Opinion
CIVIL ACTION No. 02-3234-KHV
June 16, 2003.
MEMORANDUM AND ORDER
Petitioner Gregory D. Lessley, an inmate at Lansing Correctional Facility in Lansing, Kansas, has filed a petition for writ of habeas corpus. Petitioner was convicted of first degree murder and aggravated assault in Kansas state court and seeks a writ pursuant to 28 U.S.C. § 2254. This matter comes before the Court on petitioner's Petition for Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 By A Person In State Custody (Doc. #1) filed August 1, 2002. For reasons stated below, the Court denies petitioner's writ.
Factual Background
Petitioner's petition relies entirely on a question of law. The relevant facts of the case are summarized as follows:
On January 6, 1999, petitioner and his ex-girlfriend, Lisa Sears, engaged in a public argument outside her apartment complex in Wichita, Kansas. Sears flagged down the car of two neighbors and asked them to not drive away. Petitioner chased off the neighbors by brandishing a gun and instructing them to keep driving. Petitioner then shot Sears five times in the stomach. Petitioner ran from the scene but later returned and confessed to police. Sears died from multiple gunshot wounds to her abdomen.
For a detailed accounting of the facts, see the Kansas Supreme Court's factual statement in petitioner's direct appeal. State v. Lessley, 26 P.3d 620, 271 Kan. 780 (2001).
Procedural History
On September 22, 1999, a jury convicted petitioner of one count of premeditated first-degree murder and one count of aggravated assault. Under Kansas law, first-degree murder carries a maximum penalty of life in prison. K.S.A. §§ 21-3401 and 21-4706(c). An inmate convicted of first-degree murder is eligible for parole after 25 years, unless he is sentenced to "Hard 40." K.S.A. § 22-3717(b)(1). The Hard 40 sentencing scheme is contained in K.S.A. § 21-4635, which provides that
if a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years. * * *
In order to make such determination, the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances . . . and any mitigating circumstances. * * *
If the court finds that one or more of the aggravating circumstances . . . exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances . . . the defendant shall be sentenced pursuant to K.S.A. 21-4638 and amendments thereto.
K.S.A. § 21-4638 also provides:
When it is provided by law that a person shall be sentenced pursuant to this section, such person shall be sentenced to imprisonment for life and shall not be eligible for probation or suspension, modification or reduction of sentence. Except as otherwise provided, in addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving 40 years' imprisonment, and such 40 years' imprisonment shall not be reduced by the application of good time credits.
On October 29, 1999, the District Court of Sedgwick County conducted the required hearing and sentenced petitioner to life without parole for 40 years on the murder charge. In imposing this sentence, the trial judge found that petitioner had committed the murder "in an especially heinous, atrocious or cruel manner, and that the aggravating circumstance was not outweighed by mitigating circumstances." State v. Lessley, 26 P.3d at 630, 271 Kan. 780 (citing K.S.A. §§ 21-4635, 21-4636(f) and 21-4638). The trial judge based this finding on the fact that Sears had suffered mental anguish when petitioner brandished his gun and shot her five times at close range as she slowly bled to death. Id. at 633, 271 Kan. 780. Petitioner appealed to the Kansas Supreme Court, arguing that his sentence was unlawful. Specifically, petitioner argued that
It also sentenced petitioner to 13 months for aggravated assault.
[t]he Kansas "Hard 40" sentencing scheme is unconstitutional because it fails to provide criminal defendants the right to a jury determination beyond a reasonable doubt of all facts which may increase the maximum penalty for first-degree murder, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Sections Five and Ten of the Bill of Rights to the Kansas Constitution.
Brief Of Appellant at 38 in Lessley, 26 P.3d 620, 271 Kan. 780. The Kansas Supreme Court rejected this argument and affirmed petitioner's convictions and sentence. Lessley, 26 P.3d at 630, 271 Kan. at 795. In doing so, it followed State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), which held that a Hard 40 sentence does not violate the Due Process Clause of the United States Constitution, or compromise defendant's right to trial by jury under the Sixth Amendment or Section 5 of the Kansas Constitution Bill of Rights.
On August 1, 2002, petitioner filed his application for federal habeas relief pursuant to 28 U.S.C. § 2254. Petitioner alleges that under Ring v. Arizona, 536 U.S. 584 (2002) — which the United States Supreme Court decided nearly three years after the state court imposed his sentence and more than a year after the Kansas Supreme Court affirmed his conviction and sentence — the Hard 40 sentencing scheme is unconstitutional. Specifically, petitioner claims that the trial court illegally increased his ineligibility for parole from 25 years to 40 years when it — rather than the jury — determined that aggravating circumstances outweighed mitigating circumstances in his case.
Standard Of Review
Because petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2264, the Court's review of his claims is governed by the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under the AEDPA, a federal court may only consider claims which have been raised and decided on the merits in state court, unless the failure is
(1) the result of State action in violation of the Constitution or laws of the United States;
(2) the result of the Supreme Court's recognition of a new Federal right that is made retroactively applicable; or
(3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.28 U.S.C. § 2264.
If petitioner's claims have been raised and decided on the merits in state court, a federal court may only grant a writ when one of two circumstances is present: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2). The Court presumes state court factual findings to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1).
A state court decision is contrary to clearly established law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000).
A state court decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.
The Court's review of state court decisions is limited; the Supreme Court has admonished that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In a habeas action, a federal court may not review a state court decision for errors of state law. Id. (citations omitted).
Petitioner's Ground For Relief
Petitioner contends that under Ring v. Arizona, he is entitled to a jury determination that aggravating circumstances outweighed mitigating circumstances in his case, and that the trial court erred when it made this determination. The State asks the Court to deny petitioner's writ because (1) he has not established that Ring should be applied retroactively and (2) his argument is foreclosed by Harris v. United States, 536 U.S. 545 (2002).
Although petitioner alleges that the Kansas Hard 40 sentencing scheme violates the Sixth Amendment under Ring, he does not specifically allege that the United States Supreme Court recognized a new federal right in Ring. Further, petitioner raised his Sixth Amendment claim in the Kansas Supreme Court, which held that the Kansas Hard 40 sentencing scheme did not violate the Sixth Amendment. Petitioner does not allege that state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or that the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Further, petitioner does not specifically address whether Ring should be applied retroactively. Nonetheless, if the State argues that petitioner seeks the benefit of a new rule of constitutional law, the Court must apply Teague v. Lane, 489 U.S. 288 (1989), before considering the merits of the claim. Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
I. Whether Petitioner's Claim Is Precluded By Teague
In determining whether a rule applies retroactively, Teague requires a three-step analysis. United States v. Sanders, 247 F.3d 139, 146-47 (4th Cir. 2001). First, the Court must determine whether petitioner's case has become final. Second, the Court must determine whether petitioner asserts a new rule, and if so, whether the new rule is substantive or procedural. If the new rule is substantive, petitioner may seek its benefit. Bousley v. United States, 523 U.S. 614, 620 (1998). If petitioner asserts the benefit of a rule of procedure, the Court must determine whether the new rule fits within one of the narrow exceptions which permit retroactive application. Under Teague, a new rule of law is not applied retroactively to cases on collateral review unless (1) the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) the rule is a watershed constitutional rule of criminal procedure which requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty." Id. at 307, 311 (quoting Mackey v. United States, 401 U.S. 667 (1971)); see also Horn v. Banks, 536 U.S. 266 (2002). A new rule that qualifies under the "watershed" exception "must not only improve accuracy, but also `alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Teague, 489 U.S. at 311. These exceptions are limited because "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system." Id. at 309.
A case becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Ky., 479 U.S. 314, 321 n. 6 (1987). Petitioner's case became final when his time to petition the United States Supreme Court for a writ of certiorari expired and his conviction became final. See id.
In Ring, an Arizona jury convicted defendant of felony murder. By statute, Arizona authorized the death penalty for first-degree murder, but only if the judge conducted a separate sentencing hearing and made findings which determined that aggravating factors outweighed mitigating factors. 536 U.S. at 584. Without such a judicial determination, life in prison was the statutory maximum for a jury verdict of first-degree murder. After such a hearing, the trial judge sentenced defendant to death. On appeal, the issue was "whether [the requisite] aggravating factor may be found by the judge, as Arizona law specifie[d], or whether the Sixth Amendment's jury trial guarantee, made applicable to the States by the Fourteenth Amendment, require[d] that the aggravating factor determination be entrusted to the jury." Id. at 589. The United States Supreme Court held that the Arizona sentencing scheme violated the Sixth Amendment and that a jury must determine beyond a reasonable doubt whether aggravating factors warranted imposition of the death penalty. Id. at 609. In doing so, it reasoned that because aggravating factors enumerated in the Arizona law operated as "the functional equivalent of an element of a greater offense," the Sixth Amendment mandated that the existence of an aggravating factor necessary for the imposition of the death penalty be found by a jury rather than a sentencing judge. Id.
In Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002), the Tenth Circuit Court of Appeals held that Ring does not apply retroactively. Id. at 994; see also Arizona v. Towery, 64 P.2d 828, 830 (Ariz. 2003) (Ring does not apply retroactively to final cases). Specifically, the Tenth Circuit held that Ring was "simply an extension of Apprendi to the death penalty context," and that it did not establish a new rule of substantive criminal law. Cannon, 297 F.3d at 994 (citing United States v. Mora, 293 F.3d 1213 (10th Cir. 2002)). Because Ring does not apply retroactively, the Court must deny petitioner's petition.
II. Whether Petitioner's Argument Is Foreclosed By Harris
Even if Ring announced a new rule which applied retroactively, the Court would deny the petition. On June 24, 2002, the same day that it decided Ring, the Supreme Court decided Harris v. United States, 536 U.S. 545 (2002). In Harris, the Supreme Court held that "[w]ithin the range authorized by the jury's verdict . . . the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings." 536 U.S. at 567.
Here, as in Harris, the Kansas Hard 40 scheme allows a judge to determine the minimum sentence within a range authorized by the jury verdict. The jury found petitioner guilty of premeditated first-degree murder, which carries a maximum penalty of life imprisonment. In holding that petitioner was ineligible for parole for 40 years, the state trial judge did not increase the maximum sentence. Under Harris, the judge could impose the minimum, the maximum, or any other sentence within the statutory range, without seeking further authorization from the jury. Id. at 565. "The Fifth and Sixth Amendments ensure that the defendant `will never get more punishment than he bargained for when he did the crime,' but they do not promise that he will receive `anything less' than that." Id. at 566 (quoting Apprendi, 530 U.S. at 498). Therefore, even if the Court applied Ring retroactively, petitioner's writ would be denied.
IT IS THEREFORE ORDERED that Petition for Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 By A Person In State Custody (Doc. #1) filed August 1, 2002 be and hereby is DENIED.