Petition — Hutto v. Davis

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

y VERS ouUpree Uourt, U.S,

Biwn

81-283 JUL2 1981

ALEXANDER L. STEVAS,

TLERA

In THE

Supreme Court of the United States

Octoser Term, 1980

No.

TERRELL Don HutrTo, Director,

Virginia State Department of Corrections,

and

Gene M. JOHNSON, Superintendent,

Powhatan Correctional Center,

Petitioners,

ROGER TRENTON DAVIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

J. MARSHALL COLEMAN

Attorney General of Virginia

JaMES E. KuULP

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

QUESTIONS PRESENTED

DID THE COURT OF APPEALS CORRECTLY APPLY

RUMMELL V. ESTELLE, 445 U.S. 263 (1980), TO

THIS CASE UPON REMAND FROM THE SUPREME

COURT?

DID THE COURT OF APPEALS ERR IN FINDING

THAT RESPONDENT'S SENTENCES CONSTITUTED

CRUEL AND UNUSUAL PUNISHMENT?

TABLE OF CONTENTS

Oe EEIEEES BIBED cosccscnseoscecccovessoscsseseeoosscscoseee

Siri sceskasbrepsashinenncnsopesevecsevesveneceonccoseoneocees

iT IIIT cba sabtsesiohesnsneboveesesonceteccsenecaseocsnccessoecscees

Sit eT REED setiscocnsseoveevecscoesovceseeersvsconescoceeeces

SPREE UNITED COE BERN CAB once cccccccoseseseccsccncccscccccescceee

Sina atic i oaseaissabesivancneneneqroneseovesscecevseseocessocceee

1. THE COURT OF APPEALS DID NOT

APPLY RUMMEL vy. ESTELLE, 445 US.

263 (1980), CORRECTLY TO THIS CASE

ae FROM THE SUPREME

2. THE COURT OF APPEALS ERRED IN

FINDING RESPONDENT'S SENTENCE

TO BE CRUEL AND UNUSUAL................0..

CONCLUSION

mg) ey Ce | A) & Sanne

TABLE OF CITATIONS

Page

Britton v. Rogers, 631 F.2d 214 (3rd Cir. 1980)......... 8

Carmona v. Ward, 576 F.2d 405, 412 (2nd Cir.

RDF b sctasnnnivcsinctenvesasnaiiatinendeeidsetavineiintininintebesessioigienes 6,10

Government of Virgin Islands v. Berry, 631 F.2d 214

CF Gees FEED sckecrncitnsshdrtenstivigntennntivigambecicdamemas 8

Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973).............. 5,7,8

Hayes v. Bordenkircher, 621 F.2d 844 ( 6th Cir. 1980) 7

Rummel v. Estelle, 445 U.S. 263 (1980) .......cccccceeesesees 5,6,7,8,10

Terrebonne v. Blackburn, 624 F.2d 1363 (Sth Cir.

1980) soceoiplisteliugaitthasinskiphanbdenateaicnapaennean

United States v. Wylie, 625 F.2d 1371 (9th Cir.) cert.

denied, 101 S. Ct. 863 (1980)

OTHER AUTHORITIES:

28 U.S.C. § 1254(1) 2

§ 18.2-248 s 2a

§ 18.2-250 9

BF SOFIE cccscsccssvsanscsscvsnscvsnssenenesnnsse 0 2

IN THE

Supreme Court of the United States

OcToBER TERM, 1980

No.

TERRELL Don Hutto, Director,

Virginia State Department of Corrections,

and

GENE M. JOHNSON, Superintendent,

Powhatan Correctional Center,

Petitioners,

ROGER TRENTON DAVIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELO'W

The opinion of the Court of Appeals en banc from which

certiorari is sought is reported in 646 F.2d 123 (4th Cir. 1981),

and is included herein as Appendix A. The first en banc

opinion is reported in 601 F.2d 153 (4th Cir. 1979), and is

included as Appendix B. The original panel decision is

reported in 585 F.2d 1222 (4th Cir. 1978), and is included as

Appendix C. The opinion of the District Court is reported in

432 F. Supp. 444 (W.D.Va. 1977).

JURISDICTION

The opinion of the Court of Appeals was handed down on

April 7, 1981. The jurisdiction of this Court to issue the Writ of

Certiorari in this case is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

§ 18.2-248. Penalties for manufacture, sale, gift, dis-

tribution or possession of a controlled drug.—Except as author-

ized in The Drug Control Act, chapter 15.1 ( § 54-524.1 et seq. )

of Title 54 of this Code, it shall be unlawful for any person to

manufacture, sell, give, distribute or possess with intent to

manufacture, sell, give or distribute a controlled substance.

(a) Any person who violates this section with respect to a

controlled substance classified in Schedules I, II or III shall

upon conviction be imprisoned for not less than five or more

than forty years and fined not more than twenty-five thousand

dollars; any person, upon a second or subsequent conviction of

a violation of this section involving an opiate or synthetic opiate

drug, may in the discretion of the court or jury imposing the

sentence, be sentenced to confinement in the penitentiary for a

term of life imprisonment or for any period not less than five

years; provided, that if such person prove that he gave,

distributed or possessed with intent to give or distribute a

controlled substance classified in Schedule I or II other than

marijuana only as an accommodation to another individual and

not with intent to profit thereby nor to induce the recipient or

intended recipient of the controlled substance to use or become

addicted to or dependent upon such controlled substance, he

shall be guilty of a Class 5 felony; and provided further, that if

such person prove that he gave, distributed or possessed with

intent to give or distribute marijuana or a controlled substance

classified in Schedule III only as an accommodation to another

individual and not with intent to profit thereby nor to induce

the recipient or intended recipient of the controlled substance to

use or become addicted to or dependent upon such controlled

substance, he shall be guilty of a Class | misdemeanor.

Provided, further, that if the violation of the provisions of

this article consist of the filling by a pharmacist of the pre-

scription of a person authorized under this article to issue the

same, which prescription has not been received in writing by

the pharmacist prior to the filling thereof, and such written

prescription is in fact received by the pharmacist within one

week of the time of filling the same, or if such violation consists

of a request by such authorized person for the filling by a

pharmacists of a prescription which has not been received in

writing by the pharmacist and such prescription is, in fact,

written at the time of such request and delivered to the

pharmacist within one week thereof, either such offense shall

constitute a Class 4 misdemeanor.

(b) Any person who violates this section with respect to a

controlled substance classified in Schedules IV, V or VI shall be

guilty of a Class | misdemeanor.

STATEMENT OF THE CASE

Roger Trenton Davis was indicted for two separate and

distinct violations of the Virginia Drug Control Law. After trial

by jury Davis was found guilty of selling marijuana for which

he was sentenced to a term of imprisonment of twenty (20)

years and fined ten thousand ($10,009.00) dollars. He was

also convicted of possession of marijuana with intent to dis-

tribute for which he was likewise sentenced to a term of

imprisonment of twenty (20) years and fined ten thousand

($10,000.00) dollars. Davis appealed his convictions to the

Supreme Court of Virginia which denied his petition for writ of

error.

The principle evidence against Davis came from the

testimony of Danny Ray Eads. Eads, an inmate in the Virginia

Correctional system, became concerned with his wife’s usage of

drugs and its effect upon the welfare of his two-year-old child.

Eads approached state officials and offered to assist in the

exposure and arrest of those persons supplying drugs to his wife

and any illicit drug distributors, including Davis, who Eads

identified as an active drug dealer in the county where his wife

resided.

The Commonwealth accepted Eads’ offer of assistance and

granted him a furlough from prison for the purpose of

apprehending drug traffickers. He was placed under strict

surveillance during the investigation, and at times wore a

transmitter strapped to his body so that the police could hear

and record his conversations with drug dealers.

Eads met Davis, with whom he had become acquainted in

jail while Davis was charged with a different drug offense, and

told Davis he wished to purchase drugs for himself and for

some mutual friends at the prison. Davis advised that he could

sell Eads a quarter pound of marijuana for one-hundred

($100.00) dollars. When Eads protested that the price was too

high Davis said he could make up a seventy-five ($75.00)

dollar bag.

Eads accompanied Davis to his home where Davis re-

moved a portion of marijuana from a large plastic bag, weighed

it on a small scale, and gave three (3) ounces of marijuana to

Eads in exchange for seventy-four ($74.00) dollars. Davis also

gave Eads some drug pills, including L.S.D. and other illicit

controlled drugs. During this transaction Davis said he would

like to blow up the State Police Headquarters. The conversa-

tions between Eads and Davis were transmitted via Eads’

hidden transmitter and recorded by the police. These record-

ings were played for the jury.

The second charge against Davis resulted from a police

raid of his residence. In Davis’ bedroom the police discovered

two sets of scales and other drug paraphernalia. A small plastic

bag containing eight grams of marijuana was found in a jacket,

and outside of the bedroom window the police found a large

plastic bag, similar to the receptacle from which Davis took the

marijuana sold to Eads, which contained one-hundred and

sixty-eight grams of marijuana. Davis was found hiding in a

closet.

After exhausting his state remedies Davis filed a petition

for writ of habeas corpus in the United States District Court.

The district court granted the writ upon its belief that the

sentence was grossly out of proportion to the severity of the

crimes as to constitute cruel and unusual punishment in viola-

tion of the Eighth Amendment of the United States Con-

stitution. A panel of the Court of Appeals reversed the district

court concluding that the sentences were neither cruel nor

unusual. The Court of Appeals reconsidered the issue en banc

and by a vote of 4 to 3, adopted the district court opinion and

affirmed the issuance of the writ of habeas corpus. This Court

vacated the judgment and remanded for further consideration

in light of Rummel v. Estelle, 445 U.S. 263( 1980). The Court

of Appeals by a vote of 5 to 5 affirmed the district court.

ARGUMENT FOR GRANTING

WRIT OF CERTIORARI

THE COURT OF APPEALS DID NOT APPLY RUMMEL v.

ESTELLE, 445 U.S. 263 (1980), CORRECTLY TO THIS

CASE UPON REMAND FROM THE SUPREME COURT.

This Court previously vacated the decision of the Court of

Appeals en banc and remanded the case for further consid-

eration in light of Rummel v. Estelle, 445 U.S. 263 (1980). See,

445 U.S. 947 (1980). Upon briefing and oral argument the

Court of Appeals affirmed the district court’s finding of cruel

and unusual punishment on an equal division of the en banc

court. See, Appendix A.

In arriving at this decision the Court of Appeals has failed

to properly apply this court’s decision in Rummel v. Estelle, to

this case, and its decision conflicts with decisions of other courts

of appeals.

The basis for the Court of Appeals’ decision rests upon the

four prong test enunciated in Hart v. Coiner, 483 F.2d 136 (4th

Cir. 1973). The decision in Hart was rejected by this Court in

Rummel, and there no longer exists any underpinnings for the

decision of the Court of Appeals.

The first test utilized by the district court and adopted by

the Court of Appeals was to look at the nature of the offenses.

The district court found no element of violence and minimal,

debatable danger to the person. In Rummel, this Court held

that the presence or absence of violence does not always affect

the strength of society’s interest in deterring a particular crime

or in punishing a particular criminal. 100 S. Ct. at 1140.

The statute under which Respondent was convicted was

passed for the purpose of interdicting the flow of narcotics, and

to punish drug pushers. Drug trafficking, even in marijuana, is

a generator of collateral crime, including violent crime, and the

problem has reached epidemic proportions. See, Carmona v.

Ward, 576 F.2d 405, 412 (2nd Cir. 1978), cert. denied, 99 S. Ct.

874 (1979).

Whether marijuana is dangerous or relatively harmless is

the subject of hot debate among the experts, and remains a

question properly left to the legislative branch of government.

The power of punishment is vested in the legislative, not the

judicial branch of government. The legislature not only defines

what shall constitute a crime, but also selects the range of

punishment. To authorize federal courts to supervise the length

of sentences given by state courts will inevitably bring the

courts into conflict with legislative judgments. In our system of

government it is the legislature, not the judiciary, who is

constituted the respond to the will and moral values of the

people.

The second test was an examination of the purpose behind

the punishment and a determination of less restrictive alterna-

tives. The district court and the Court of Appeals referred to

the fact that there was less than nine ounces of marijuana

involved.

In Rummel this Court recognized that what is a “small”

amount of money [drugs] is a matter of line drawing which is

inherently subjective and thus properly within the province of

legislatures, not courts. 100 S. Ct. at 1140. The Respondent

was sentenced because he was a drug pusher, and the amount

of drugs involved is irrelevant.

The third test was to compare the punishment imposed to

corresponding sentences in other jurisdictions. The district

court noted that the sentence of twenty years for distributing

exceeded the maximum available in all but eight states and four

states had a penalty greater than the twenty year sentence for

possession with intent to distribute.

In Rummel, this Court countered a similar argument by

holding that even if it was to be assumed that the statute

employed against the defendant was the most stringent in the

fifty states, that severity hardly would render defendant’s

punishment grossly disproportionate. 100 S. Ct. at 1143.

Unless national uniform sentences are imposed upon the States,

some States will always treat particular offenders more severely

than other states.

In the fourth test the court considered the punishment

available in the same jurisdiction for other offenses. The court

noted that a maximum of twenty years could be imposed for

murder in the second degree, abduction and attempted murder

among others.

This Court in Rummel, however, observed that comparing

crimes is inherently speculative since different crimes involved

different societal interests. 100 S. Ct. 1143 n. 27.

The drug problem in this country has reached epidemic

proportions. It not only touches the lives of those in the drug

culture, but invades and permeates every aspect of society. The

number of crimes which have a genesis in drugs is incalculable.

It is little wonder that States have come to the conclusion that

drug pushers must be dealt with severely. The whole fabric of

our society is being torn apart by those who sell drugs.

Rational people may disagree as to what punishment should be

imposed upon drug dealers, but any such assessment is for the

legislature and not the courts.

The opinion of the Court of Appeals conflicts with the

decisions rendered by other federal courts of appeal. In Hayes

v. Bordenkircher, 621 F.2d 844 (6th Cir. 1980), the defendant

relied upon the four pronged test of Hart v. Coiner, which is the

underlying basis of the decision in this case. The Sixth Circuit,

however, held that “Rummel v. Estelle removes the Hart test

from our consideration.” 621 F.2d at 848. This ruling is in

direct conflict with that of the Court of Appeals in the present

case.

Additionally, the Third, Eighth, and Ninth Circuits have

held, citing Rummel, that the length of prison sentences gener-

ally falls within the discretion of the states, and Rummel

precludes invoking the disproportionality principle as violative

of the Eighth Amendment, except in capital punishment and

unique factual circumstances. See Government of Virgin Islands

v. Berry, 631 F.2d 214 (3rd Cir. 1980); Britton v. Rogers, 631

F.2d 572 (8th Cir. 1980); and United States v. Wylie, 625 F.2d

1371 (9th Cir.) cert. denied, 101 S. Ct. 863 (1980).

A panel of the Fifth Circuit in Terrebonne v. Blackburn,

624 F.2d 1363 (Sth Cir. 1980), does appear to apply the

disproportionality analysis, but a rehearing en banc has been

ordered. See, 624 F.2d at 1372.

THE COURT OF APPEALS ERRED IN FINDING RE-

SPONDENT’S SENTENCE TO BE CRUEL AND UNUSU-

AL.

Upon examining Respondent’s sentence in a rational man-

ner there is nothing to support a finding that it is cruel and

unusual. The Fourth Circuit has made a basic error in its

analysis of Respondent’s sentence. The court has failed to

consider that Respondent was convicted of two separate and

distinct offenses. The court has lumped the two offenses

together to arrive at the sentence of forty years for possession

and sale of less than nine ounces of marijuana.

The first offense for which Respondent was convicted was

the sale of three ounces of marijuana to Danny Rae Eads. The

Respondent knew that Eads was an inmate of the Virginia

penal system who was on a furlough. The Respondent also

knew that Eads intended these drugs to be distributed to

inmates in one of Virginia’s penal institutions, and with this

knowledge also furnished Eads with other drug pil!s, including

L.S.D. For this offense the jury sentenced Respondent to

twenty years and a fine. Any proportionality review must be of

this sentence alone and not in combination with other sen-

tences.

Under Virginia law applicable a: the time of Respondent's

trial the legislature had made it a serious felony to sell for profit

any drugs classified as a Schedule I, I] or III drug. See § 18.2-

248. The legislature set the range of punishment for a violation

of this law from five to forty years. In fact the Respondent

received exactly one-half of the authorized punishment. Con-

sidering parole, which the Fourth Circuit declined to do, the

Respondent would be eligible for parole in less than five years.

It simply cannot be said that such a sentence is cruel and

unusual when the jury knew the Respondent to be a drug

dealer by vocation, that he was willing to sell drugs to be taken

into a penal institution, and had probably sold drugs to the

inmate’s wife who had been left alone with an infant child. The

trial judge who could have reduced this sentence, in addition to

knowing what the jury knew, also knew that Respondent had

previously been convicted of selling L.S.D. and was free on bail

pending appeal when he committed the present offense.

The legislative purpose in enacting § 18.2-248 was to

interdict and punish those persons who would sell controlled

drugs for a profit. The legislature had recognized that if a

person distributed marijuana only as an accommodation to

another individual and not with intent to profit or to induce the

recipient to use or become addicted to or dependant upon

marijuana then his punishment would be a Class I mis-

demeanor. The maximum punishment for a Class I mis-

demeanor under Virginia law is twelve months in jail. § 18.2-

11. Further the legislature made a determination that persons

convicted solely of possession of marijuana the punishment

again would be a Class I misdemeanor. § 18.2-250.

The legislative determination that the range of punishment

for persons who sell controlled drugs for profit would be from

five to forty years allows the sentencing authority to allocate an

appropriate sentence by taking into consideration the

background of the defendant, and the nature of the crime.

Selling drugs to be taken into a penal institution is certainly

more serious than selling the same amount of drugs on the

streets.

The Respondent’s second conviction was for possession of

marijuana with intent to sell. When the police went to

Respondent's home they not only found eight grams of mari-

juana in a jacket, but also found one-hundred and sixty-eight

grams of marijuana in a bag outside of the bedroom window.

In addition the police found two sets of scales and other drug

paraphernalia, the tools of the trade of a drug dealer. Again,

this sentence must be viewed alone in any proportionality

review.

The jury knew that Respondent was an active drug dealer

and that the drugs found were not for his own use. The trial

judge knew that Respondent had not been detered by his

previous conviction and was continuing to pursue his trade

while on bond from another drug conviction. See Carmona v.

Ward, 576 F.2d at 406. Such conduct by Respondent would of

necessity be viewed as constituting a serious offense by the jury,

and they imposed a sentence which was half of the authorized

punishment.

The Respondent did not attack the validity of § 18.2-248

on its face and thereby has accepted the legislature's classifica-

tion of the sale of marijuana for profit as a serious offense. It

cannot be said that Respondent's sentence of twenty years is

without a rational basis or that it is such as would shock human

sensibilities.

CONCLUSION

In affirming the finding of cruel and unusual punishment in

this case, the Court of Appeals has relied upon the very tests

which have been rejected by this Court in Rummel v. Estelle.

By so doing the opinion of the Court of Appeals is in conflict

not only with an applicable decision of this Court, but conflicts

with the interpretation of Rummel by other Courts of Appeal.

This Court’s decision in Rummel is dispositive of the very

issue raised in this case, and the failure of the Court of Appeals

to properly apply Rummel mandates that certiorari be granted

and the judgment of the Court of Appeals be reversed.

Respectfully submitted,

J. MARSHALL COLEMAN,

Attorney General of Virginia

James E. KuLP

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, James E. Kulp, Deputy Attorney General of Virginia, of

counsel for petitioner, and a member of the Bar of the Supreme

Court of the United States, do hereby certify on the 2nd day of

July, 1981, I mailed a copy of the foregoing Petition for Writ of

Certiorari to Edward L. Hogshire, Esquire, 500 Citizens Com-

monwealth Center, Post Office Box 1151, Charlottesville, Vir-

ginia 22902, and to John C. Lowe, Esquire, 409 Park Street,

Charlottesville, Virginia 22903, counsel for respondent.

James E. Kulp

Deputy Attorney General

APPENDIX A

Rnited States Court of Appeals

For THE FourtuH Circuit

No. 77-1782

ROGER TRENTON Davis,

Appellee,

Vv.

Jack F. Davis, Director,

Virginia State Department of Corrections,

and

R. M. Muncy, Superintendent,

Powhatan Correctional Center,

Appellants.

Per CURIAM:

The petitioner, a prisoner of the Commonwealth of Vir-

ginia, was convicted on charges of possession with intent to

distribute and distribution of marijuana, and received two

consecutive sentences of a $10,000 fine and twenty years

imprisonment. The district court granted a writ of habeas

corpus on the ground that these sentences were so dis-

proportionate to the offenses as to constitute cruel and unusual

punishment in violation of the Eight Amendment to the United

States Constitution. 432 F.Supp. 444 (W.D.Va. 1977). A

panel of this court reversed. 585 F.2d 1226 (4th Cir. 1978).

Upon rehearing en banc on the motion of the petitioner,

this court affirmed the district court’s judgment. 601 F.2d 153

(4th Cir. 1979). The Supreme Court granted the respondent's

petition for a writ of certiorari, vacated this court's judgment

and remanded the case for further consideration in light of

Rummel v. Estelle, 100 S.Ct. 1133 (1980).

The judgment of the district court is affirmed on an equal

division of the en banc court.

AFFIRMED.

WIpENER, Circuit Judge, dissenting, in which dissent he is

joined by Judges Russell and Hall.

I dissent to the refusal of the en banc court to reverse the

judgment of the district court appealed from for the reasons set

forth in detail in the panel opinion of this court at 585 F.2d

1226 (4th Cir. 1978), and in the dissenting opinion to the

opinion of the court in the first en banc consideration of this

case found at 601 F.2d 153 (4th Cir. 1979).

Further, because the judgment of this court in the en banc

decision in this very case, 601 F.2d 153 (4th Cir. 1979), was

vacated and remanded by the Supreme Court? for further

consideration in the light of Rummel v. Estelle, 445 U.S. 263

(1980), I think the decision in Rummel deserves special

consideration. Rummel, as I see it, takes essentially the same

view as does the panel opinion in this case which reversed the

district court.9 If that is true, as I think it is, the disposition of

‘In the panel opinion at page 1233, speaking to the sufficiency of the

evidence we relied on Williams v. Peyton, 414 F2d 776 (4th Cir, 1969),

which at that time was circuit precedent as to the sufficiency of evidence in

habeas corpus review using the any evidence at all rule as found in Thompson

v. Louisville, 362 U.S. 199 (1960). In 1979, however, Jackson v. Virginia,

443 U.S. 307 (1979), was decided, changing the standard for habeas corpus

review from any evidence at all to one that required evidence which would

permit “any rational trier of fact”. . .” to have found the essential elements

of the crime beyond a reasonable doubt.” ( Italics in original.) Under the rule

in Jackson v. Virginia, as in Williams v. Peyton, the evidence in this case not

only permits the finding as to punishment by a rational trier of fact, it fully

supports it. This is not a case of life imprisonment for a parking ticket, see

Rummel, at 274, n. 11, or even a simple street corner sale of drugs from one

high school child to another.

2445 U.S. 947 (1980) sub nom Davis v. Hutto, No, 79-482.

3 Specifically, the Supreme Court, in its opinion in Rummel, rejected our

decision in Hart v, Coiner, 483 F2d 136 (4th Cir. 1973). Hart was relied on

(footnote continues)

the present en banc court in this case should have been a simple

reversal for which no extensive opinion was necessary, if any

opinion at all, for the various views of the law in this case had

been sufficiently explored in the panel opinion and in the

Supreme Court's opinion in Rummel.

Accordingly, I respectfully dissent.

(footnote continued)

by the district court in its opinion, and the only reason for the judgment of the

en banc court given in its per curiam opinion, other than that less than nine

ounces of marijuana was involved, was that it affirmed “for reasons suffi-

ciently stated by the district judge in his opinion.” 601 F2d at 154, The

Supreme Court also construed Weems v, United States, 217 U.S, 349 (1910),

in the same manner as did the panel in this case. The district court opinion

which is affirmed in this case relied on Weems and Hart just as did the

majority of the Fifth Circuit panel in Rummel, see 445 U.S. at 267, which was

overruled by the Fifth Circuit sitting en banc, see 445 U.S. at 268. The en

banc opinion of the Fifth Circuit, of course, was affirmed by Rummel. Weems

and Hart are the essential roots of all the argument in this case, and the

construction given by the district court to each of them has been specifically

rejected by the Supreme Court in Rummel.

APPENDIX B

United States Cowt of Appeals

For THE FourtH Circuit

No. 77-1782

ROGER TRENTON Davis,

Appellee,

Vv.

Jack F. Davis, Director,

Virginia State Department of Corrections,

and

R. M. Muncy, Superintendent,

Powhatan Correctional Center,

Appellants.

Decided June 29, 1979

Per CURIAM:

The petitioner was prosecuted in a court of the Com-

monwealth of Virginia upon charges of possession of marijuana

with the intent to distribute and its distribution. Upon con-

viction, although less than nine ounces of marijuana were

involved in the offenses, the court imposed a fine of $20,000

and a sentence of imprisonment of forty years. The district

court concluded that the penalties imposed were so dis-

proportionate to the offenses as to amount to cruel and unusual

punishment in violation of the Eight Amendment to the Con-

stitution of the United States. On that basis, a writ of habeas

corpus was awarded, and the Commonwealth of Virginia has

appealed.

We affirm for reasons sufficiently stated by the district

judge in his opinion. 432 F. Supp. 444 (W.D. Va. 1977). This

action supersedes the panel opinion. 585 F.2d 1226 (4th Cir.

1978).

AFFIRMED.

Wipener, Circuit Judge, dissenting, in which dissent he is

joined by Judges Russell and Hall.

I respectfully dissent for the reasons expressed in the

opinion of the panel. 585 F.2d 1226 (4th Cir. 1978).

In addition, I should note that I think both the district

court and this court have usurped not only the function of a

State legislature but also that of a State court and a State jury.

This is the first time, to my knowledge, in the history of

Article III courts, that a federal court of appeals’ has, without

invalidating a statute, set aside the sentence of a State court

imposing punishment for a term of years plus a fine, within

State statutory limitations, as being cruel and unusual, and the

error is compounded because the sentence itself, while imposed

by the court, was fixed by a jury.

The majority opinion emphasizes, apparently as a princi-

pal reason for its decision, that less than nine ounces of

marijuana were involved in the drug sale in question (for that is

the only reason it gives aside from referring to the opinion of

the district court). But, at the same time, it does not mention

most relevant facts which were before the State court.? Davis

was a previously convicted seller of drugs (LSD),° and known

' Downey v. Perini, 518 F2d 1288 (6th Cir, 1975), set aside an

indeterminate sentence for possession and sale of marijuana under Ohio law.

Because the court held the minimum sentence invalid, | would construe the

opinion as invalidating the statute.

It is acknowledged that the Supreme Court has neven taken such action.

* The district court also chose largely to disregard these facts in its

opinion, for it mentioned few of them. Its continued emphasis was on “less

than nine ounces,”

9 The district court in its opinion points out yet another conviction of

Davis, prior to Davis’ sentence here, for feloniously distributing marijuana.

432 F.Supp. at 448, n. |. This marijuana conviction was only one day before

the search which netted the authorities the 168 grams involved here.

drug dealer, who, when apprehended, was in possession of the

typical paraphernalia of his vocation. He had sold drugs to the

young wife of a prison inmate, who had a baby at home, which

is what brought about the instant conviction. The marijuana

sold here was being sent with Davis’ knowledge into a State

prison camp for use by the inmates, as was LSD and another

illegal drug which were turned over by Davis for that purpose,

at the time of the marijuana purchase, to the purchaser of the

marijuana involved in this case.

While I would deny the authority of a federal court to

inquire into the amount of Davis’ punishment, rather requiring

him to attack the statute involved,‘ on the facts of the case at

hand, I think it cannot be said that Davis did not merit the

punishment awarded, so that as a matter of fact as well as a

matter of law his punishment was neither cruel nor unusual

within the meaning of the Eighth Amendment.

I think the precedent we set here, setting ourselves up as a

super State jury, is not only without legal precedent or author-

ity, in the setting of our “charter of government” I think it is

fraught with danger.

4The en banc court could have taken this view upon respectable

precedent as pointed out in the panel opinion.

APPENDIX C

United States Court of Appeals

For THE FourtuH Circuit

No. 77-1782

ROGER TRENTON Davis,

Appellee,

Jack F. Davis, Director,

Virginia State Department of Corrections,

and

R. M. Muncy, Superintendent,

Powhatan Correctional Center,

Appellants.

Decided October 30, 1978.

WIDENER, Circuit Judge:

This is an appeal from the issuance of a writ of habeas

corpus in which case the district court set aside two sentences as

being so disproportionately excessive as to constitute cruel and

unusual punishment under the Eighth Amendment.

Roger Trenton Davis was convicted in a trial by jury in

Wythe County, Virginia of the offenses of distribution of

marijuana and possession of marijuana with intent to distribute.

In his petition for a writ of habeas corpus, Davis attacked the

severity of the sentences he received, as well as making other

constitutional claims.' He contends that in this appeal the

offense committed was minor; the facts constituting the case

‘Davis made several additional constitutional claims which were dis-

missed by the district court. He does not appeal from their dismissal, and the

issues are not before this court. The district court's opinion is reported at 432

F. Supp. 444 ( W.D. Va. 1977).

against him reveal a relatively insignificant crime for which the

Commonwealth’s sanction should be correspondingly slight;

and, in view of the claimed relative innocuousness of the act of

selling marijuana in the amounts proven, the sentences imposed

were disproportionate to the offense. While the district court

granted the writ, we do not agree and we reverse.

Davis was sentenced to two twenty year terms, to be served

consecutively, and fined $10,000 for each of the two counts. As

is the practice in Virginia, the jury sentenced Davis upon its

finding of guilt, and the court entered judgment on that verdict.

Va. Code Ann., § 19.2-295.2

The jury awarded the sentence after hearing evidence

which revealed Davis to be a dealer in drugs who sold them to

a man who had informed Davis that the drugs were being

procured for distribution to inmates in a state penal institution.

Davis sold not only marijuana but also two other drugs in pill

form, all to be taken to the inmates.

The evidence against Davis centered principally in the

testimony of Danny Ray Eads. Eads, an inmate at Bland prison

farm, approached prison officials with a proposition concerning

drug traffic in Pulaski and Wythe Counties. Eads was con-

cerned by his wife’s use of drugs (she had become a drug user

after his confinement) and the consequent effect on the welfare

of his two year old child; he told authorities that he desired a

furlough from prison in order to assist in the exposure and

arrest of those supplying drugs to his wife and any illicit drug

distributor in the area, including Davis who Eads identified as

an active drug dealer in Wythe County.

The Commonwealth accepted Ead’s offer of assistance and

allowed him a furlough for the purpose of apprehending drug

traffickers in Pulaski and Wythe Counties. During the time of

the investigation, Eads was under strict surveillance. As part of

2See Vines v. Muncy, 553 F2d 342 (4th Cir. 1977).

the investigation, for example, he wore a transmitter strapped

to his body so that the police could hear and record his

conversations with drug dealers.

Eads met Davis on the streets of Wytheville in front of a

“head shop,” a store specializing in the sale of drug para-

phernalia. Eads testified that he and Davis had become ac-

quainted in jail while Davis was in jail, having been arrested on

a different drug offense. He told Davis that he wished to

purchase some drugs for himself and for some mutual friends at

Bland prison farm. Davis responded that he thought he could

provide Eads with the contraband he needed, left, and returned

ten minutes later. Eads then accompanied Davis to the latter's

home.

There, the two men went into Davis’ bedroom. Davis

removed a portion of marijuana from a large plastic bag,

weighed it on a small scale, and gave three ounces of marijuana

to Eads in return for $74.00. Also, at that time, Davis gave

Eads the drug pills which included L.S.D. and another illicit,

controlled drug. This conversation between Eads and Davis

was transmitted via Ead’s hidden transmitter and recorded by

the police. That recording, as well as the recording, of Ead’s

initial contact with Davis, was played to the jury. Thus, the

jury was intimately familiar with the conversation accom-

panying the transaction, including the participants’ recognition

that the purpose of the drug acquisition was for distribution to

inmates in one of the Commonwealth's penal institutions, as

well as Davis gratuitous statement that he would like to blow

up the state police headquarters in Wytheville.

On October 26, 1973, law enforcement officials raided the

Davis residence. In Davis’ bedroom they discovered two sets of

scales and other drug paraphernalia. A small plastic bag

containing 8 grams of marijuana was found in a jacket. About

fifteen feet outside of the bedroom window, officers discovered

a large plastic bag, similar to the receptacle from which Davis

drew the marijuana sold to Eads, contining 168 grams of

marijuana. Davis was discovered hiding in a closet and told the

Officers they could not search anything except his room.

10a

Faced with this evidence, the Wythe County jury was

obviously impressed by Davis complete involvement in the

business of selling drugs. While not given all the details, the

jury knew from Eads’ testimony that this was not Davis’ first

trouble with the law in a drug related offense. The evidence

clearly allowed the jury to see the petitioner as an active drug

dealer and not new at the business. He was, instead, an

individual fully aware of the nature of his illegal activity, who,

aware of the purpose for which the drugs were being procured,

was in the business of selling drugs for profit. Accordingly, the

jury awarded the petitioner a sentence which it believed was

appropriate for such an offender. The trial court, with a more

detailed comprehension of Davis record of prior drug offenses,

chose to enter judgment on that verdict, and directed the

sentences to be served consecutively. A reasoned decision on

whether the sentences were cruel and unusual must do more

than to take these facts into account; it must accept the facts as

an indication of the nature of the crime committed.

In the petition for a writ of habeas corpus and in argument,

Davis has contended that the sentences imposed upon him are

$0 excessive as to be disproportionate to the crime he commited.

Although we recognize that the Eighth Amendment “proscribes

punishment grossly disproportionate to the severity of the

crime,” see Ingraham v. Wright, 430 US 651, 667 (1977),

Davis’ argument would require us to find cruel and unusual a

sentence for a term of years and a fine, both of which are within

the limits set by statute. Under Virginia law, the distribution of

controlled substance, such as marijuana, and the possession of

the same for distribution were punishable by a term of impris-

onment not less than five nor more than forty years and by a

fine of no more than $25,000. Va. Code Ann., 1974 Repl. Vol.,

3 Davis does not contend that the sentences authorized by the Virginia

statute are on their face cruel and unusual. Rather, he points to the

excessiveness, in his parucular case, of the sentence awarded by the jury and

imposed by the court, relying on Hart v. Coiner, 483 F2d 136 ( 4th Cir, 1973),

cert. den., 415 U.S. 938 (1974). Hence, we should examine the nature of the

factual case against Davis, and, as in any other criminal case, draw all

inferences in favor of the Commonwealth, for we inquire, in a habeas corpus

proceeding, only as to whether there was any evidence at all to support the

judgment of the State court. Williams v. Peyton, 414 F2d 776 ( 4th Cir. 1969).

§ 54-524.101:1; see Va. Code Ann. § 18.2-248.4 Davis was

sentenced to twenty years imprisonment and a $10,000 fine for

each count, punishment well within the limits imposed by the

statute. Hence, we are faced with the question of what is the

proper inquiry into the severity of a jury-awarded and court

imposed sentence, when the challenged punishment is a term of

years and fine which fall within the limits imposed by statute?

We begin our inquiry with the observation that the Su-

preme Court has never found a sentence for a term of years

within the limits authorized by statute to be, by itself, a cruel

and unusual punishment under the Eighth Amendment. Down-

ey Vv. Perini, 518 F2d 1288, 1290 (6th Cir. 1975), vacated for

reconsideration in the light of an Ohio statute 423 US 993

(1975).§

The Supreme Court decisions upon which Davis places

primary reliance clearly is not such a case. Weems v. United

States, 217 US 349 (1910) involved more a question of the

method of punishment than the length of the prison term. The

defendant, an official of the Philipine government, was con-

victed of falsifying public records and sentenced to fifteen years

imprisonment, cardena temporal.

The presence of the sanction cardena temporal prevents the

Weems opinion from stating « holding on a challenge to the

mere length of a prison sentence; it indicates that the decision

deals with the conditions accompanying the service of the

sentence and the disabilities which followed the convict even

after release from confinement.

“If the distribution, or the possession for distribution, of the marijuana

had not been for profit, or to induce the use thereof or addiction thereto, but

merely as an accomodation to another individual, Davis would only have

been guilty of a Class | misdemeanor, § 54-524,101:1. A Class |

misdemeanor is punishable by confinement in jail not to exceed twelve

months, or a one thousand dollar fine, or both. Va. Code Ann. § 18,2-11.

5 In Howard v. Fleming, 191 US 126 (1903), the Court, considering only

the length of the sentence, held that a ten year sentence for swindling by

means of a pretended gold brick was not cruel and unusual.

12a

Cardena temporal was an hispanic sanction, carried over

into Fillipino law from the jurisdiction’s Spanish antecedents.

The punishment involved a sentence of from twelve to twenty

years imprisonment, at “hard and painful labor” with “a chain

at the ankle, hanging from the wrists.” Jd., at p. 364. Moreover,

the imposition of cardena ‘emporal stripped the convict of “the

right of parental authority, guardianship of person or property,

participation in the family council, marital authority, the ad-

ministration of property, and the right to dispose of his own

property by acts inter vivos. . .” (Civil interdiction); it placed

him under surveillance by the state for the remainder of his life,

including getting permission even to change residence, and it

stripped him of the right to hold public office, to vote, or to

receive honors or retirement pay. /d., 364-365.

Thus, the sentence imposed upon Weems constituted more

than a prison sentence and a fine. Rather, as the Court

observed, after the “prison bar and chains [were] removed,”

Weems would go, not to freedom, but to “a perpetual limitation

of his liberty.” Jd., at p. 366. The deprivations incidental to the

imposition of cardena temporal colored the sanction and re-

quired the invalidation of the sentence imposed on Weems.

The loss of political rights, the subjection of the convict to

perpetual state surveillance, and the terrible incidents of the

prison term, including the painful labor in chains and shackles,

shocked the Court into the decision it made. Clearly, the

incidents of cardena temporal, and not the mere length of a

fifteen year prison term for an unfaithful public servant,

prompted the Court to the decision it reached.

This conclusion is buttressed by the later portion of the

Court's opinion in Weems wherein the Court confronts a plea

by the United States to sever the prison term from the incidents

of cardena temporal, leaving the former in force while voiding

the latter. The Court's response was plain and to to the point:

the incarceration was inseparable, under Phillipine law, from

the incidents of cardena termporal, Id., at p. 382, the imposition

of cardena temporal was required by that law, /d., at p. 381;

and cardena temporal was in violation of the Eighth Amend-

ment, /d., at p. 382. Therefore, the decision rests, not on the

length of the prison sentence, but on the incidents of its service

13a

and consequential and life-long restrictions on liberty which

followed the prisoner's release from prison.

Davis has also placed reliance on Robinson v. California,

370 US 660 (1962) in arguing that the Supreme Court has

spoken on the issue of whether a sentence, by its length alone,

may be cruel and unusual. That reliance is misplaced. Robin-

son involved the application of the Eighth Amendment to

“impose substantive limits on what can be made criminal and

punished as such.” Ingraham v. Wright, 430 US 651, 667

(1977). The Court merely held that the Constitution forbade

the incarceration of a narcotics addict as a criminal. Thus, the

decision related to the criminality of the status of an offender,

forbidding the use of criminal sanctions against such individ-

uals, regardless of the severity or leniency of the sentence.

“Even one day in prison would be a cruel and unusual

punishment for the ‘crime’ of having a common cold.” Robin-

son, supra, 370 US at p. 667.

Cc.

Even though the court has never held an otherwise lawful

sentence for a term of years to be cruel and unusual, Davis

correctly indicates that there is discussion in some of the cases

which sets out a doctrine under which a sentence may be set

aside as cruel and unusual if it is “grossly disproportionate to

the severity of the crime.” See Ingraham v. Wright, 430 US 651,

667 (1977).

Davis has not attacked the validity of the statute imposing

the sentence for his crime; he has instead claimed that, in his

particular case, the sentences imposed upon him were cruel and

unusual even though they were within statutory limits. While

some circuits rule that an attack on a sentence with statutory

limits will be considered an attack on the sentencing statute, see

e.g., Pependrea v. United States, 275 F2d 325 (9h Cir. 1960),

cf. Weems, p. 382. this circuit apparently allows a convict to

present a claim in the manner by which Davis has proceeded,

ie. whether the “sentence in the case is so excessive and

disproportionate to the underlying offenses as to constitute cruel

l4a

and unusual punishment.” (italics in original) Hart v. Coiner,

483 F2d 136, 139 (4th Cir. 1973), cert. den. 415 US 938

(1974).

Davis’ contentions as well as the district court's opinion are

based upon an implementation of the analysis followed in Hart

v. Coiner. However, the circumstances here, especially the

imposition of sentences consisting of terms of years within the

periods authorized by statute, make reliance on the Hart

analysis misplaced.

The district court borrowed from Hart the guidelines which

were used in that decision to determine the constitutionality of

the sentence imposed. The guidelines included the nature of

the offense committed, the legislative purpose behind the

punishment, the punishment imposed in other jurisdictions for

the same offense, and the punishment imposed in the same

jurisdiction for other offenses. While these factors may be

proper to consider in certain cases under the Eighth Amend-

ment, we do not believe that Hart meant them to be mandatory

or all inclusive in each such case. Cases contemporaneous with,

before, and after Hart make that apparent.

To begin with, we should note that, like the Supreme

Court, we have never set aside a sentence for a term of years, as

in violation of the Eighth Amendment, because of excessive

length. In Ralph v. Warden, 438 F2d 786 (4th Cir. 1970) we

set aside a death sentence for rape in which the victim’s life was

neither taken nor endangered because the sentence was “so

disproportionate,” p. 793; in Hart v. Coiner we disapproved

imprisonment for life for recidivism for conviction of three

felonies® because the sentence was “so excessive and dis-

proportionate to the underlying offenses,” p. 139; and in

Roberts v. Collins, 544 F2d 168 (4th Cir. 1976) we set aside

five years of a twenty year sentence for assault, because assault

(with no maximum sentence) was a lesser included offense of

assault with intent to murder. Following a guilty plea to assault

* Passing a $50.00 check with insufficient funds, transporting forged

checks in the amount of $140.00 across the state lines, and perjury. See Hart,

p. 138.

15a

as a lesser included offense of one crime charged,” we held

*. , , the Constitution does not sanction the imposition of a

greater punishment for a lesser included offense than lawfully

may be imposed for the greater offense,” p. 170. Other than

these three cases, no case is called to our attention in which we

have awarded relief to a prisoner under the Eighth Amendment

for relief from a sentence within the bounds of a statute. None

of them nullify a sentence of a term of years because of length,

and none modify or limit the cases we analyze below which

were decided under the Eighth Amendment.

In United States v. Martell, 335 F2d 764 (4th Cir. 1964)

we held, in denying relief from a forty year sentence for

kidnapping, that “|w]here the sentence is within the limit set

by the statute, we are barred, except in the most exceptional

circumstances, from any inquiry we might otherwise be inclined

to make,” p. 766 In Stevens v. Warden, etc., 382 F2d 429 (4th

Cir. 1967), although we termed a twenty year sentence for

armed robbery “shocking” because of the circumstances of the

case, we held “. . . the federal courts have no right to review

any sentence of a state court which does not exceed the

statutory maximum sentence which may be imposed under the

laws of the state,” p. 433. In Robinson v. Warden, etc., 455 F2d

1172 (4th Cir. 1972) we held that a fifteen year sentence for

assault with intent to commit murder was not cruel and unusual

because “(t]he 15-year sentence was within the range of

punishment allowed by Maryland law, and the sentence was

not disproportionate to the crime,” p. 1177.

Hart previously mentioned, followed in 1973, accom-

panied by its companion case decided the same day, Wood v.

South Carolina, 483 F2d 149 (4th Cir. 1973), which denied

relief from concurrent five year sentences for making obscene

telephone calls. While we discribed the statutory maximum of

ten years as “startling,” having been increased from six months,

we held the sentences were not “so excessive and dis-

proportionate as to constitute cruel and unusual punishment,”

7? Roberts was charged both with assault and assault with intent to

murder. The maximum sentence for assault with intent to murder was 15

years.

l6a

p. 150. We noted that there were no objective factors

establishing disproportionately, and referred to Hart, but did

not follow the analysis of that case.

After Hart and Wood, in other Eighth Amendment cases

we have followed the pattern of Mariell, Stevens, and Robinson.

In United States v. Wooten, 503 F2d 65 (4th Cir, 1974),

citing Martell, but not Ralph or Hart, we affirmed a two year

maximum sentence for a gun law conviction because “[i}t has

been decided by this court that interference with a sentence

which is within the limitation provided by statute is not, in the

absence of extraordinary and special circumstances, within the

appellate court’s province,” p. 67. In United States v. Atkinson,

513 F2d 38 (4th Cir. 1975) we affirmed sentences of twelve

and four years for young adult offenders without the Hart

analysis.

Yet other cases have distinguished Hart. In Griffin v.

Warden, etc. 517 F2d 756 (4th Cir. 1975) we denied relief

following conviction under the same West Virginia recidivist

statute at issue in Hart. Our only distinction was that the

convictions of felony by Griffin (burglary, breaking and enter-

ing, and grand larceny) “are not at all like those of Hart,” p.

757, but “involve the potentiality of violence and danger to life

as well as property,” p. 757. We then said: “Whether or not

Griffin may be actually deserving of such extreme punishment

is not within our province to decide; we hold only that the

imposition of a life sentence predicated spon these particular

three offenses does not offend the eighth amendment,” p. 757.

The court did not engage in any further distinction of Hart

except its comparison of the offenses upon which the con-

victions were based. In Hall v. McKenzie, 537 F2d 1232 (4th

Cir. 1976) we denied habeas corpus relief on account of a 10-20

year sentence for non-forcible rape of a minor. We held that

Hart had no application because of a “number of factors.’”®

p. 1235. The first factor listed was the severity of the sentence,

referring to the difference between life and 10-20 years. The

® Ralph was held have no application because it involved the death

penalty “which occupies a special place in eighth amendment jurisprudence.”

17a

case also pointed out that its measuring up to one of the Hart

guidelines was questionable (the sentence allowable in other

states), and that this crime was against the person. We held

Hart not determinative and said “{a] more apt precedent is

Wood," p. 1236, which was decided without the Hart analysis

as we have noted.

In view of circuit precedent, we are of opinion that the

scope of inquiry into the constitutionality of a legal sentence for

a term of years need not be as broad as the inquiry used in Hart

when a life sentence was imposed. In an attack for ex-

cessiveness on a sentence for a number of years, any authorized

inquiry of the court should extend only to the consideration of

the seriousness of the offense committed and the application of

the sanction imposed for that offense. We can give no relief

unless the sentence imposed is “grossly disproportionate to the

severity of the crime.” Ingraham v. Wright, 430 US 651, 667

(1977). And in those cases where the challenged sentence is

fixed by a jury within the limits imposed by statute, we afford

special deference to the legislative and jury determination of

the seriousness of the offense, and whether the punishment is

cruel and unusual. See Gregg v. Georgia, 428 US 153, 174-184

(1976). Thus, the sentence will not be considered grossly

disproportionate to the severity of the offense unless there are

“extraordinary and special circumstances” which make an

otherwise valid sentence cruel and unusual. United States v.

Wooten, 503 F2d 65, 67 (4th Cir. 1974).

This rule antedates the Hart opinion and, as we have

shown is unaffected by Hart. Nor is the rule peculiar to this

circuit, it seems to be generally accepted by various courts of

appeal. See United States v. Dawson, 400 F2d 194 (2d Cir.

1968) cert. den. 393 US 1023 (1969); Page v. United States,

462 F2d 932 (3d Cir. 1972); Yeager v. Estelle, 489 F2d 276

(5th Cir. 1973), cert. den. 416 US 908 (1974); United States ex

rel. Sluder v. Brantley, 454 F2d 1266 (7th. Cir. 1972); United

States v. Wilson, 506 F2d 521 (9th Cir. 1974); United States v.

MacClain, 501 F2d 1006 (10th Cir. 1974); Contra: Downey v.

Perini, supra. \n fact, as we have noted, some circuits are more

strict than are we, refusing to allow the convict to argue that the

sentence imposed was cruel and unusual in his particular case,

considering such a claim an attack the sentencing statute itself.