# Joseph Bellavia v. Walter Fogg, Warden, Green Haven Correctional Facility, Stormville, New York > Court of Appeals for the Second Circuit · December 17, 1979 · 613 F.2d 369 URL: https://www.frixlaw.com/law-library/cases/9466411 ## Case - **Full name:** Joseph BELLAVIA, Petitioner-Appellant, v. Walter FOGG, Warden, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** December 17, 1979 - **Citations:** 613 F.2d 369; 1979 U.S. App. LEXIS 9600 - **Precedential status:** Published - **Opinion:** Concurring in part by Mansfield - **Judges:** Waterman, Mansfield, Timbers - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466411 ## How later opinions describe it (automated extraction) - holding that a “nearly identical” automobile presumption for drug possession was constitutional when applied to a case in which undercover officers recovered drugs from a vehicle occupied by defendant - holding that claims not raised on direct review were nonetheless exhausted because they had been raised in a coram nobis motion ## Opinion text MANSFIELD, Circuit Judge (concurring and dissenting): I concur in Judge Timbers’ carefully reasoned opinion insofar as it affirms the denial of appellant’s application to set aside his state court conviction. 1 However, I dissent *376 from its refusal to disturb the Draconian mandatory sentence imposed upon appellant pursuant to N.Y. Penal Law § 70.00 — a minimum of 15 years and a maximum of life imprisonment, for at most acting as the driver of an automobile in which cocaine owned and sold by others outside of his presence was located. In my view this mandatory sentence, as applied to the peripheral figure involved in this case, is so disproportionate to the offense committed by him as to shock the conscience and contravene the Eighth Amendment’s prohibition against the infliction of “cruel and unusual punishments.” In reaching this conclusion I accept the basic principles outlined recently by our esteemed colleague Judge Mulligan in his scholarly opinion in Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S. 1091 , 99 S.Ct. 874 , 59 L.Ed.2d 58 (1979). It is the role of the legislature, as the voice of the people, to determine in the first instance what anti-social conduct is to be punished and to prescribe the penalty to be imposed upon violators. The legislature’s statutory decision, reflecting as it does careful weighing of the societal interests involved, must not only be treated as presumptively valid but accorded the highest judicial respect. Ordinarily a mandatory penalty prescribed by the legislature should be enforced by the court regardless whether the court would have imposed a lesser punishment if it had been vested with the discretion to do so. A person challenging a legislative penalty therefore bears a heavy burden. In this case I believe that burden has been met. As we recognized in Carmona , the Founding Fathers did not vest our legislators with untrammeled discretion to prescribe punishment. Were that the case there would have been no point in adopting the Eighth Amendment. Moreover, that Amendment is not limited to such sanctions as torture and barbarity but prohibits the infliction of punishment that is grossly disproportionate to the gravity of the offense committed. Weems v. United States, 217 U.S. 349 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910); Rummel v. Estelle, 568 F.2d 1193 (5th Cir. 1978); Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded, 423 U.S. 993 , 96 S.Ct. 419 , 46 L.Ed.2d 367 (1975); Griffin v. Warden, 517 F.2d 756 (4th Cir.), cert. denied, 423 U.S. 990 , 96 S.Ct. 402 , 46 L.Ed.2d 308 (1975); Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938 , 94 S.Ct. 1454 , 39 L.Ed.2d 495 (1974); In re Lynch, 8 Cal.3d 410 , 105 Cal.Rptr. 217 , 503 P.2d 921 (1973); People v. Lorentzen, 387 Mich. 167 , 194 N.W.2d 827 (1972); People v. Broadie, 37 N.Y.2d 100 , 371 N.Y.S.2d 471 , 332 N.E.2d 338 , cert. denied, 423 U.S. 950 , 96 S.Ct. 372 , 46 L.Ed.2d 287 (1975); McDonald v. Commonwealth, 173 Mass. 322, 328 , 53 N.E. 874 (1899) aff'd., 180 U.S. 311 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901). In determining whether a penalty is grossly disproportionate to the offense committed the court must consider all relevant factors, including the seriousness of the offense charged, the severity of the sentence as compared with sentences prescribed for other criminal conduct within the jurisdiction and a comparison of the sentence with those authorized by other jurisdictions for the same crime. To these factors I would add the nature of the criminal conduct of the defendant whose sentence is challenged. A punishment that may be constitutional as applied to a major violator can be cruel and unusual as applied to a person who is a minor peripheral participant. In the latter case the punishment may well be grossly disproportionate to the gravity of the de *377 fendant’s conduct, whereas in the former it would not. The impermissibility of a sentence is not a matter to be determined in vacuo. In providing that “Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted’’ (emphasis added), the Amendment was directed not merely at the facial provisions of a legislative enactment, but at the application of a statutory mandate in practice. As Chief Judge Breitel, speaking for a unanimous court in People v. Broadie, 37 N.Y.2d 100, 113 , 371 N.Y.S.2d 471, 477-478 , 332 N.E.2d 338, 343-344 (1975) stated: “A second consideration, in assessing the proportionality of the punishment to the crime, is the character of the offender and the gravity of the threat he poses to society. None of the present cases involved what are often called ‘accidental’ offenders. True, not all of these defendants are ‘hardened’ criminals. In each case, however, defendant was convicted of at least ‘street’ sales of heroin or cocaine, or possession of a large amount of narcotics, two of the situations to which the statutes were directed. “The legislative presumption that he who possesses a large amount of narcotics is a seller would also seem reasonable. Defendant McNair, who was arrested in premises that were a veritable heroin ‘factory’ with over an ounce of the drug in her constructive possession, is hardly less culpable or dangerous than the appellants who made ‘street’ sales. “These eight defendants were actually or presumptively, then, at least narcotics sellers, not only under broad statutory definition, but in the narrower, literal sense as well. As sellers, they cannot disclaim their roles in the scourge of drug distribution. The Legislature might reasonably deem the threat posed to society by each of these defendants a grave one indeed.’’ The disproportionality of a punishment is a relative matter, to be resolved in the context of the circumstances of a given case. “We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, impirisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” (Robinson v. California, 370 U.S. 660, 667 , 82 S.Ct. 1417, 1421 , 8 L.Ed.2d 758 (1962)). Similarly, in Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 , 58 S.Ct. 59, 61 , 82 L.Ed. 43 (1937), the Court recognized that “for the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” See also Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976). Applying these principles here, the crime of selling any substantial amount of cocaine is unquestionably an extremely grave one, posing great social harm, breeding widespread criminal conduct of other types, including crimes of violence, and therefore warranting severe penalties. In Carmona we decided that possession of one ounce of cocaine, an A-II felony under New York’s 1973 drug laws, N.Y. Penal Law § 220.18 , punishable by a mandatory penalty of six years to life imprisonment pursuant to N.Y.Penal Law § 70.00, was comparable to first-degree murder, first-degree kidnapping, first-degree rape and first-degree arson and that this classification could not be characterized as arbitrary or irrational. We also concluded, over the vigorous dissent of Judge Oakes, that despite the lesser penalties imposed in New York for crimes such as second-degree arson, first-degree manslaughter, first-degree burglary and second-degree kidnapping and despite the fact that no other state prescribes a mandatory life sentence for sale of one ounce of cocaine, and only six states permit a court to con *378 sider imposition of a life sentence on a first felony offender, that the punishment imposed on the defendant in that case, a minimum of six years to a maximum of life imprisonment, did not constitute cruel and unusual punishment. Accepting all of the foregoing as settled law in this Circuit, I am satisfied that, while the sentencing statute is not unconstitutional on its face, Carmona, supra, the penalty of 15 years minimum to a maximum of life imprisonment is unconstitutional when applied to the conduct of the appellant in this case. Viewed in the light most favorable to the State, the evidence showed that in 1972 appellant, then 30 years old, was not the owner, seller or purchaser of the cocaine forming the basis of the prosecution. The negotiation for the purchase and sale of the cocaine had been conducted elsewhere between Michael Kelly and Joseph Veltri. Appellant played no part in it. Moreover, the cocaine, according to Kelly, was owned by his brother-in-law, who was not the appellant. When the participants in the negotiation had arrived at the terms of sale, Kelly and Veltri walked down the street to the automobile in which appellant was seated behind the steering wheel, whereupon Kelly directed appellant to obtain a brown paper bag package from the rear seat. Appellant got out of the car, opened the rear door, rummaged around, found the brown paper package, which had its top rolled down, and turned it over to Kelly. This was his sole participation in the crime. There was no evidence that appellant had ever dealt in narcotics or that he had performed any other role than that of an occupant of the automobile from which the narcotics owned and sold by others were produced. His conviction may be attributed to a New York statutory presumption to the effect that the presence of a dangerous drug in an automobile is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time the drug was found, N.Y. Penal Law § 220.25 (1). 2 Prior to his conviction appellant had been lawfully and gainfully employed as the owner and driver of several trucks. He had no prior criminal record other than two minor convictions more than 10 years old, one for reckless driving and the other for petty larceny. There was no evidence that he had ever been involved in the drug business other than his participation in the transaction for which he was convicted in the present case. Based on the foregoing evidence, including the presumption of possession, appellant was found guilty of selling a dangerous drug in the first degree, N.Y. Penal Law § 220.44 (now § 220.43), criminal possession of a dangerous drug in the first degree, N.Y. Penal Law § 220.23 (now § 220.21), and criminal possession of a drug in the fourth degree, N.Y. Penal Law § 220.15 (now § 220.12). On April 4, 1973, Justice John J. Ryan, who presided at the trial, having no alternative, sentenced appellant pursuant to N.Y. Penal Law § 70.00 as a Class A — I felony offender to a mandatory prison term of a minimum of 15 years to a maximum of life imprisonment and as a lesser offender to an indeterminate term up to seven years imprisonment. At the time of sentence Judge Ryan stated: “[A]s Counsel has indicated, the Court has very little room for discretion in this case. It cannot in any way change the maximum sentence which applies. It has the right to sentence to a minimum sentence of between fifteen and twenty-five years. Now, that is the extent of its discretion. (Sentencing minutes, P. 12).” Under federal law appellant would have been subject to a maximum punishment of up to 15 years, 21 U.S.C. § 841 , with the possibility of immediate probation, plus a *379 fine and a special parole term. Under New York State law, on the other hand, he will not be eligible for parole until 1987, when he will have served the 15-year minimum term. Of course, there remains the possibility that even after 1987 he might either be denied parole or, if released, placed on parole for the rest of his life. On July 2, 1975, Judge Ryan wrote appellant’s mother that if he (Ryan) had any discretionary power to alter the sentence imposed upon appellant, he would do so, and on September 16, 1975, he wrote to the New York State Executive Clemency Board urging that clemency be extended to the defendant. Our decision in Carmona , which has been relied upon by the majority and by the district court as the basis for denying Eighth Amendment relief in the present case, is clearly distinguishable in several legally significant respects. In that case the two defendants were the very type of hardened narcotics traffickers against whom New York’s new harsh laws were directed. Carmona had previously been convicted of narcotics related charges in both state and federal courts. She was actively engaged in the trade of selling narcotics. She admitted possessing cocaine for the purpose of sale, marijuana and paraphernalia associated with drug-dealing. The defendant Fowler in that case had previously been found guilty of criminal possession of a hypodermic instrument, criminal use of drug paraphernalia, possession of dangerous drugs, prostitution, possession of stolen property and of forged instruments, and petty larceny. More important for present purposes both Carmona and Fowler were allowed ,to plead guilty to lesser offenses, Carmona to a lesser Class A-II felony carrying a six-year minimum prison sentence and Fowler to a Class A-III felony carrying a minimum prison sentence of one year. Thus Carmona and Fowler would be eligible for parole in six years and one year, respectively. Here in contrast appellant will not' be eligible for parole for at least another eight years and ironically his fellow defendants who were major figures in negotiating the sale of the narcotics involved in the case will be eligible for parole in six years because they were permitted to plead guilty to Class A — II felonies. As a result a person who was not a drug dealer in the ordinary sense of the term, who was not making his living preying upon those who from desperation had become drug addicts, and who is not himself a drug user, has for no apparent logical reason been exposed to a full dose of society’s wrath originating in its intractable problem of drug abuse. In my view the punishment inflicted upon him is cruel and unusual within the meaning of the Eighth Amendment. Since the mandatory sentence prescribed by N.Y. Penal Law §§ 70.00 , 220.44 (now § 220.43) and 220.23 (now § 220.21) is in my view unconstitutional as applied to appellant, I would remand the case with directions to release appellant, who has now been in prison for seven years, unless the state court within 60 days resentences him to a term consistent with the limitations of the Eighth Amendment. Mahler v. Eby, 264 U.S. 32, 46 , 44 S.Ct. 283 , 68 L.Ed. 549 (1924). Cf. Boles v. Stevenson, 379 U.S. 43 , 85 S.Ct. 174 , 13 L.Ed.2d 109 (1964); Townsend v. Sain, 372 U.S. 293, 316 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963); Chessman v. Teets, 354 U.S. 156, 166 , 77 S.Ct. 1127 , 1 L.Ed.2d 1253 (1957); United States ex rel. Parson v. Anderson, 354 F.Supp. 1060, 1091 (D. Del.), aff'd., 481 F.2d 94 (3d Cir.), cert. denied, 414 U.S. 1072 , 94 S.Ct. 586 , 38 L.Ed.2d 479 (1972). . Underscoring a position taken by me in Indiviglio v. United States, 612 F.2d 624 (2d Cir., Dkt. No. 79-2021, Nov. 26, 1979, Slip Op. 5446), I concur in the holding that Bellavia was not denied effective assistance of counsel not merely because his attorney’s assistance meets the “shock the conscience — farce and mockery of justice” standard that remains the criterion in this Circuit, see United States v. Wight, 176 F.2d 376 and decisions cited at page 372, supra, but because it also satisfies the more liberal and lenient standards adopted by 9 out of the 10 other circuits. United States v. DeCoster, 159 U.S.App.D.C. 326, 331 , 487 F.2d 1197, 1202 (D.C. Cir. 1973) (“reasonably competent assistance”); United States v. Bosch, 584 F.2d 1113, 1120-21 (1st Cir. 1978) (“reasonably competent assistance”); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc) (“customary skill and knowledge”); Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir. 1977), cert. denied, 435 U.S. 1011 , 98 S.Ct. 1885 , 56 L.Ed.2d 394 (1978) (“normal competency”); United States v. Gray, 565 F.2d 881, 887 (5th Cir.), cert. denied, 435 U.S. 955 , 98 S.Ct. 1587 , 55 L.Ed.2d 807 (1978) (“reasonably effective counsel”); United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975), cert. denied sub nom. Pruitt v. United States, 429 U.S. 838 , 97 S.Ct. 107 , 50 L.Ed.2d 104 (1976) (“reasonably effective assistance”); United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir.), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876 , 96 S.Ct. 148 , 46 L.Ed.2d 109 (1975) (“minimum standard of professional representation”); Morrow v. Parratt, 574 F.2d 411, 412-13 (8th Cir. 1978) (“customary skills and diligence”); *376 Cooper v. Fitzharris, 586 F.2d 1325, 1327 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 (1979) (“reasonably competent and effective”). In view of the fact that nine circuits have adopted a different test along the lines of “reasonable competence,” leaving only the Second and Tenth Circuits adhering to the old rule, I believe that in an appropriate case this court should re-evaluate the standard to be applied, as was suggested in Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62, 66, 67 (2d Cir. 1976), cert. denied, 434 U.S. 826 , 98 S.Ct. 103 , 54 L.Ed.2d 85 (1977). However, this is not an appropriate case for the reason that the conduct of Bellavia’s counsel satisfied all of the above tests. . A conviction based on such a presumption, is, of course, perfectly valid since the Supreme Court’s recent 5-4 decision in County Court of Ulster County, New York v. Allen, 442 U.S. 140 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979), and our decision in Lopez v. Curry, 583 F.2d 1188 (2d Cir. 1978). But for purposes of determining whether the sentence here was disproportionate, this presumption simply confirms the strictly peripheral nature of appellant’s participation, whether it be labelled possession or aiding and abetting a sale. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466411. Public record. Not legal advice.