Opinion
CIVIL ACTION NO. 01-2211 SECTION "H"
October 10, 2001
ORDER AND REASONS
Harold Neal's pro se petition for post-conviction relief pursuant to 28 U.S.C. § 2254 was considered on memoranda. Upon review of the entire record, including the state court record, it is clear that a federal evidentiary hearing is not necessary and the petition should be dismissed with prejudice as procedurally barred.
On June 24, 1999 following a jury trial, petitioner was convicted of one count of felony theft of goods valued at more than $100.00, but less than $500.00 (La. Rev. Stat. 14:67.10) and sentenced to two years at hard labor. Thereafter, the State filed a bill of information charging petitioner as a fourth felony offender pursuant to L.S.A.-R.S. 15:529.1, citing three predicate convictions resulting from guilty pleas, to wit: (1) an April 8, 1987 conviction on two counts of attempted manslaughter (La.Rev.Stat. 14:27:31); (2) a June 22, 1990 aggravated battery conviction (La. Rev.Stat. 14:34); and (3) a December 16, 1991 simple burglary conviction (La.Rev.Stat. 14:62).
The state trial court denied petitioner's Motion to Reconsider his two-year felony theft sentence and petitioner appealed that sentence and conviction. After a contradictory hearing, the state trial court adjudicated Neal a fourth felony offender, vacated his two-year theft sentence, and resentenced him to life imprisonment pursuant to Louisiana's Habitual Offender Law ( La.Rev.Stat. 15:529.1).
Petitioner filed a Motion to Reconsider his life sentence, which was heard on August 17, 1999. The state trial judge vacated petitioner's life sentence finding it "excessive" on the basis of the particular facts of his case and resentenced him to a term of 2O years at hard labor, again pursuant to La.Rev.Stat. 15:529.1. Both the state and defense counsel objected to the trial court's ruling. The State argued that the state trial court erred as a matter of law in reducing Neal's fourth felony offender sentence below the statutorily mandated minimum life sentence and noticed its intention to seek supervisory writs. Petitioner objected on grounds that even his reduced twenty-year multiple offender sentence was "excessive" considering the particular facts. On September 2, 1999, the state filed a Motion to Reconsider Habitual Offender Sentence and argued that the reduced sentence did not conform with the applicable enhancement provisions of Louisiana's Habitual Offender Law. The state trial judge denied that motion. Both petitioner and the state appealed the trial court's rulings.
On appeal petitioner claimed that the trial court erred in failing to file written findings regarding his August 13, 1999 fourth offender adjudication and that the evidence was insufficient. More specifically, Neal argued that his fourth offender conviction was illegal and unconstitutional because it was predicated on three earlier felony convictions which were the result of "invalid" guilty pleas. The state countered petitioner's assignments of error, contending that sufficient evidence supported Neal's fourth felony offender conviction, sufficient evidence demonstrated that Neal's three predicate pleas were knowing and voluntary, and that the state satisfied its burden under State v. Shelton, 621 So.2d 769, 779 (La. 1993). The state's appeal assigned trial court error in reducing Neal's fourth offender sentence below the statutorily mandated minimum life sentence.
The state court of appeal affirmed petitioner's fourth offender conviction and his reduced sentence. The appellate court concluded that the state satisfied its initial two-prong burden of proof under Shelton, supra, 621 So.2d 769, 779 (La. 1993) and explained that: (1) the state adduced sufficient evidence establishing the existence of the predicate guilty pleas; and (2) it demonstrated that the defendant was represented by counsel during predicate plea proceedings. The appellate court further held that petitioner failed to carry his burden of producing some affirmative evidence of either an infringement of his rights or some procedural irregularity in any of the three predicate guilty plea proceedings. State v. Neal, 00-KA-41, 762 So.2d 281, 284 (La.App. 5th Cir. 5/30/00). Petitioner did not apply for rehearing or for supervisory writs to the Louisiana Supreme Court.
On March 8, 2000 while his multiple offender adjudication and sentence were pending appeal, petitioner filed a Motion to Vacate or Correct Illegal Sentence, arguing that his fourth offender sentence was both unconstitutional and illegal and raising for the first time the "cleansing period" issue (whether the state trial court erroneously applied a ten year "cleansing period" to his predicate convictions). Petitioner contended that the "cleansing period" in effect the time of his predicate pleas was five years, that the five year "cleansing period" had run with respect to his predicate convictions, and thus the state trial court unconstitutionally and illegally enhanced his sentence. More to the point, petitioner claimed that application of the extended ten year "cleansing period" to his predicate convictions pursuant to L.S.A.-R.S. 15:529.1(C) as amended effective 1995, constituted an ex post facto application of the law.
Petitioner filed a writ of mandamus in the Louisiana Fifth Circuit Court of Appeal, alleging that the trial court failed to rule on his Motion to Correct Illegal Sentence. The court of appeal ordered the state district judge to act on petitioner's motion. On August 1, 2000, the state district court denied petitioner's motion for the reason that it was divested of jurisdiction pending direct appeal of petitioner s conviction and sentence. Petitioner filed an application for supervisory writs, which the court of appeal denied, also holding that the trial court lacked jurisdiction over the motion.
Neal filed an application for supervisory writs with the Louisiana Supreme Court, which the court denied, citing state procedural grounds. State ex rel. Neal v. State, 00-KH-2754, 2001 WL 708728 (La. 6/15/01). Petitioner then filed the instant petition.
In this court, petitioner contends that: (1) the state trial court incorrectly used invalid predicate convictions to enhance his sentence; (2) the five-year "cleansing period" applicable to his predicate convictions had run; (3) the state trial court illegally and unconstitutionally imposed an excessive fourth felony offender sentence for a crime which was a "misdemeanor" theft; and (4) the state illegally imposed a unconstitutional fourth offender sentence in contravention of the Eighth Amendment, Due Process and the Ex Post Facto Clause.
The state concedes that petitioner exhausted his available state court remedies and timely filed his § 2254 petition. However, the state contends that federal review of his habeas claims is procedurally barred. For the following reasons, I agree.
AEDPA STANDARDS
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which became effective April 24, 1996. The United States Fifth Circuit Court of Appeals succinctly summarized the AEDPA's standards governing the issuance of federal habeas relief in state court cases, as follows:
Under the AEDPA, we may not issue a writ of habeas corpus with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the State court's highest adjudication of the claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . .; or 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). As the Supreme Court has recently explained, a decision is contrary to clearly established Federal 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed. 2d 389 (2000). We may issue a writ based on the State Court's unreasonable application of Federal law only "if the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. We presume state court factual findings to be correct and will defer to these findings "unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)).Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000), cert. denied, 121 S.Ct. 1610, 149 L.Ed.2d 475 (2001).
PROCEDURAL DEFAULT
In Coleman v. Thompson, 498 U.S. 937, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990), the United States Supreme Court granted certiorari to resolve several issues concerning the relationship between state procedural default and federal habeas review. The Coleman Court explained:
This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground which is independent of the federal question and adequate to support the judgment. This rule applies whether the state law ground is procedural or substantive. In the context of direct review of a state court judgment, the independent and adequate state law ground is jurisdictional.
* * * In the habeas context, the application of the independent and adequate state law ground doctrine is grounded in concerns of comity and federalism. Without this rule, a federal district court would be able to do what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by adequate and independent state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.501 U.S. 722, 735, 111 S.Ct. 2546, 2553-2554, 115 L.Ed. 640 (1991), reh'g denied, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991) (citations omitted).
Generally, a federal court will not review a question of federal law decided by a state court if that decision rests on a state ground that is both independent of the federal question and adequate to support the judgment. Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995), cert. denied, 504 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995)( citing Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989)). Procedural default does not bar federal review of a federal claim raised in a habeas petition unless the last state court rendering a judgment in the case has clearly and expressly indicated that its judgment is independent of federal law and rests on a state procedural bar. Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043.
The Louisiana Supreme Court refused to consider the merits of Neal's claims, specifically articulating state procedural grounds, Louisiana Code of Criminal Procedure article 930.3 and Melinie v. State, 665 So.2d 1172 (La. 1996), reh'g denied, 667 So.2d 1043 (La. 1996). Article 930.3 provides:
If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations of the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
In Melinie, supra, the Louisiana Supreme Court ruled that article 930.3 provides no basis for review of claims of excessiveness or other sentencing errors post-conviction. These claims, which could be raised on direct appeal, were not grounds for post-conviction relief 665 So.2d 1172. In State v. Hebreard, 708 So.2d 1291 (La.App. 4th Cir. 1998), the Louisiana Fourth Circuit Court of Appeal interpreting Melinie held that claims challenging multiple offender adjudications are not appropriate grounds for consideration on post-conviction review under Article 930.3. Id., at 1292.
"[A] federal court may not consider a state prisoner's federal habeas claim when the state based its rejection of that claim on an adequate and independent state ground." Martin v. Maxey, 98 F.3d 844, 846 (5th Cir. 1996) (citing Coleman, Ill S.Ct. at 2565). The "independent" requirement is met if the last state court rendering ajudgment in the case "clearly and expressly" indicates that its judgment is independent of federal law and rests on a state procedural bar. Amos, 61 F.3d at 338. The Louisiana Supreme Court's holding denying Neal's application for supervisory writs satisfies the "independent" requirement.
A procedural bar is "adequate" if it is applied "strictly or regularly" to the "vast majority of similar claims." Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), cert. denied, 523 U.S. 1125, 118 S.Ct. 1811, 140 L.Ed.2d 949 (1998); Amos, 61 F.3d at 339. A state procedural rule enjoys a presumption of adequacy when the state court expressly relies upon it in deciding not to review a claim for collateral relief. Glover, 128 F.3d at 902. The burden is on petitioner to establish that the state's procedural bar rule was not strictly and regularly followed at the time of his direct appeal. Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996) (citing Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)).
A state fails to strictly and regularly apply a procedural rule only when the state "clearly and unequivocally excuse[s] the procedural default. Id., (citing Amos, 61 F.3d at 342). Moreover, the state must fail to apply the rule to claims "identical or similar" to the petitioner's claim. Amos, 61 F.3d at 341. De minimis exceptions will not preclude the state from asserting the procedural default doctrine; "an occasional act of grace by a state court in excusing or disregarding the state procedural bar rule does not render the rule inadequate." Martin v. Maxey, 98 F.3d at 848 (citing Amos, 61 F.3d at 342.
Review of Louisiana jurisprudence since the decision of Melinie. supra, establishes that the Louisiana courts regularly invoked the statutory procedural bar together with the Melinie decision to bar review of post-conviction challenges to multiple offender adjudications.
Because there are adequate and independent state grounds to support the ruling of the Louisiana Supreme Court, petitioner's federal writ of habeas is barred unless he can show cause for the procedural default and actual prejudice. See Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991). A petitioner may overcome a procedural default, whether the default was purposeful or inadvertent, if he can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 111 S.Ct. at 2564. To demonstrate cause petitioner must prove that some condition external to the defense impeded his efforts to comply with the procedural rules, that the factual or legal basis of a claim was not available to counsel, or that governmental interference rendered procedural compliance impractical. Murray v. Carriere, 477 U.S. 478, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Petitioner has made no such showing.
Petitioner submits no evidence which would support a finding that "actual prejudice" has resulted or that a failure to review his claims would result in a "fundamental miscarriage of justice." A "fundamental miscarriage of justice" exists in extraordinary circumstances where the constitutional violation has possibly resulted in the conviction of one who is actually innocent. Murray, 106 S.Ct. at 2645.
The main thrust of petitioner's challenge involves the multiple offender adjudication, which resulted in a more onerous sentence. Specifically, petitioner claims that his rights under the Louisiana and United States Constitutions were violated because application of the ten-year "cleansing period" under the multiple offender statute constituted an ex post facto application o flaw, his multiple offender conviction is illegal and unconstitutional because the underlying theft is a "misdemeanor" offense, and the predicate guilty pleas were invalid.
Neal suggests that he was denied due process by the state courts in his collateral post conviction proceedings when they declined to rule on his motion to vacate as a motion to correct illegal sentence pursuant to Louisiana Code of Criminal Procedure Article 882. "[I]nfirmities in state habeas proceedings do not constitute grounds for relief in federal court." Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825 (1999). Federal courts generally decline to review a state court's interpretation of its own law in a federal habeas proceeding. See Mills v. Collins, 924 F.2d 89, 92 (5th Cir. 1991)( citing Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir. 1985)); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).
Petitioner offers no basis to support a finding of cause for the procedural default of his sentencing claims. On that basis alone, his claim is barred from review. The petitioner has also failed to establish prejudice or that a "fundamental miscarriage of justice" would occur should the court refuse to entertain his claim. As discussed below, petitioner's fourth offender conviction and sentence are proper under state law, and thus petitioner has failed to meet his burden of establishing prejudice. Accordingly, federal habeas review is also foreclosed on that ground.
MULTIPLE OFFENDER STATUS
On the merits, Neal's claims falter as well. Neal contends that the state trial judge's use of the ten year "cleansing period" in effect at the time of his theft offense and conviction violated the prohibition against ex post facto application of the law. Petitioner claims that the five year "cleansing period" in effect at the time of his three predicate convictions governs the disposition of his multiple offender adjudication and that the five year period had expired when he committed his fourth felony offense (theft). Essentially, petitioner argues that application of the lengthier ten year cleansing period to his earlier predicate convictions is unconstitutional.
Both Article 1, § 10 of the United States Constitution and Article 1, § 23 of the Louisiana Constitution prohibit ex post facto application of criminal laws by the State. The United States Supreme Court recently commented on the federal Constitution's Ex Post Facto Clause in Rogers v. Tennessee, 121 S.Ct. 1693, 1697, 149 L.Ed.2d (5/14/2001) stating: "The Clause provides simply that 'no State shall . . . pass any . . . ex post facto Law.'" Id. Quoting Justice Chase, the Supreme Court explained the four types of laws to which the Clause extends:
"1st". Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and [allows] less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender."Id., (citing Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)( seriatim opinion of Chase, J.)). The Ex Post Facto Clause places a "'limitation upon the powers of Legislature'", however, "limitations on ex post facto judicial decision making are inherent in the notion of due process." Id., (citation omitted).
Two critical elements must be present for a criminal or penal law to be ex post facto: the law must apply to events occurring before its enactment; and it must disadvantage the defendant affected by it. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 964, 67 L.Ed. 17 (1981). The Ex Post Facto Clause's prohibition is triggered only by statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for the crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time the act was committed. See Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990).
Petitioner's contentions that the five year "cleansing period" had run with respect to his predicate convictions and that application of the 1995 ten year "cleansing period" to his earlier convictions was prohibited by the Ex Post Facto Clause are without merit. The applicable enhancement statute is the one existing at the time of the commission of the offense for which the sentence is enhanced. L.S.A.-R.S. 15:529.1(C) was amended to increase the "cleansing period" to ten years effective 1995. See La. Acts 1995, No. 839, § 1. The ten year cleansing period was thus in effect when Neal committed the underlying theft offense on February 15, 1999.
Cleansing periods are . . . purely statutory rules constituting self-imposed restraints on the state's plenary power to define and punish crimes. Due process does not require them and several Louisiana repeat offender statutes do not have them. Enlarging or even eliminating a statutory cleansing period does not require an individual to defend his past acts charged against him, for which he has already been convicted and punished, but to measure his future conduct in light of the legislature's changing perception of significant social problems.
State v. Rolen, 662 So.2d 446 (La. 1995); see also State v. Ignot, 701 So.2d 1001, 1010 (La.App. 2nd Cir. 1997) (citing Rolen, supra, and explaining that Louisiana's Habitual Offender Law, like the DWI law, is a caution to past felony offenders that future felony offenses will carry harsher punishment); see also State v. Brinson, 699 So.2d 510 (La.App. 4th Cir.), writ denied, 717 So.2d 1137 (La. 1998) (holding that the defendant could not rely on the former five year cleansing period which was applicable at the time of his first crime and that there was no violation of the Ex Post Facto Clause).
Similarly, the Louisiana Supreme Court in State v. Walker explained that:
416 So.2d 534 (La. 1982).
This [multiple offender] proceeding does not charge a new crime but is merely a method of increasing punishment of second and subsequent offenders. The enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers of the trial judge after conviction and has no functional relationship to the innocence or guilt of the substantive crime. In other words, it is clear that the sentence in such cases is for the new crime only; it is simply more severe if the defendant is a habitual offender.
416 So.2d at 536 (citations omitted and emphasis in original). For purposes of analyzing the ex post facto implications of repeat offender statutes, the relevant offense is the current or latest crime, not the predicate offenses.
Petitioner committed the underlying felony offense on November 15, 1999, after the effective date of the Act amending L.S.A.-R.S. 15:529.1(C) and extending the "cleansing period" to ten years. Because the statute as amended does not increase the punishment for an offense petitioner committed innocent when done, or before 1995, punish as a crime an act previously committed, which was deprive petitioner of a defense available according to law at the time the act was committed, there was no ex post facto application of law in his case.
The record in this case amply demonstrates that petitioner did not have ten felony free years before committing the underlying 1999 theft offense. As it relates to "cleansing period," La.Rev.Stat. 15:529.1(C) as amended effective 1995 provides in pertinent part:
This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudications of delinquency, at the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in any said ten year period.Id. (emphasis added). The statute specifically exempts from the ten-year computation "any period of servitude by a person in a penal institution, within or without the state." L.S.A.-R.S. 15:529. 1(C). Where less than the ten year time limitation has elapsed between convictions, it is not necessary for the State to prove discharge dates of the predicates. State v. Chisolm, 771 So.2d 205, 213 (La.App. 4th Cir. 2000) (citing State ex rel. Clark v. Marullo, 352 So.2d 223 (La. 1977)).
The dates of petitioner's four felony convictions were 1987, 1990, 1991 and 1999. The state record reflects that the State more than sufficiently demonstrated that the applicable "cleansing period" had not run between convictions.
Petitioner's contention that his multiple offender sentence was illegal, unconstitutional, and in violation of due process because his fourth offense (theft of things valued at $160.00) is no longer a felony offense under Louisiana law is also without merit. Six months after petitioner committed the theft of goods valued between $100.00 and $500.00 (cigarettes valued at $160.00), Louisiana's theft statute was amended to provide that a first offense of theft of goods valued at less than $300.00 was a misdemeanor offense. La.Rev.Stat. 14:67 as amended by Acts 1999, No. 1251, effective August 15, 1999, provides in part that:
B(2) When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both . . . .
The thrust of petitioner's argument on the merits is that a misdemeanor offense is the linchpin of his fourth felony offender adjudication and sentence.
Petitioner committed the underlying offense (felony theft) on February 15, 1999, was convicted on June 24, 1999, and was adjudicated a multiple offender and initially sentenced as a fourth offender on August 13, 1999. At all pertinent times, the underlying offense was a felony under applicable Louisiana law.
Petitioner also challenges the validity of his three predicate convictions; however, they are "conclusively valid." See Lackawanna County District Attorney v. Coss, 531 U.S. 923, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (April 25, 2001). In Lackawanna, the Supreme Court explained that:
[O]nce 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 unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels v. United States, 532 U.S. ____, 121 S.Ct. 1578, 1583 (2001). If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.
As in Daniels, we recognize an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). "The special status of Gideon claims in this context is well established in our case law.Lackawanna, 121 S.Ct. at 1574 (citations omitted).
At no time has there been a Gideon claim in this case. The record amply demonstrates that petitioner was represented by counsel during the course of all three predicate pleas. See State v. Neal, 762 So.2d 281, 284 (La.App. 5th Cir. 2000) (holding that the State met its burden under Shelton). The state court's factual finding in this regard must be accorded the presumption of correctness. It was not "'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" See Knox, 224 F.3d 470, 476 (5th Cir. 2000) (citation omitted). Indeed, Neal does not allege a failure to appoint counsel.
Finally, petitioner's claim of excessive sentence in violation of the Eighth Amendment is meritless. Two of Neal's three predicate convictions are crimes of violence as defined by L.S.A.-R.S. 14:2 (13). In the absence of clear and convincing evidence warranting a downward departure, the statutorily mandated sentence was life imprisonment without the benefit of probation parole or suspension of sentence. L.S.A.-R.S. 15:529.1(A)(1)(c)(ii). In no event was petitioner's sentencing exposure as a fourth offender less than twenty years. L.S.A.-R.S. 15:529.1(A)(1)(c)(i). On reconsideration, petitioner was resentenced to twenty-years, the minimum sentence. The Louisiana Fifth Circuit affirmed petitioner's reduced sentence on appeal. In so doing, the court of appeal observed that "[t]he trial court . . . decided, . . ., that given the circumstances of this case, a light sentence was not warranted, and that the lowest reasonable sentence would be twenty years at hard labor, without benefit of probation, parole or suspension of sentence." Neal, 762 So.2d at 286.
Where the state court has adjudicated a claim on the merits, the federal habeas court is concerned only with issues of whether the state courts identified the correct legal principle and reasonably applied the facts. Knox, 224 F.3d at 475. Wide discretion is accorded a state trial court's sentencing decision, and claims arising out of the decision are not generally constitutionally cognizable. Relief may be obtained only where the petitioner is able to show that the sentence imposed exceeds or is outside of the statutory limits, or is wholly unauthorized by law. Haynes v. Butler, 825 F.2d at 923-24.
Neal's twenty year fourth offender sentence for theft of goods pursuant to La. R.S. 15:529.1 was within the applicable sentencing range dictated by L.S.A.-R.S. 15:529.1(A)(1)(c)(i) (statutorily mandated minimum sentence of 20 years with a maximum of life imprisonment). Moreover, his twenty year sentence imposed on reconsideration constituted a downward departure from the applicable sentencing guidelines dictated by L.S.A.-R.S. 15:529.1(A)(1)(c)(ii), which under the particular circumstances of his case called for no less than life imprisonment.
Where, as here, the sentence is well within the statutory limits, "the petitioner must show that the sentencing decision was wholly devoid of discretion" or amounted to "arbitrary and capricious abuse of discretion," or that "an error of law resulted in the improper exercise of the sentencer's discretion." Haynes, 825 F.2d at 924. Petitioner has made no such showing in this case.
A challenge to the proportionality of a sentence requires the court to make a threshold comparison between the gravity of the offense and the severity of the sentence. Only if the sentence is grossly disproportionate to the offense would the court consider sentences for similar crimes in the same jurisdiction and sentences for the crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).
To determine whether a sentence is "grossly disproportionate," the court looks to the benchmark case, Rummel v. Estelle. See United States v. Gonzales, 121 F.3d 928, 943 (5th Cir. 1997), cert. denied, 522 U.S. 1063, 118 S.Ct. 726 139 L.Ed.2d 664 (1998). In Rummel, the United States Supreme Court found that a life sentence for obtaining $120.75 by false pretenses on a third conviction with prior felony convictions for fraud and forgery was not grossly disproportionate to the offense. Rummel, 100 S.Ct. at 1139-40. Neal's violations were far more serious. He was a fourth offender with two of three predicate convictions being crimes of violence, and the underlying theft involving goods valued at $160.00. The decision of the state trial judge and Louisiana Fifth Circuit Court of Appeal is not contrary to clearly established federal law, nor an unreasonable application of the law to the facts of the case.
445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
Accordingly, and for all of the above and forgoing reasons,
IT IS ORDERED that petitioner's application for federal habeas corpus relief is DENIED and his claims are DISMISSED WITH PREJUDICE