EUGENE G. ADAMS, PETITIONER-APPELLANT, v. RICHARD L. DUGGER, SUPERINTENDENT, FLORIDA DEPT. OF CORRECTIONS, RESPONDENT-APPELLEE.

No. 87-5949. Non-Argument Calendar.United States Court of Appeals, Eleventh Circuit.
August 2, 1988.

Page 1496

R.H. Bo Hitchcock, Hitchcock Cunningham, P.A., Fort Lauderdale, Fla., for petitioner-appellant.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, and TJOFLAT and CLARK, Circuit Judges.

RONEY, Chief Judge:

[1] Petitioner Eugene G. Adams was convicted in a Florida court in December 1977 of second-degree sexual battery, attempted second-degree murder, kidnapping and possession of a firearm during the commission of a felony in connection with the abduction of a 12-year-old girl. During the incident, he shot in the chest with a .357 magnum a highway patrol trooper who survived only because he was wearing a bullet-proof vest. Adams contends that his sentence to consecutive prison terms totalling 144 years for the four offenses is disproportionate to the crimes for which he was convicted, and, thus, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court denied habeas corpus relief. We affirm.

[2] Adams argues that Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), requires the federal court to engage in a proportionality review of his sentence. Adams relies upo Marrero v. Dugger, 823 F.2d 1468 (11th Cir. 1987), cert. denied, ___ U.S. ___, ___, 108 S.Ct. 1235, 1247, 99 L.Ed.2d 434, 445 (1988), which contrasted Solem v. Helm with Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and held that, under the facts of that case, the sentence had to be examined under the criteria established by Solem v. Helm.

[3] We have serious doubts that the Eighth Amendment concerns in those cases would have any application at all to the violent crimes of sexual battery, attempted murder, and kidnapping which Adams committed. In Helm, the petitioner was sentenced under a recidivist statute to life in prison with no possibility of parole for the offense of uttering a “no account” check for $100. In Rummel, the Court upheld a life sentence imposed, pursuant to a Texas recidivist statute, for obtaining $120.75 under false pretenses. The non-violent nature of those crimes, and of the prior similar crimes that triggered the life sentences, was undoubtedly at the crux of the concern for the allegations that the sentences contravened the proscription of the Eighth Amendment.

[4] It would appear to be almost frivolous to suggest that Adams’ crimes deserved the same concern. Clearly, attempted murder of a police officer, kidnapping and sexual assault on a young girl are among the most serious and violent crimes prohibited by modern penal codes. In a pre-Solem v. Helm case, in which a life sentence for an armed robbery that netted but $71.00 was attacked as excessive, we said “the violent nature of the offense alone makes such an attack almost frivolous.” Brown v. Wainwright, 576 F.2d 1148, 1149 (5th Cir. 1978).

[5] In any event, assuming his case does deserve consideration under Solem v. Helm, it appears that the Report of the Magistrate, attached hereto as an appendix, which formed the basis for a denial of relief by the district court, after independent

Page 1497

review, adequately handled the petition.

[6] We simply note a few other cases which put this case in proper context. On similar facts, the Fifth Circuit upheld a 99-year sentence with no possibility of parole for a first-time offender in Passman v. Blackburn, 797 F.2d 1335, 1350-51 (5th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1609, 94 L.Ed.2d 794 (1987). The court noted that the particular circumstances of the armed robbery warranted a severe sentence. The victims were robbed in their home, one of the victims, a 78-year-old man was shot and seriously wounded, and another victim, a 16-year-old girl, testified that Passman sexually abused her. See also United States v. Gourley, 835 F.2d 249, 253 (10th Cir. 1987) (life sentence for possession of a firearm not disproportionate where evidence showed defendant tried to kill arresting officers and had a prior record), cert. denied, ___ U.S. ___, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); Stevens v. Armontrout, 787 F.2d 1282
(8th Cir. 1986) (200-year sentence for second-degree murder upheld); United States v. O’Driscoll, 761 F.2d 589 (10th Cir. 1985) (300-year sentence without parole for 99 years upheld for armed robbery and kidnapping where one of the victims was beaten severely and where the defendant had a prior violent record), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986); United States v. Darby, 744 F.2d 1508, 1527
(11th Cir. 1984) (upholding 60-year sentences for continuing criminal enterprise convictions, noting that offense is “most serious” of all drug-related offenses under Title 21 and that defendants had used threats of violence to carry out their operation), cert. denied sub nom., Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985).

[7] It should be noted that the state contends without contradiction that Adams is eligible to earn gain time, can be considered for parole, and, in fact, has been assigned a presumptive parole release date of August 4, 1995. Although not dispositive, the eligibility for parole was seen as particularly significant by the Court in Rummel.

[8] AFFIRMED.

APPENDIX

EXHIBIT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

EUGENE ADAMS, Petitioner,

v.

RICHARD L. DUGGER, Respondent.

Case No. 87-6513-Civ-NESBITT

REPORT OF UNITED STATES MAGISTRATE

Eugene Adams, a state prisoner confined at the Union
Correctional Institution at Belle Glade, Florida, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
with the aid of counsel, attacking the Constitutionality of his
sentences for sexual battery, kidnapping, attempted second degree
murder, and possession of a firearm, entered on February 1, 1978,
after jury trial in Case No. 77-5761CF in the Circuit Court of
the Nineteenth Judicial Circuit of Florida, at Broward County.

This Cause has been referred to the undersigned for preliminary
consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and
Rules 8 and 10 of the Rules Governing Section 2254 Cases in the
United States District Courts.

For its consideration of this petition, the Court has the
response of the State to an Order to Show Cause, which was filed
together with multiple documentary exhibits.

The petitioner raises two issues, as follow:

1. Whether his sentences totalling 144 years
confinement are disproportionate to the offenses
committed, in violation of the Eighth Amendment.

2. Whether the Trial Court failed to consider the
presentence investigation report and sentenced
him solely

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on the basis of the crimes committed,
thereby denying him Due Process.

These convictions were affirmed on direct appeal. Adams v.
State, 380 So.2d 600 (Fla. [App.] 4 Dist. 1980). The issues of
this federal petition were not raised on direct appeal but were
presented to the Florida Courts in post conviction proceedings,
and the State concedes exhaustion of state remedies.

Adams was convicted of kidnapping and sexually assaulting a
twelve year old girl and then shooting the Florida Highway
Patrolman who came to her rescue in the chest at point-blank
range. The Trooper escaped serious injury or death only because
he was wearing a bullet-proof vest.

Adams first asserts that his four consecutive sentences
totalling 144 years confinement are disproportionate to the
offenses committed, in violation of the Eighth Amendment.

The Supreme Court has announced and the Eleventh Circuit has
applied a three prong test for determining whether a sentence is
grossly disproportionate to the severity of the crime in
violation of the Eighth Amendment. The factors to be considered
are a) the gravity of the offense and the harshness of the
penalty, b) the sentence imposed on other criminals in the same
jurisdiction, and c) the sentence imposed for commission of the
same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277
[103 S.Ct. 3001, 77 L.Ed.2d 637] (1983); McLester v. Smith,
802 F.2d 1330 (11 Cir. 1986); Seritt v. Alabama, 731 F.2d 728 (11
Cir. 1984).

As to the first factor, Adams argues that he was a first
offender and that his crimes, while serious, are “by no means
heinous,” and do not shock the sensabilities of the “average
man.” (Pet. Memo pg. 6). This petitioner kidnapped and sexually
assaulted a twelve year old girl and shot a Florida Highway
Patrolman point-blank in the chest with a .357 Magnum. There can
be few more heinous crimes.

As to the second factor, Adams argues that his sentences are
more severe than those imposed on other criminals in Florida. His
sole basis for this argument is that under the current Florida
sentencing guidelines, not in effect when he was sentenced, the
recommended sentence for a sexual offense for a person such as he
under the circumstances of this case is 12-17 years of
incarceration. (Pet. Memo pg. 6).

The Florida sentencing guidelines are not applicable to this
case, having been enacted after these sentences were imposed and
constituting a statutory scheme of sentencing without eligibility
for parole. Fla.Stat. § 921.001(8). Adams is eligible for
parole and in fact has been assigned a presumptive parole date,
with a scheduled reconsideration.

Moreover, Adams was separately sentenced for each of his four
separate sentences, not just the sexual battery. Even under the
new guidelines he could be sentenced to the maximum on each, for
appropriate cause. Fla.R.Crim.P. 3.701 d. 12.

Finally, a sentence can be imposed outside the guidelines, up
to the statutory maximum, if clear and convincing reasons to do
so exist. Fla.Stat. § 921.001(5); Fla. R.Crim.P. § 3.701
d. 11.

There has been no showing that the sentences imposed in this
case are disproportionate to others imposed in Florida at
approximately the same time for like offenses.

As to the third factor, Adams argues that for the same crimes
he would be sentenced to no more than 16 1/2 years of
imprisonment in Connecticut, 17 1/2 years in Pennsylvania, or 16
1/3 years in Minnesota.

Assuming that counsel for Adams has correctly computed the
petitioner’s possible sentences for his multiple sentences under
the current sentencing guidelines for the three states cited,
which is by no means clear from the data provided, nevertheless,
the application of current sentencing guidelines of these three
states to these four felonies committed before development of the
current practice of comprehensive sentencing schemes is
inappropriate for the same reasons that the current Florida
guidelines are not applicable to this case, as previously
discussed.

Page 1499

Adams has not established that his sentences are
disproportionate under the test of Solem v. Helm, supra.

It should be noted that in his formal order denying Adams’
motion for post conviction relief, the sentencing Judge stated,
in part, that:

The defendant, in this Court’s opinion, is mentally
disturbed (although not incompetent) and is one of
the most dangerous persons ever to appear before this
Court over the last 18 years. He cannot live in
society as he was and is a danger to the safety of
the citizenry.

There has simply been no showing that sentences imposed upon
Adams are grossly disproportionate, or disproportionate at all,
to the severity of his crimes.

The second claim of this petition is that the Trial Court
failed to consider the presentence investigation report and
sentenced Adams solely on the basis of the crimes committed,
thereby denying him due process.

In his first state motion to vacate proceeding, Adams
challenged the validity of information contained in the
presentence report. An evidentiary hearing was held, and the
motion was denied on its merits, with the Judge stating that he
found no material factual errors in the report. (TR/65-67).

In denying the motion to vacate, the trial Judge made oral
findings, which included the following remarks:

THE COURT: Here’s why I ordered it: Because I’m
required to order it. I mean I was ready to sentence
Mr. Adams right there when the jury came back and
said guilty. I didn’t need a presentence
investigation.

Mr. Adams was going to get the longest sentence that
I could think of. Anybody that tries to kill a police
officer with a .357 magnum right at point blank range
and sexually batters a little 12 year old girl and
kidnaps her doesn’t deserve to walk the streets and
Mr. Adams was going to get the maximum sentence that
I could think of.

The reason for the presentence investigation report
is because, as you know, the Florida rules of
criminal procedure require anybody who has never been
in prison before or never been convicted of a felony
before is entitled to a presentence investigation as
long as you are thinking of putting him in jail.
That’s why it was ordered and I did keep an open
mind to see if it could convince me otherwise but
really the presentence investigation had really no
basis whatsoever on my decision. That’s about all I
could tell you.

My decision was based on the bizarreness of the case
and not what was in the presentence investigation. In
any event, I just don’t see that much discrepancy. I
can’t believe the witness — what is her name? Mrs.
Strickland? She says she didn’t even talk to Miss
Lachman. I can’t believe Miss Lachman is going to go
ahead and make up a whole colloquy between her and
Mrs. Strickland if she doesn’t even talk to her. That
is actually ridiculous so I couldn’t accept that.

You know, I just don’t see that there is much
discrepancy in the statements that were made. I find
Miss Lachman, and what you claim to have been said as
far as the prior incident which was never brought to
trial because of supposedly a statute of limitations
problem or whether it was for something else I don’t
know, really had no basis upon my sentence, and based
upon what I’m saying I’m just going to deny the
motion. (TR/64-65); (Emphasis added).

On appeal from the denial Adams argued in part that his
sentences were unconstitutional because the Trial Court failed to
consider the presentence investigation report prior to the
sentencing. The denial was affirmed, per curiam, without
opinion. Adams v. State, 461 So.2d 952 (Fla.[App.] 4
Dist. 1985).

Adams was sentenced on February 1, 1978. At that hearing the
Judge informed Adams and his counsel that he would consider any
evidence or statements they wished to present. When counsel said
he had nothing to say, the Court specifically addressed the
petitioner, who also declined

Page 1500

to make a statement. The prosecutor said he would rely on the
presentence investigation report. The Judge then, prior to
imposing sentence, said that he had reviewed the presentence
investigation report. (TR/6).

At the evidentiary hearing the Judge explained that he ordered
the report because it was required by law and stated that he did
keep an open mind to see if it could convince him that Adams
deserved other than a maximum sentence, but that the report
ultimately did not affect his decision.

The Supreme Court has recognized that: . . . in
noncapital cases, the established practice of
individualized sentences rests not on constitutional
commands, but on public policy enacted into statutes.
Lockett v. Ohio, 438 U.S. 586, 604-05
[98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973] (1978).

Florida law requires a presentence investigation prior to
sentencing in non-capital cases. Fla.R.Crim.P. 3.710. The
Constitution does not. Lockett, supra. This issue raises no
federal Constitutional issue, but would fail on the merits if it
did, because the record clearly indicates that the Court did
consider the report prior to sentencing Adams.

No showing having been made that Adams is in custody in
violation of the Constitution or laws of the United States, it is
therefore recommended that this petition for writ of habeas
corpus be denied.

Objections to this report may be filed with the District Judge
within ten days of receipt of a copy of the report.

Dated: September 8, 1987.

/s/ Charlene H. Sorrentino
__________________________
UNITED STATES
MAGISTRATE

cc: R.H. Bo Hitchcock, Esquire
Joy B. Shearer, Asst. Atty. General.