, the district court noted that in addition to enhancement for habitual offender status, petitioner's sentences were still appropriately enhanced for his second offender status. Accordingly, petitioner was again sentenced to a 60-year term of incarceration and the same fines as were previously imposed. See Transcript of October 29, 1998, Re-sentencing at pp. 27-33. Petitioner appealed and the Iowa Court of Appeals affirmed the re-sentencing order on April 28, 2000. Iowa v. Sykes, No. 98-2183 (Iowa Ct.App. April 28, 2000). The Iowa Supreme Court denied further review on July 28, 2000.
While plaintiff's first application for post-conviction relief was pending, he brought another action for post-conviction relief on March 27, 1997. That matter came on for trial on March 24, 1999. In that case, petitioner sought to overturn his 1986 conviction due to ineffective assistance of counsel. The district court noted that the petitioner failed to show cause and prejudice for his failure to raise the claim of ineffective assistance of counsel in the earlier-filed application for post-conviction relief. The court noted that the issue should also have been raised and argued at the October 29, 1998, re-sentencing. Finally, the court noted that even if petitioner's 1986 conviction was the product of ineffective assistance of counsel for failure to object to habitual offender status, the Black Hawk County district court could still sentence petitioner as a second offender by reason of his other earlier conviction for possession with intent to deliver marijuana and that the other conviction had never been challenged. Accordingly, the district court dismissed the post-conviction relief action on March 30, 1999. The Supreme Court dismissed petitioner's appeal from that decision on December 13, 1999. as frivolous.
The May 30, 1999, decision of Stephen C. Clark, Iowa District Judge, and the Supreme Court's decision dismissing the appeal as frivolous are attached to the petitioner's petition in this matter.
Claims Made In Federal Court
On October 9, 2000, petitioner filed a pro se petitioner for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Counsel was appointed to represent him. In his petition, the petitioner states the following as grounds for relief:
1. Trial counsel failed to object or argue that adequate legal and factual basis was not established on each count. Further, trial counsel failed to competently advise Bobby Jean Sykes as to his status as a habitual offender.
2. Bobby Jean Sykes argues that his current sentence violates Double Jeopardy prohibition.
3. The court erred by sentencing Bobby Jean Sykes as a second offender, the trial informations allege that Bobby Jean Sykes is both a habitual offender and a second offender. The legal significance of both allegations is that they can turn a five (5) year sentence into a fifteen (15) year sentence.
4. The district court erred by imposing excessive jail time, fines and surcharges by failing to order the return of seized property. The court sentenced Bobby Jean Sykes fo $24,000 in fines, surcharges and court costs, as well as a sixty (60) year prison sentence.
5. Additionally, without specifically mentioning it, Bobby Jean Sykes attacks the conviction arising out to the September 9, 1985, arrest on the grounds that he received ineffective assistance of counsel in that his trial counsel failed to move to suppress the arrest, and all evidence arising there from, on the grounds of probable cause to affect the arrest did not exist. Although the time period fo challenge such conviction has expired, the past conviction is being used to enhance the current sentence, Bobby Jean Sykes believes the matter is appropriately before the court.
Petitioner's January 16, 2000, brief at pp. 3-4.
Ineffective Assistance of Trial Counsel
Petitioner contends that his trial counsel was ineffective in advising him to plead guilty and advising him that he was a habitual offender as well as a second offender. He states that the significance of being found a second offender is the same as being found a habitual offender. As noted above, the Iowa Court of Appeals reversed only the finding of habitual offender status for ineffective assistance of counsel.
In his brief, petitioner notes that the State courts have failed to give him relief with regard to having been classified as a second offender. Nowhere in the brief does the petitioner identify the reasons why it was ineffective to fail to challenge the second offender status. The defendant admitted that he had been convicted of two felony drug offenses in 1986 and 1987. The defendant was specifically told that he faced a maximum sentence of fifteen years on each enhanced count with a mandatory minimum sentence of three years (Tr. 31). As noted above, the state indicated that it would seek a 60-year term of imprisonment. The court indicated to the defendant that it would not impose a sentence in excess of that requested by the state (Tr. 11).
Finally, petitioner argues that he was advised to plead guilty because he did not have sufficient funds to go to trial. There is no citation in his brief to any place in the State court record where the petitioner has previously made this argument to any court of the State of Iowa. A federal habeas petitioner who has not presented his claims to the State court for exhaustion, and has no other available State court remedies, generally must show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim. Wainwright v. Sykes, 433 U.S. 72 (1977). In Edwards v. Carpenter, the Supreme Court addressed the issue of whether an ineffective assistance of counsel claim can itself be procedurally defaulted. Edwards v Carpenter, 120 S.Ct. 1587 (2000). Ineffective assistance of counsel can be cause for a procedural default if it rises to the level of an independent constitutional violation. Id. The claim for ineffective assistance of counsel, however, must be properly submitted to the State court. The petitioner does not even attempt to show cause and prejudice as required. He has never made this specific claim of ineffective assistance of counsel to any State court. This claim is clearly procedurally defaulted.
The Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684 (1984). The United States Supreme Court has most recently reformulated the Strickland test for constitutionally ineffective assistance of counsel in Lockhart v. Fretwell, 506 U.S. 364 (1993). Counsel is constitutionally ineffective under Fretwell when (1) counsel's representation falls below an objective standard of reasonableness; and (2) the errors are so prejudicial that the adversarial balance between defense and prosecution is upset, and the verdict is rendered suspect. Prejudice does not exist unless there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694.
If the court were to reach the merits of this procedurally defaulted claim, this court could not find prejudice. Although the Iowa Court of Appeals found that ineffective assistance of counsel was grounds to set aside the petitioner's habitual offender status, the petitioner has no serious claim to set aside the second offender status. The second offender status always subjected the petitioner to enhanced penalties without resort to habitual offender status. Accordingly, the same sentence was appropriately imposed upon resentencing.
Double Jeopardy
The petitioner next argues that the use of prior convictions to enhance a subsequent penalty is a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
The petitioner's argument has been squarely rejected by the Supreme Court of the United States in Monge v. California, 524 U.S. 721, 727-28 (1998), where the Supreme Court stated:
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment provides: "[N]or shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb." We have previously held that it protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. Historically, we have found double jeopardy protections inapplicable to sentencing proceedings because the determinations at issue do not place a defendant in jeopardy for an "offense." . . . Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence "because of the manner in which [the defendant] committed the crime of conviction." . . . An enhanced sentence imposed on a persistent offender thus"is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes" but as "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one."
See also United States v. Bates, 77 F.3d 1101 (8th Cir. 1996).
Application of the Second Offender Statute
In his next argument, the petitioner alleges that he should not be considered a second offender because his June 23, 1986, conviction was the product of ineffective assistance of counsel. Specifically, he claims that he was arrested for that offense without probable cause and his lawyer was ineffective for failing to move to suppress the evidence. The defendant appealed that case to the Supreme Court of Iowa, State v. Sykes, 412 N.W.2d 578 (1987). In his argument before the Iowa Supreme Court, the defendant contended that there was no probable cause for his arrest. The Supreme Court noted that the argument had not been made in the trial court and refused to address it. The petitioner's post-conviction relief action was dismissed for procedural default and the appeal was dismissed as frivolous. Therefore, the issue of probable cause for the arrest and ineffective assistance of counsel for failing to move to suppress the evidence in the trial court have never been addressed by the Iowa Supreme Court. The petitioner does not even attempt to demonstrate cause and prejudice for his procedural default. Accordingly, this claim must be rejected.
It is obvious that procedural default bars any consideration of this claim. However, it is also clear that this argument is specifically foreclosed by the Supreme Court's decision in Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001). There, the Court held that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant may generally not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained. Id. at 403-404. This petitioner is no longer in "custody" on the 1986 charge and therefore cannot challenge it. He is also a second offender because of the 1987 drug offense that he does not even mention here, much less challenge on constitutional grounds.
The only exception is where there was a failure to appoint counsel in violation of the Sixth Amendment. Here, the claim is ineffective assistance of counsel which shows that counsel was appointed.
Cruel and Unusual Punishment
The defendant next contends that a 60-year sentence with fines and surcharges of $23,400 together with forfeiture of 13 automobiles, cash, and other items constitutes cruel and unusual punishment. Two very recent decisions from the United States Supreme Court make it clear that the petitioner is entitled to no relief with respect to this argument. In Ewing v. California, ___ U.S. ___, 2003 WL 728753 (March 5, 2003), the United States Supreme Court rejected an Eighth Amendment challenge brought by an inmate sentenced to 25 years to life under California's "three strikes" law. Ewing received the 25-year to life sentence after stealing three golf clubs priced at $399 each. He had previously been convicted of numerous theft, burglary, robbery, and other charges.
In Ewing, the Supreme Court stated that the Eighth Amendment contains a narrow proportionality principle that applies to non-capital sentences. The Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. However, outside the context of capital punishment, successful proportionality challenges have been exceedingly rare. Id. (citing Rummel v. Estelle, 445 U.S. 263 (1980)). In Ewing, the Court specifically noted that it had upheld a sentence of two consecutive terms of twenty years in prison for possession with intent to distribute nine ounces of marijuana and distribution of marijuana. See Hutto v. Davis, 454 U.S. 370 (1982). Finally, in Ewing, the Supreme Court noted that its decision in Harmelin v. Michigan, 501 U.S. 957 (1991), stood for the proposition that the Eighth Amendment did not require strict proportionality between a crime and its sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. In Harmelin, the Supreme Court held that the imposition of a mandatory life term of incarceration within the possibility of parole was constitutionally permissible where the defendant had possessed more than 650 grams of cocaine. This was true despite the fact that the defendant in that case had no prior felony convictions. See also United States Prior, 107 F.3d 654 (8th Cir. 1997) (mandatory life imprisonment term for defendant convicted of three prior felony drug crimes upheld); United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991) (life imprisonment for possession more than fifty grams of cocaine with two felony drug convictions not cruel and unusual punishment). Hernandez v. Newland, 14 Fed.Appx. 824 (9th Cir. 2001) (Indeterminate life sentence not an Eighth Amendment violation for recidivist who possessed .06 grams of PCP).
A second decision of the Supreme Court from March 5, 2003, clearly shows that the petitioner is entitled to no relief here. In Lockyer v. Andrade, ___ U.S. ___ 2003 WL 728766 (March 5, 2003), the Supreme Court expounded on the standard for habeas relief found in 28 U.S.C. § 2254(d)(1). That provision of the habeas statute prohibits relief unless the State court decision at issue resulted in a decision that was contrary to, or involved in unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. In Andrade, the Court noted that the Supreme Court's Eighth Amendment decisions have not been a model of clarity. Specifically, it stated that the Court had not established a clear or consistent path for courts to follow. Only one governing principle emerged as clearly established for purposes of § 2254(d)(1). That clearly established principle is that a gross disproportionality principle is applicable to sentences that do not involve capital punishment.
In Andrade, the Supreme Court held that, for purposes of 28 U.S.C. § 2254(d)(1), a State court decision is "contrary to our clearly established precedent if the State court applies a rule that contradicts the governing law set forth in our cases" or "if the State court confronts a set of facts that are materially indistinguishable from a decision of this court and nevertheless arrives at a result different from our precedent," citing Williams v. Taylor, 529 U.S. 362 (2000). Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the State court identifies the correct governing legal principle from Supreme Court decisions but unreasonably applies that principle to the facts of the petitioner's case. However, the Court noted that it is not enough that the federal habeas court be simply left with a firm conviction that the State court decision was erroneous. Rather, that application must be objectively unreasonable. In Andrade, a 25-year to life term of imprisonment did not violate the Eighth Amendment where the defendant was convicted of stealing $84 in video tapes from a K-Mart store after having been convicted of a misdemeanor theft offense, multiple counts of first degree residential burglary, transportation of marijuana, petty theft, and another felony offense of transportation of marijuana. The Supreme Court stated that the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle — the precise contours of which are unclear. Accordingly, habeas relief was not available.
The defendant in this case was convicted of robbery with aggravation in 1975. He was convicted of felony drug trafficking offenses in 1986 and 1987. On January 5, 1993, he discharged his 1987 drug conviction. On January 22, 1993, the defendant committed the first of many drug offenses which are the subject of this case. He pleaded guilty to thirteen serious offenses. A sixty-year term of incarceration with the possibility of parole for a defendant who had been convicted of over fifteen felonies including two prior felony drug offenses and a prior felony crime of violence is not grossly disproportionate to the offenses of conviction and does not constitute cruel and unusual punishment in light of the authorities set forth above. Like the petitioner in Andrade, supra, petitioner is also unable to show either that the State of Iowa's decision was either "contrary to" or involved an "unreasonable application" of "clearly established" Supreme Court precedent.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the petitioner's application for writ of habeas corpus be denied. The court further recommends that a certificate of appealability not be issued.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).