Opinion
Case No. 3:05-cv-82.
May 10, 2006
OPINION/REPORT AND RECOMMENDATION
On July 27, 2005, pro se petitioner initiated this case by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. After a preliminary review of the petition found that summary dismissal was not appropriate, the respondent was directed to file an answer. The respondent did so on March 20, 2006. This matter is before the undersigned for a report and recommendation pursuant to LR PL P § 83.01, et seq. I. Factual and Procedural History
The factual and procedural history of this case is largely undisputed. Therefore, the Court will recite the history as outlined by the parties in their pleadings. According to the parties, on June 6, 1995, the Grand Jury of Braxton County, West Virginia, returned an indictment against petitioner for two counts of aggravated robbery, one count of burglary, one count of grand larceny and one count conspiracy to commit grand larceny. A jury trial was conducted from November 27-29, 1995. The jury found petitioner guilty as charged in Counts 4 and 5, grand larceny and conspiracy to commit grand larceny, but was unable to reach a verdict as to Counts 1, 2, or 3.
On January 9, 1996, the prosecuting attorney filed a recidivist information and the necessary evidence showing petitioner's prior convictions.
On January 12, 1996, the circuit court entered an Order accepting the jury's verdict and set a hearing for that same day. At that hearing, petitioner was sentenced to 1-10 years on the grand larceny conviction and 1-5 years on the conspiracy conviction, to be served consecutively. The Court entered its judgment and commitment Order on January 30, 1996.
On February 27, 1996, the circuit court held a recidivist trial at which petitioner was found guilty. On April 12, 1996, the circuit court filed an amended commitment order reflecting a sentence of life and a new sentencing date of April 2, 1996.
On June 5, 1996, the circuit court entered a judgment and sentencing order which outlined the events occurring at petitioners' January 12th sentencing and at his February 27th recidivist trial. Moreover, the Order sentenced petitioner to life in the West Virginia State Penitentiary.
On July 11, 1996, the circuit court filed another amended commitment Order. This Order was substantially the same as the court's April 12th Order, except that it reads "LIFE as to each charge and the sentences shall be served concurrently."
II. State Court Proceedings A. Direct Appeal
Petitioner filed a direct appeal of his conviction and sentence on April 14, 1997, challenging his life sentence under the Eighth Amendment of the United States Constitution and Article III, Section 5 of the West Virginia Constitution. The West Virginia Supreme Court of Appeals refused the petition on November 10, 1997. However, on December 12, 2002, the West Virginia Supreme Court of Appeals allowed petitioner to file a second direct appeal. In his second appeal, petitioner raised the following assignment of error:
Whether the trial court erred when it sentenced the petitioner to life imprisonment even though petitioner had previously been sentenced on the principal offenses and had partially satisfied the judgment rendered by the court prior to the recidivist conviction and judgment.
Petitioner raised two other assignments of error that are not pertinent to the claim raised in the instant petition.
The West Virginia Supreme Court of Appeals refused the second petition on May 14, 2003.
B. State Habeas in Braxton County Circuit Court
After an omnibus habeas hearing held on April 18, 2000, petitioner filed a petition and amended petition for writ of habeas corpus pursuant to West Virginia Code § 53-4A-1 with the circuit court. In his petition, the petitioner raised the following ground for relief:
Whether the court erred in denying relief to petitioner based upon the trial court's sentencing petitioner to life imprisonment even though the petitioner had previously been sentenced on the principal offenses and had partially satisfied the judgment rendered by the court.
Petitioner raised three other grounds for relief that are not pertinent to the claim raised in the instant petition.
The habeas court addressed the merits of petitioners' claims and concluded on March 20, 2001, that the relief requested should be denied, with one exception, to enter a sentencing order permitting petitioner to directly appeal his conviction and sentence. This time, however, the circuit court sentenced petitioner to 1-10 years for the grand larceny conviction, 1-5 years for the conspiracy conviction, and to life for the recidivist conviction.
C. State Habeas Appeal to the West Virginia Supreme Court of Appeals
On August 12, 2004, petitioner filed a habeas appeal to the West Virginia Supreme Court of Appeals. The petition was refused on June 29, 2005.
D. Other State Collateral Proceedings
On February 3, 2004, petitioner filed a motion for correction of sentence pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure. In that motion, petitioner requested that the circuit court void his illegal recidivist sentence. Petitioners' motion was opposed by the State and his motion was denied by the circuit court on February 18, 2004.
Petitioner filed another motion to correct illegal sentence in the circuit court. This time, his motion asserted that his recidivist sentence violated constitutional double jeopardy principles. Petitioners' motion was denied on March 16, 2006.
E. Federal Habeas Corpus Barkers' Contentions
In the instant case, petitioner alleges that the state violated the double jeopardy clause of the United States Constitution when it imposed a recidivist life sentence after petitioner had already begun to serve a previously imposed aggregate sentence of 15 years imprisonment. In other words, petitioner asserts that his recidivist life sentence is unconstitutional because the trial court had already imposed a sentence and he had already satisfied part of that sentence prior to being convicted under the recidivist information. Accordingly, petitioner asserts that the life sentence is void and must be set aside.
The Respondent's Response
In its response to the petition, the respondent asserts that "[i]n West Virginia, when applying the recidivist life sentence, the circuit court does not impose a separate sentence for the last felony conviction, but upon the jury's conviction in the recidivist proceeding the court imposes a life sentence on the last felony conviction." Response at 10 (citing State v. Wyne, 194 W.Va. 315, 460, 460 S.E.2d 450 (1995). Moreover, the respondent asserts that in Neidinger v. United States, 647 F.2d 408, 409 (4th Cir. 1981), "the Fourth Circuit held that the sentence of imprisonment of any person convicted of an offense `shall commence to run from the date on which such person is received at the penitentiary, reformatory or jail for service of such sentence.'" Response at 10. Therefore, when petitioner was received at the state penitentiary and began serving his original sentence, jeopardy attached. Id. Accordingly, the respondent concedes that petitioner's subsequent recidivist life sentence is a violation of the double jeopardy clause.
Additionally, the respondent notes that the West Virginia Supreme Court has recognized that "cases in which the penalty is increased are treated as subjecting the accused to double jeopardy and therefore the second sentence is void." Response at 10-11 (citing State ex. rel. Williams v. Riffe, 127 W.Va. 573, 34 S.E.2d 21 (1945)). Moreover, the respondent asserts that this principle is "so embodied in our Nation's judicial system, [that] the [Supreme] Court in Benz referenced Wharton on the subject.
As a general practice, the sentence when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment already partly suffered be not increased."Id. at 11 (citing United States v. Benz, 282 U.S. 304, 307 (1931)).
Accordingly, the respondent asserts that petitioner has demonstrated that his confinement is imposed in contravention of the rights and protections guaranteed under the Constitution, laws or treatises of the United States and concedes that petitioner's life sentence violated double jeopardy standards. Thus, the respondent concurs with petitioners' request that the court vacate his life sentence and reinstate petitioners' original sentence.
F. Recommendation
The undersigned is of the opinion that despite the concession of the respondent, the petition should be denied.
III. Standard of Review
Title 28 U.S.C. § 2254 requires a district court to entertain a petition for habeas corpus relief from a prisoner in State custody, but "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). However, the federal court may not grant habeas relief 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 to the State court proceeding.28 U.S.C. § 2254(d)(1) and (2); see also Williams v. Taylor, 529 U.S. 362 (2000).
The Fourth Circuit Court of Appeals has determined that "the phrase `adjudication on the merits' in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in a summary fashion."Thomas v. Taylor, 170 F.3d 466, 475 (4th Cir. 1999). When a state court summarily rejects a claim and does not set forth its reasoning, the federal court independently reviews the record and clearly established Supreme Court law. Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), cert. denied, 534 U.S. 830 (2001) (quotingBacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000)). However, the court must still "confine [its] review to whether the court's determination `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.'" Id. at 158.
A federal habeas court may grant relief under the "contrary to" clause "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. "If there is no directly controlling Supreme Court precedent for purposes of conducting the `contrary to' prong, [the court] must analyze whether the precedent is applied in an objectively reasonable manner." Quinn v. Haynes, 234 F. 3d 837, 844 (4th Cir. 2000) (citing Williams, 529 U.S. 362 (2000)). A federal court may grant a habeas writ under the "unreasonable application" clause, "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams at 413. "An unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410.
When a petitioner challenges the factual determination made by a state court, "federal habeas relief is available only if the state court's decision to deny post-conviction relief was `based on an unreasonable determination of the facts.' § 28 U.S.C. 2254(d)(2). In reviewing a state court's ruling on post-conviction relief, we are mindful that `a determination on a factual issue made by a State court shall be presumed correct,' and the burden is on the petitioner to rebut this presumption `by clear and convincing evidence.'" Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir. 2003).
IV. Analysis
The constitutional prohibition against double jeopardy is said to consist of three separate constitutional protections: (1) it protects against a second prosecution for the same offense after an acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1989).
In United States v. Benz, 282 U.S. 304 (1931), the Supreme Court of the United States noted that "[t]he general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be `in the breast of the court' making them, and subject to be amended, modified, or vacated by that court. Goddard v. Ordway, 101 U.S. 745, 752, 25 L.Ed. 1040. The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment not be augmented. In re Lange, 18 Wall. 163, 167-174, 21 L.Ed. 872; Bassett v. United States, 9 Wall. 38, 19 L.Ed. 548." Benz at 306-307. The Court went on to note that "[a]s a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered and may be amended at any time during such session, provided a punishment already partly suffered be not increased." Id. at 307 (citing Wharton, in Criminal Pl. and Pr. (9th Ed.) s 913).
In interpreting this language, courts for years held to the "general principle" that they were constitutionally barred from increasing a sentence once service of the sentence had begun.See United States v. DiFrancesco, 449 U.S. 117, 138 (1980). However, in DiFrancesco, supra, the Supreme Court disavowed courts of this general notion when it determined that the issue in Benz was whether the trial judge had the power to reduce a defendant's sentence after service of the sentence had begun, not whether or not a trial judge had the power to increase a sentence in such circumstances. DiFrancesco, 449 U.S. at 138 (emphasis added). Therefore, the Court found the language in Benz regarding an increase in sentence to be dicta and "not susceptible of general application." Id. at 138-139. (Emphasis added). The Court then went on to discuss whether increasing a sentence imposed under § 3575 constitutes multiple punishment in violation of the Double Jeopardy Clause. Specifically, the Court said:
In DiFrancesco, the Supreme Court considered the constitutionality of the government's right to appeal a sentence imposed on a "dangerous special offender" under the Organized Crime Control Act of 1970, 18 U.S.C. §§ 3575 and 3576.
Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence. . . . As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment. The punishment authorized by Congress under §§ 3575 and 3576 is clear and specific and, accordingly, does not violate the guarantee against multiple punishment expounded by Ex parte Lange.DiFrancesco, 449 U.S. at 139 (internal citations omitted). In other words, "the Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be."Id. at 137.
The Fourth Circuit, in interpreting DiFrancesco, has found that "in order to determine whether an increase in the sentence is essentially a multiple punishment for the same offense" in violation of the Double Jeopardy Clause, "the Court's inquiry should focus on whether the defendant had a legitimate expectation of finality as to the severity of his sentence."United States v. Bello, 767 F.2d 1065, 1070 (4th Cir. 1985). Stated otherwise, DiFrancesco stands for the proposition that the "pronouncement of a sentence does not possess the finality of a verdict of acquittal for double jeopardy purposes and the imposition of a particular sentence is not equivalent to a judgment of acquittal as to all greater sentences." United States v. Lundien, 769 F.2d 981, 985 (4th Cir. 1985). Thus, the Court must address whether each case falls within the specific context of the Supreme Court's decision in Ex parte Lange, supra. Id.
"In Lange, the defendant was sentenced to payment of a fine and imprisonment, when the statute involved permitted the punishments only in the alternative. After he had paid the fine in full and served five days of the prison term, the defendant was resentenced to serve in full the original term of imprisonment. The Court found the Double Jeopardy Clause violated, as the defendant `had fully suffered one of the alternative punishments to which the law alone subjected him, [s]o the power of the court to punish further was gone' and the re-sentencing constituted double punishment for the same offense." Lundien, 769 F.2d at 985. Therefore, in Lundien, the Fourth Circuit found no double jeopardy violation where the defendant had not fully suffered a lawful punishment for his crimes because he had served only five days of a ten year sentence before being resentenced. Id.
Additionally, the Fourth Circuit found that in light of the Supreme Court's decision in DiFrancesco, "it seems more likely that any constitutional source for protection of the defendant's interest in the finality of his sentence must be found in the fifth amendment's guarantee of due process." Lundien, 769 F.2d at 986. As to a defendant's due process rights, the Fourth Circuit stated that "[e]ven casual observation suggests that there must be some limitation on the power of the trial court to enhance punishment by resentencing after the defendant's commencement of service." Id. In recognizing that grossly unfair sentences could result from no limitation on the trial court's power to enhance a sentence after it has commenced, the Fourth Circuit stated that "such undesirable results can, and should, be prevented by balancing the competing factors in each case under the Due Process Clause of the fifth amendment. The now well-developed principle of constitutional due process fairness should apply to the sentencing phase of a criminal trial as well as to the trial itself." Id.
Thus, the Court found that "it is beyond doubt that a sentence enhanced, whether before or after commencement of service, because of the vindictiveness or other plainly improper motive of the trial court would be fundamentally unfair and would deny the defendant due process." Lundien, 769 F.2d at 987 (citing North Carolina v. Pearce, supra). Moreover, due process may be also denied "when a sentence is enhanced after the defendant has served so much of his sentence that his expectations are crystallized and it would be fundamentally unfair to defeat them." Id. With these principles in mind, I will now turn to the facts of this case.
Petitioner was found guilty by a jury in the October 1995 term. That term was subsequently extended through January 1996. After his conviction, but before his sentence, the state filed a recidivist information alleging that petitioner had twice before been convicted of felony crimes in the United States. On January 12, 1996, petitioner appeared before the trial court for sentencing and to discuss the recidivist information filed by the State. Petitioner appeared that day and stood silent on the recidivist information. Thus, the Court sentenced petitioner on the grand larceny and conspiracy convictions and set a date for petitioner's recidivist trial.
Petitioners' recidivist trial took place in the next term of court on February 27, 1996. The jury found petitioner guilty of twice being convicted of felony offenses. On April 2, 1996, petitioner appeared for sentencing on his recidivist trial where he received a life sentence. An amended commitment order issued July 11, 1996.
The West Virginia recidivist statute states in pertinent part that when a person has been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, that person shall be sentenced to be confined in the state correctional facility for life. See W.Va. Code § 61-11-18(c). The procedure for sentencing a person under the recidivist statute is as follows:
It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence or convictions and sentences, as the case may be, and alleging the identity of the prisoner with the person named in each, shall require the prisoner to say whether he is the same person or not. If he says he is not, or remains silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to inquire whether the prisoner is the same person mentioned in the several records. If the jury finds that he is not the same person, he shall be sentenced upon the charge of which he was convicted as provided by law; but if they find that he is the same, or after being duly cautioned if he acknowledged in open court that he is the same person, the court shall sentence him to such further confinement as is prescribed by section eighteen of this article on a second or third conviction as the case may be.
Similar to DiFrancesco, the state legislature has specifically provided that defendants like petitioner are subject to a recidivist sentence if certain conditions are met. Even where, as here, the petitioner received his life sentence after service of his sentence commenced. Also, like the defendant inLundien, petitioner in this case had not "fully suffered a lawful punishment for his crimes," having served less than two months of an aggregate 15 year sentence at the time he was resentenced. Moreover, at the time petitioner was initially sentenced, he had no expectation in the finality of his sentence. He clearly knew that he was subject to a recidivist sentence as per the recidivist information filed by the State on January 9, 1996, the discussion of that information at his January 12, 1996 sentencing, and the setting of a recidivist trial. Thus, petitioners' double jeopardy claim has no merit.
In addition, petitioner is not entitled to relief under the due process clause. The state court followed the appropriate procedures for imposing a recidivist sentence under West Virginia state law. The only discrepancy being that petitioner did not receive his recidivist trial during the term in which he was convicted and sentenced. However, as noted by the state court in denying petitioners' Motion to Correct Sentence, this Court has previously determined that holding a recidivist trial in the next term of court is not a due process violation. See Respondents' Answer, Ex. 1 at 2, (citing Patterson v. Boles, 276 F.Supp. 735 (N.D.W.V. 1967)). Therefore, I do not believe that the sentencing of petitioner was "either fundamentally unfair or unfair because [he] had gained an indefeasible expectation of finality in his sentence." Lundien 769 F.2d at 987. The trial court followed the proper procedures under West Virginia law and the short time in which petitioner actually served before his recidivist sentence was imposed was not enough to crystallize petitioners' expectations as to the final length of his sentence so that it would be unfair to defeat those expectations by allowing the recidivist sentence to stand.
V. Recommendation
For the foregoing reasons, I find that the state court's denial of petitioners' double jeopardy claim is not contrary to or an unreasonable application of clearly established Federal law or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Therefore, despite the respondents concession that petitioner is entitled to the relief sought, I recommend that the petitioner's petition for writ of habeas corpus be DENIED.
Within ten (10) days after being served with a copy of this recommendation, any party may file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objections. A copy of any objections should also be submitted to the Honorable W. Craig Broadwater, United States District Judge. Failure to timely file objections to this recommendation will result in waiver of the right to appeal from a judgment of this Court based upon such recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk is directed to mail a copy of this Report and Recommendation to the pro se petitioner and any counsel of record.