Gary Wickham v. Denis Dowd

HU WICKHAM, Gary Appellee, DOWD, Appellant.

Denis No. 89-2580. Hawke, Stephen Mo., City, D. Jefferson appellant. Appeals, Court of United States

Eighth Circuit. Short, Mo., Michael L. City, Kansas appellee. April 1990. Submitted Sept. Decided 1990. LAY, Judge, Before Chief Rehearing En

Rehearing and Banc BEAM, Judges. MAGILL and Circuit Dec. Denied

MAGILL, Judge. Circuit Dowd, Superintendent Denis Center, Ozark appeals Correctional the dis- grant Gary trict peti- Wickham’s corpus tion for writ of pursu- habeas filed 2254(a). ant to 28 U.S.C. The district § granted court petition Wickham’s on the ground imposition that the state court’s special probation condition that he not alcohol, consume proba- revocation of his condition, tion for the of that violation subsequent imposition previously of a sus- pended twenty-year sentence had the effect sоlely him because he was an alcoholic, eighth amend- violation ment, applied through to the states argues fourteenth amendment. Dowd granting petition, Wickham’s the district court announced a new rule and it retroactively in Teague violation Lane, We (plurality opinion).

agree and reverse.1 I. pleaded

On March felony leaving the guilty D to a Class accident and a scene of a motor vehicle burglary in the first felony of Class B offenses carried a maxi- degree. The two twenty-years im- penalty mum combined guilty-plea proceeding, At the prisonment. acknowledged that he had been leading the events to his drinking when suspend- The state court arrest occurred. that, reaching argues assuming principle, 1. Dowd also we are barred from new rule principle, did violаte the rule of the rule announced the district the merits eighth Penry Lynaugh, -U.S. -, there was no amendment violation. Be- court. 2934, 2952, cause we hold that the district court violated the 106 L.Ed.2d 256 automobile, probation his or drove an placed and drink sentence imposition of ed the have years and he would for five be revoked supervised probation would him on After con- special twenty-year conditions sentence. subject regular and serve the consuming from chose the family, his Wickham including sulting that he refrain with beverages. any possessing alcoholic alternative. second if he Wickham that court told The state 20, 1984, was January Wickham On impose it would probation, his violated .29. His level was again alcohol arrested. twenty years. of maximum sentence hearing on probation At his revocation 1983, again 25, Wickham was August On 1984, Wick- 24, court found that April responded to his police when arrested condition of his again violated the ham had had telephone call that he mother-in-law’s alcoholic not consume that he probation of her car.2 A the windshield broken proba- his beverages. The court revoked his alcohol level breathalyzer gauged tion, suspended his sentence reinstated and probation-revo- his He admitted at .22. twenty years. of consumed alco- he had hearing that cation court,4 in state being denied relief After that Wickham found hol. The state court petition for writ habeas filed a Wickham pro- conditions of his had violated three The dis- court. corpus in federal district through carrying with bation. Instead his petition, vacated granted trict his sen- imposing the maximum threat of its sentences, and ordered consecutive state however, Wickham tence, the court offered consecu- him to two to resentence option, Wick- the first options. Under two (the option original five-year sentences tive immediately ham would be sentenced 1)5 twenty-year ground # in the five-year sentences two consecutive Wick- had the effect sentence option, the second penitentiary. Under his status as an solely because of ham the maxi- be sentenced Wickham would alcoholic. twenty-years3 impris- punishment of mum However, two offenses. onment for the II. suspend the sentence the court would only to subject not probation him on place A. already ‍​‌‌​​​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌‌‌​​​​​‌‌‌​​​​​‍the court had same conditions district court an- argues that the conditions, Dowd including imposed but additional applied it retroac- rule and a new nounced refrain daily and he take antibuse for petition tively granting Wickham’s vehicle at driving motorized In order to corpus. deter- writ habeas Wickham was except job on his site. time the district court announced mine whether chose the second if he then informed that identify the rule we must first one subsequently took even alternative probation since Wickham’s al- driving ultimately a condition arrested for was 2. Wickham caused behavior. coholism while intoxicated. probation that a was twice warned Wickham imprisonment. result in his would violation Nevertheless, originally the maxi- stated that The state court successfully did not twenty-two years. state- penalty This mum was program, complete an treatment alcohol subsequently and the court ment was error operated a motor vehicle alcohol and drank its mistake. corrected from work. Given these than to and other circumstances, twenty-year sentence part Appeals 4. held Missouri Court of Sincup punishment. v. cruel and unusual that: (Mo. Blackwell, banc 608 S.W.2d statu- was Wickham’s sentence within 1980). burglary leaving tory the scene limit State, (Mo.App. v. 733 S.W.2d with- 558.011. Punishment § of an accident. 1987). statutory unusual is not cruel and limits August court’s attacks the district the cir- 5. Dowd it is so unless specific Wickham to order to resentence sense of it shocks the mоral cumstances that Whitehead, with inconsistent as intrusive and [persons]. v. State all reasonable reverse the district (Mo.App.1984); order. Because we State earlier S.W.2d petition, Walker, grant we need (Mo.App.1981). Wickham’s 618 S.W.2d necessarily this issue. prohibition was reach Here the alcohol McKellar, (1990); Butler The district court L.Ed.2d 415 upon which it relied. — -, cruel and unusual held that “[i]t sentences to double (1990); ishment Penry Lynaugh, [Wickham’s] powerless to con- doing what he was U.S. -, 2934, 2952, 106 L.Ed.2d trol, gave the state court and the choice (1989). solely punishing him had the effect [him] argues that the district court’s alcoholic.” he was an grant petition for writ of of his habeas Dowd, 88-0233-CV-W-5-P, slip op. at No. corpus the creation of a new did not involve 1989). (W.D.Mo. 9,May The district attempts rely on two rulе. Wickham reasonably read to opinion can court’s First, a state sentence well-settled rules. (1) probation condi- imposing hold that: punishment constitutes cruel and unusual upon a known alcoholic that he cannot tion disproportionate that it alcohol, (2) if it is so shocks sentencing the consume and probation con- violating that persons. alcoholic moral conscience of reasonable for pun- Helm, 290-92, cruel and unusual dition constitutes See Solem v. U.S. they have the effect of ishment because 3009-11, 77 L.Ed.2d 637 103 S.Ct. solely an alco- punishing him because he is (1983).7 Second, impri- a state law which holic.6 merely his sons a defendant because of inflicts cruel and un- status as an addict question therefore arises whether shocking punishment, thereby a new rule. In announced usual the district court Supreme Court Teague, plurality persons. of the moral conscience of reasonable crimi rules of California, held that new constitutional See Robinson v. U.S. applicable not be procedure nal will 82 S.Ct. 8 L.Ed.2d 758 final before have become those cases which rules, Relying on these two Wick- Teague, announced. the new rules are his argues ham that at the time conviction defined a new at 1069. 5.Ct. amendment, final, eighth became ground or as one which breaks new rule through to the the four- states or obligation on the states imposes amendment, prohibited the state teenth In Id. government. at 1070. the federal (1) upon imposing from: a known words, a new rule “a case announces other probation he a condition of alcoholic if the result was not dictated by precedent alcohol, (2) revoking and not consume convic existing at the time the defendant’s probation impos- defendant’s alcoholic final.” Id. origi (emphasis tion became violating the condition ing a sentence for — Smith, nal); Sawyer see also U.S. he not drink alcohol. 2822, 2824-25, -, -, 110 S.Ct. Parks, rules identi- While the two well-settled (1990); 111 L.Ed.2d 193 Saffle — 1257, 1260, general support lend -, by fied Wickham U.S. Furthermore, district court we note that the construes the district 6. No matter how one directly pun- not find that Wickham was did opinion, not on the exact the focus is In- as an alcoholic. ished because of his status stead, punished. For manner in which Wickham imposi- the district court found holding exаmple, not based the district court’s is condition, probation revocation of tion of the from upon whether stemmed twenty-year probation, imposition of the condition, probation imposition revo- of the punishing him for his sentence had the twenty- effect probation, imposition of the cation of or status as an alcoholic. ten-year year instead of the alternative sentence focus offered the state court. The for The Solem Court identified three criteria form, punishment, is on whether the in whatever determining proportionality of sentences: (1) gravity had the Wickham because comparison of the offense effect of Therefore, (2) compar- penalty; as an alcoholic. that is our his status with the harshness of the purpose determining imposed for the focus of the sentence with the sentences ison If the the district court announced a new rule. or similar of- on others convicted of same eighth jurisdiction; a com- district court’s rule that amendment same fense in the imposed probationer parison a known alcoholic sentence with those is violated when jurisdic- consuming "punished” offense in other alcohol constitutes the same or similar Solem, S.Ct. at 463 U.S. at a new it is irrelevant what form the tions. took. 3009-11. ishment us- punished for an addict is ed whenever by the district reached to the conclusion fact, drug to which he is addicted. ing a court, suffice to show fact does not this open, question explicitly left that the Court by the district rule annоunced one is not noting ... statute Sawyer, “[t]his “new.”8 See court was not use of person for the punishes a at -, which pos- narcotics, sale or purchase, for their reasoning of the well- court extended disorderly be- session, Wickham, or for antisocial there principles cited settled resulting their administra- The havior case. a difficult by presenting us with which deal with a statute tion.... that while [W]e Court noted Saffle addiction a of narcotics the ‘status’ an earlier hold makes overruling of “explicit 666, 82 S.Ct. at rule; offense.” Id. it is more a new ing creates no doubt by the district announced 1420. The rule we an ... to determine difficult by not Robinson court was dictated a decision extends rule nounce a new when existing at the controlling precedent Saffle, cases.” other prior reasoning of our final.9 conviction became guide making to time Wickham’s 1260. As 110 S.Ct. at deci- Therefore, if district court’s even decision, must refer to the we difficult rule that the writ, deterrence sion to extend well-settled purpose of underlying eighth prohibits Id. amendment violations. constitutional of state court of his status interpre merely defendant because “reasonable, Therefore, good-faith cor- drug present case was by a addict to made existing precedents tations of rect, inescapable that it is nonetheless upset “even not be must state courts” existing interpretation of contrary to state court's be they to though are shown lan- 1217; given the in 1983 was reasonable Butler, at law 110 S.Ct. later decisions.” guage of Robinson. at 1260. 110 S.Ct. Saffle, see also is also instruc An not examination court did arguing that the district In Saffle convic At the time the defendant’s rule, tive. claims new announce a final, it was had become controlling tion in bound the state court was Saffle bar relevant that the state could not settled conviction became authority at the time being presented from mitigating evidence attention to directs our final in 1983. He penalty phase of during the and considered Robinson, Supreme Court in which the at 1261 Saffle, 110 S.Ct. capital trial. imprisons law which held that “a state a[n 586, 605, Ohio, (citing 438 U.S. criminal, has Lockett though he as a even addict] 2954, 2965, L.Ed.2d 57 98 S.Ct. drug within any narcotic never touched (1978)(cited plurality opinion), portion, any irregular guilty the State or been Oklahoma, 113- 455 U.S. there, Eddings unusual a cruel and inflicts behavior 869, 876-77, L.Ed.2d 102 S.Ct. punishment in violation [Constitu- sought apply to (1982)). The Robinson, defendant at U.S. tion].” jurors be allowed to base added). holding in rule that must (emphasis upon sympathy sentencing decisions may not a state dictates that mitigating evi hearing the they of his feel after merely defendant because punish a Although 1261. Saffle, dence. 110 S.Ct. at rule does an addict. This status as sought apply is violat- the rule the defendant eighth amendment dictate fact, facts of their only application rule to the on of that Wickham relies to the extent 8. — at -, 110 S.Ct. at 2824. Sawyer, eighth that a case. U.S. general standard amendment it is so if violates the Constitution the moral con- that it shocks arguendo, inter- Accepting, the district court’s persons, States, we conclude that of reasonable science Sweeney F.2d v. United pretation precedent any binding Cir.1965), (7th Oyler, he has identified State v. 92 Idaho district court’s would us that the which convince that ‍​‌‌​​​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌‌‌​​​​​‌‌‌​​​​​‍neither P.2d 709 we note adopt at this level compelled not a new rule. As the rule rule was court to case subsequently generality, be ren- rule test would the district court announced holdings meaningless petitioners could al- Circuit and because the Seventh dered abstract, well-settled, binding in Mis- identify are not ways albeit Idaho some only argue souri. claim is based rule and that their

1H5 “ closely petitioner places of a if it ‘certain related the well-established kinds of it was a new primary, private beyond Court held individual conduct Saffle precedent rule. settled diсtated power lawmaking of the criminal au ” ” consider; “what jurors may the rule proscribe,’ Teague, thority “how” dictated urged by the defendant States, Mackey v. United (quoting (em- Id. jurors may the evidence. consider 667, 692, 1160, 1180, phasis original). (1971) (Harlan, J., concurring)), L.Ed.2d prohibits imposition or if it of a certain analogous This case is Saffle. type for a class of defen adopted by rule states dants because of their status or the nature cannot be that a alcoholic known effective- Sawyer, at -, of their offense. violating special ly punished proba- Second, 110 S.Ct. at 2826. a new rule will he must refrain tion condition that retroactively applied it if announces a alcohol, no matter consuming how reason- proce “new ‘watershed of criminal rule[] might able the condition otherwise be. The necessary dure’ to the ... fundamental Supreme Court, precedent of the settled Id. proceeding.” fairness of the criminal case, urges controls this which Wickham (quoting Saffle, 1263; Teague, defendant cannot be dictates that a 1075). 109 S.Ct. at an addict. The ished for his status as district court’s rule dictates what act The by new rule announced the district may setting probation court not consider in protect private court does not primary, indi- (i.e., revoking probation conditions and consumption vidual conduct. The of alco- alcoholics). drinking by The settled rule by pro- hol an alcoholic convicted felon on what status only dictates a court not certainly type primary, bation is not the оf (i.e., alcoholism). Although relat- consider private Supreme the conduct which ed, precedent the settled does not dictate referred. by Rea- urged the result the defendant. Furthermore, pro- the rule does not new sonable minds could differ over whether imposition category hibit the of a certain of reasoning requires the of the punishment probationer’s because of sta- adopted by rule the court. There- district pro- merely tus as an alcoholic. The rule fore, we refuse to invalidate probation hibits the revocation of and the reasonable, good interpreta- faith suspended imposition of a sentence on Butler, See precedent. existing tion of probationer’s basis of an alcohоlic decision S.Ct. at 1217.10 We hold that the district proba- in violation of his to consume alcohol court announced a rule. Penry, See tion condition. 109 S.Ct. at (if “Eighth prohibits Amendment B. mentally persons of retarded execution Having decided that the district court followed, regardless procedures ... of the the creation a new we announced of ex- such a rule would fall under the first must determine whether rule falls general ception to the rule of nonretroactiv- exceptions within one of two narrow “to ity applicable to defendants and would be general principle that new rules will review”). on collateral not be on collateral review.” Saf fle, First, prohibit not at also does S.Ct. a new rule The new rule category punish- оf retroactively applied imposition will be a certain for the benefit (1985),] prosecutorial invalidated 10. We also note that neither the district court L.Ed.2d which, any precedent impermissible Wickham identified argument nor under the final, -, Wickham’s the time conviction became Sawyer, U.S. at Amendment.” subsequently dictated the rule observation, announced part Based in on this fact, formulating opin- court. In its rule advanced Court concluded that the ion, the district court did not cite even one by prior prece- defendant was not dictated directly controlling support case to its rule. As dent. We draw the same conclusion from the Sawyer, Court noted in it is “be- any controlling authority compelling the lack of yond question prior that no cаse to Caldwell [v. rule. district court’s Mississippi, 472 U.S. dispro- prohibition of Eighth Amendment of the offense. the nature ment because “new sentencing is not a rule” (1) portionate from: courts prohibits new rule prohibiting dispro- The rule Teague. proba- alcoholic imposing upon a known in Solem sentencing, established alcohol, portionate he consume not tion condition Helm, (2) revoking probation Wickham’s predates condition, L.Ed.2d violation probationer’s probation- conviction. of the not because of nature burglary and (i.e., first-degree er’s offense state sentence that his Petitioner asserts accident). id. See of an leaving the scene burglary ostensibly for twenty years, Georgia, 433 U.S. (citing Coker accident, was leaving the sсene judge because by the state actually doubled rape), imposed for (death penalty cannot requiring condition probation he violated a rule a new where to illustrate instance alcohol. Petitioner that he abstain category of imposing a certain prohibits not urges the increased persons because punishment on a class offense, consequent- underlying Therefore, offense). the nature of their punishment is ly his total applies. exception aspect of the first no to his crime. apply ei- exception does second analysis of the district majority’s by the dis- rule announced The new ther. The district holding court is erroneous. the funda- necessary to court is trict proportion- specifically addressed proceeding. fairness of mental twenty- and found ality of the sentence the determination not involve The rule does “totally unreasonable.”1 year guilt or innocence. of a defendant’s question this difficult than confront Rather until relevant fact, is not application its asserts that majority instead directly, the has ob- been a defendant’s conviction after rule and establish a new seeks to of the district tained. Because violation The of the claim. review Teague that bars seriously di- not rule “would new court’s a “new definition of majority’s overbroad obtaining accu- of the likelihood minish all collateral Teague forecloses rule” under determination,” that conclude we rate fortuitous petitioner unless review princi- court “did not establish district al- to an allege facts identical enough to second ex- ple come within that would ready-decided claim. 1218. Butler, at 110 S.Ct. ception.” noted once that Alexander Hamilton Habeas Cor- had described Blackstone III. of the British the “Bulwark pus Act as judgment Accordingly, we reverse 84, at Federalist No. The Constitution.” peti- granting Wickham’s 1892) (A. (citing 4 W. Black- Hamilton corpus. for writ of habeas tion *488). majori- If the stone, Commentaries application Teague, in ty is correct its dissenting. LAY, Judge, Chief corpus has become of habeas the writ respectfully dissent. I the American Constitu- writ of toothless the mark. tion. misses majority opinion The plurality of the Teague, on a decision majority circumvents The view adopted Harlаn’s that Justice deciding under Court merits of this case not procedure should rules of criminal Teague v. new non-retroactivity principles on collateral re- 1060, applied retroactively 103 be

Lane, 288, 489 U.S. adopted this view The Court with (1989), view. petitioner L.Ed.2d that finality in ensuring purpose claim disproportionate sentence raise a resulting cases, believing that the proceeding. in a federal habeas they Amendment present mitted that violate issue in the "[T]he 1. The court stated: this case.” 15-year Wick 5-year maxi- under circumstances and is whether the matter 88-0233-CV-W-5-P, Dowd, op. slip No. ham v. imposed the state court were sentences mum 9, 1989). (W.D.Mo. May at grossly disproportionate the offenses com- so

1H7 660, 82 S.Ct. California, son serve to would still habeas review scope of that 1417, which held established L.Ed.2d 758 violating courts deter solely person punish A “new rule” could procedure. a state of criminal rules Id. at as one that is defined procedure person’s status. because of of criminal a new obli- imposes ground held new “breaks at 1420. 82 S.Ct. Govern- Federal or the gation on States narcotics addic person A at Teague, 109 S.Ct. ment.” in accord with any conduct tion absent not dictated result was if “the rule exists treatment. and inhumane cruel status was the defen- time existing at the by precedent emphasized that even one Id. The Court (em- Id. final.” became dant’s conviction engaged person is not jail for a who day in original). phasis in may be unconstitution criminal conduct Texas, Id.; also Powell see of habe- U.S. a writ al. granted district court principles 20 L.Ed.2d 88 S.Ct. corpus petitioner holding did Thus, of Solem. Estelle, in Rummel v. Thereafter, summa- A succinct new rule. not involve ‍​‌‌​​​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌‌‌​​​​​‌‌‌​​​​​‍100 S.Ct. U.S. illustrates law Eighth Amendment ry of sentence, upheld a life (1980), the Court analysis. majority’s in the the flaws repeat imposed on a offender parole, with doc- Eighth Amendment The evolution crimes, cast doubt and of non-violent sentencing concerning proportionate trine ap- analysis would proportionality States, United Weems v. begins with Solem, .In how- noncapital ply to crimes.3 (1910).2 L.Ed. 793 349, 30 S.Ct. U.S. ever, that doubt removed the Court confining a person held that The Court can so sentence ruled that a criminal chains of hard labor years fifteen noncapital disproportionate, even grossly treatment inhumane cruel and Eighth Amend- eases, violates the it fraud, “it is noted that simple crime of at ment. ... justice precept ap- it would Court indicated 3008-09. The proportioned graduated should be circum- only in narrow ply the doctrine Id. offense.” that a life stances, Solem found but de- subsequently and commentators Courts an alcoholic parole for without rule on established a whether Weems bated unconstitu- fraud was check of convicted sentencing directed or was disproportionate 303, 103 Id. at disproportionate. tionally inflicted. of to the nature at 3016.4 S.Ct. v. Helm: Extension Comment, Solem See Proportionality Eighth Amendment appeal Solem, various courts of Since of Punishment, 69 Noncapital to Review sen- petitiоner’s a reviewed habeas have 775, n. 8 776 Iowa L.Rev. commit- the offense as it tence relates was ted, to determine Amend in development The next stan- disproportionate Robin grossly doctrine was proportionality ment present case interesting contrast proportional- is an a 4. It with was confronted 2. The court court, holding Helm received that 323, in Vermont, that our 12 U.S. v. 144 ity in O’Neil claim sentence, observed: (1892), 693, but dismissed L.Ed. 450 36 Helm, years old when he 36 who was grounds. at See id. procedural case on sentenced, The professional criminal. anot is J., (Field, dissenting). at 699-700 12 S.Ct. alcohol, and an addiction record indicates holding job. difficulty His in consequent argue with- "one could The Court stated that 3. any violence no instance record involves any оf this decision out contradiction fear pos- Incarcerating life without him for kind. concededly crimes classified Court that unlikely to advance is sibility parole is, felonies, punishable as classifiable any system justice in goals of our imprisonment in a significant terms of State way. Helm nor the Neither substantial actually length of the sentence penitentiary, the clearly pursue need- incentive an will have prerog- legislative purely imposed a matter is problem, or for his alcohol ed treatment 274, Rummel, S.Ct. at 445 U.S. 100 ative.” program of rehabilitation. other 775, Comment, 1139, 44. supra, 22, & n. 781 n. Solem, S.Ct. at 3013 see 103 at 297 n. 463 U.S. 1118 final, See, e.g., which United in before his conviction became

dard set out Solem.5 Terrovona, (9th 767, v. prevent 785 F.2d cannot considera- States held thаt courts denied, 476 U.S. 1186, Cir.), cert. 106 S.Ct. The mitigating circumstances. tion of 2926, (1986); United States requiring 91 L.Ed.2d precedents, Court found these Ortiz, 742 F.2d 712, (2d Cir.), cert. v. prevent courts not to of miti- consideration denied, 573, 469 U.S. circumstances, dictated a rule that gating Maggio, v. (1984); Whitmore L.Ed.2d 513 provide, courts must request, an af- (5th Cir.1984). 230, 233 This court 742 F.2d may jury con- firmative instruction See, many cases. Solem applied in has mitigating evidence. sider Buckner, 894 F.2d e.g., States v. United that, Penry teaching seems to be The States v. (8th Cir.1990); United rule, a rule must extend to constitute Milburn, 836 F.2d (8th Cir.), cert. existing simply further than to recast denied, 1222, 108 S.Ct. light facts. The exist- principle of new Gunter, (1988); Tyler Penry principle was that ing bedrock Cir.1987). (8th I fail to see F.2d juries they can consid- must be aware universally ap uniformly and how a rule mitigating capital case. er evidence new rule. рlied years can be a for seven Penry change The Court did not proportionali majority The dismisses the merely applied it in a different but footnote, 8,n. ante ty argument in a short situation. binding precedent. The holding there is no majority holds that the district court The Smith, Sawyer majority’s reliance on Thus, it finds seeks to extend Robinson. — U.S. -, 111 L.Ed.2d Teague applicable and holds that such an Saw totally misplaced. The is create a new rule. This extension would yer Court held that a court not circum analysis totally misreads Teague by claiming a principles vent the holding. court did not The district general, principles of violation of abstract controlling. Robinson opinion find Id. 110 S.Ct. at 2832-33. law. cited Robinson single in a initially that “the test would be observed [new rule] statement, restating petitioner’s argument; gen meaningless if at this level of that was not the district court’s hold- but however, Wickham, Id. erality.” ing. Robinson easily distinguishable on basing “general princi his claim on is not Fundamentally, its facts and law. both law; nothing he asks for more ples” of It Robinson proportionality is not a case. proportionality analysis we than the same person cannot be simply holds that a routinely make under Solem. for “status.” ished in Penry Ly The Court’s decision majority does prohibit for the conduct (1989), directly refutes the ma alcoholic, irrele- an but this observation is capi jority’s analysis. Penry, convicted of vant. The district court addresses the evil court, objected tal murder a state to eighth disproportionality under jury trial court’s refusal to instruct “doubling petitioner’s sen- amendment: give that and to it could consider effect doing powerless tence for to what he was mitigating in determining evidence sen analysis, Solem control.” This invites Penry tence. relied on two Court Oklahoma, urges that Rob- Eddings v. Robinson. Wickham decisions, 455 U.S. inson 104, 869, (1982), argument because supports 102 71 L.Ed.2d 1 and his S.Ct. Ohio, attempted punish to his sta- Lockett v. ‍​‌‌​​​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌‌‌​​​​​‌‌‌​​​​​‍98 438 U.S. S.Ct. court alcoholic) (as rather than the under- 57 L.Ed.2d 973 both decided tus an penal- three-part and the harshness of the 5. The Solem Court established a test offense of the determining propor- (ii) imposed ty; for whether a sentence is crimi- the sentences other (iii) tionate: jurisdiction; the same and nals in imposed sum, for commission of the proportionality analysis sentences a court's un- jurisdictions. Eighth guided crime in other der the Amendment should same criteria, Solem, (i) by objective including gravity 463 U.S. at 103 S.Ct. at 3009-10. 1H9 it. probably do by fear won’t you merely argument is This lying offense. it got your to set mind to just disproportionality supportive You’[ve] of Wickham’s alcohol, his claim because clearly presents cannot handle you that claim. Wickham totally dispropor- you’re going get to do, a sentence know disputing you you as if underlying offense.6 you’re going to tionate to You know fight. in a you’re You know raise hell somewhere. court the trial discloses The record you and know going get to trouble it stated occasions on numerous somewhere, right isn’t going you’re underlying Wickham, not for ishing Mr. Wickham? In the crime, being alcoholic. for but judge hearing, when the sentencing initial Yes it is. WICKHAM: estab- sentence and Wickham’s suspended your mind any doubt there COURT: Is conditions, court probation lished you if violate happen you to what will commented: probation? this drinking prob- Now, you have COURT: No. WICKHAM: hide it. trying to no need lem. There talking about We’re COURT: you’re you If don’t it. We all know it’s a I twenty years, so know maximum And the it. know that doesn’t only one hoe, you tough to Mr. row but is, attorney your and aware is also to You’ve come don’t have choices. prob- very is, hard society that it’s and if here. Now your rope the end of just to it addicted You’re lem to control. yourself to willing prove to you’re not any- drugs or to are addicted people like you can- yourself that your mind and set is, now it’s problem thing But else. alcohol, you vio- then drink not live and addiction very expensive becoming a “Well, I telling me you are and late this to. you if want whip it you can you, and accommodate will just can’t do it.” So I care to, nobody, I don’t you want If don’t out you I take will you Mr. Wickham. what you go to and many programs how can, I long as society whipped it do, going get nobody’s you You’ve society. you in can’t have we motivating yourself. And you but 6. The second asserts this The final prohibits tionate Appeals, Southern 463 U.S. cruel “[p]unishment within State, herein was S.W.2d tations tences See tutional, R.S.Mo. (Mo.Ct.App.1984) ing Even tence the abstract unconstitutional the crime committed. moral State v. § though of even permitted for under 569.160 may L.Ed.2d 758 As noted sentences that Solem Court Hutto sense of all clause unusual page of Wickham’s sentenced not, since cases сannot question California, Whitehead, S.W.2d sentencing the circumstances (Mo.Ct.App.1981) Petitioner single argument: R.S.Mo. in some in the unless § District, the 558.011 the Missouri reasonable men.” statutory to the maximum day State v. abstract, within recognize are underlying offenses. Eighth See Solem circumstances. (1978); it is (Mo.Ct.App.1987), in S.W.2d Finney, be As noted brief R.S.Mo. prison statutory so considered ]. limits Amendment L.Ed.2d Walker, 618 be dispropor- succinctly § v. Court of unconsti- it shocks may 577.060 Helms, (1979). is not a sen- limi- sen- [cit- 637 See be in Brief of 89-2580WM. 251 ty, and transgress Eighth cepts 429 against Thus, recognizes within tional muster spondent's Trop ^[598] alone, mitted that examined analysis. petitioner's grossly sentences ment Add., posed (Addendum respondent’s analysis mark (1976) contrary Appellee allow on statutory guidelines does properly L.Ed.2d decency.” [quoting Estеlle Amendment Dulles, cruel 97, 102, dignity, A-8) (emphasis (8th concluding "imposed petitioner Rather, all the circumstances today’s brief, sentence and Jackson to they said Circuit progress and unusual "evolving to the assertion 97 S.Ct. 285 civilized circumstances sentencing violate "broad the District to 1968) were prohibits sentencing aof Wickham determine standards 86, 101, added). to standards, humani- State (plurality ]. unreasonable. the sentences maturing society.” Bishop, the offenses punishment also brief, ^[290] Eighth idealistic penalties that Court pass not, made surrounding Amendment Amendment The District prohibition v. 50 hereinafter Dowd, this case." petitioner 404 opinion). properly standing Gamble, constitu- decency L.Ed.2d Amend- were so com- F.2d con- No. the im- re- you society you kinds hell out of and that’s wherе you shown that cause all drink, go, have to Mr. Wickham. As far as I’m you to be when raised concerned, you kept to somebody. are there you’re going to kill It’s a your you the rest of natural life because you yet. you miracle And so haven’t if function, you danger cannot are a to rules this com- can’t to the conform beings your fellow human out on Missouri, munity and the State of streets of the state Missouri. you’re telling youme don’t need to be a society going and I’m to member this 235], [T. Now do put you away Mr. Wickham. judge never mentioned the offenses you that? understand had for which Wickham been convicted.7 I do. Yes WICKHAM: majority adopts simplistic view going play any We’re COURT: court, probation, condition of as a going I’m not to take games. more required to abstain from alcohol you. explanation or You excuse drinking is related to Wickham’s because away sign you either do it or life criminal conduct. This was the view of the pen because we twenty years in the Appeals denying Missouri Court of Wick- you’re going you need out here don’t if State, appeal. ham’s direct Wickham v. me, everybody tells Now drink. (Mo.Ct.App.1987). 733 S.W.2d 794-95 acquainted everybody people who are but superficial respect, With all due this is a enforcement, Sheriff, you, with law analysis. made clear that a The state court good you when you’re worker sentence, fair and reasonable at least you only cause trouble when work and court, eyes five-year consec- was two problem you get drinking. And it’s a utive sentences. If this sentence had been you your- nobody can with but work suspended placed pro- and the defendant easy. nobody says it’s But self. And bation with the condition that the defen- ‍​‌‌​​​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌‌‌​​​​​‌‌‌​​​​​‍you’ve got more at stake than the aver- alcohol, dant abstain from there would be you if age person you know now because appeal. no issue for But that is not what probation again, you might as bust this observed, occurred. As the district court pack your bag, you’re not well gave the state court the choice of long I going society to be in this as serving years having suspended ten keep you Do under- you can out it.of twenty-year subject to the condi- stand that? tion that Wickham not take a drink.8 The added). (emphasis [T. 39-42] double was not related to probation, After Wickham violated punish- underlying increased offense. twenty years, upon sentencing Wickham to petitioner’s ment directed at status as was the court stated: an alcoholic and the need to remove his example shining society You’re another of kind from “for the rest of [his] Thus, why people organizations judi- of the RID life.” merits natural case crusading. They people analysis are want like cial as to whether the sentence interesting underlying proportional penalties It is to note that the must be to other for un- here, leaving burglary offenses the scene of drinking. lawful Missouri’s most severe alco- accident, family all involve a feud. Wick- driving penalty hol-related is for while intoxicat- ham broke into his father-in-law's trailer and offenders,” ed. "Persistent who have two or Twenty years assaulted his brother-in-law. pre- more intoxication related convictions in the prison arising family for offenses out of a dis- ceding years, ten Mo.Ann.Stat. subd. § 577.023 pute certainly determining propor- relevant in 1(2) (Vernon Supp.1990), receive a sen- tionality under Solem. years, tence not to exceed 5 Mo.Ann.Stat. 558.011, Thus, 1(4). judge even § subd. if stated, petition- 8. As the district court in view of sentencing driving Wickham for while in- er’s alcoholism all.” "this was not choice at toxicated, 88-0233-CV-W-5-P, Dowd, the sentence is excessive in view of slip Wickham v. No. (W.D.Mo. 9, 1989). sentencing range op. May at 8 the state has authorized repeat DWI offenders. Wickham received at fairly Because the record demonstrates that possible least twice the harshest sentence under Wickham’s increased was for drink- ing probation, in violation of his that sentence Missouri law. the of- grossly fense. make a point to unnecessary at this

It is disproportionality gross analysis of the full seen fit to avoid majority has claim. merits of case. On discussion merits, by the district reinforced writ, makes grant of a disproportionality. strong case out a ques- emphasize I this is a close stating so analysis difficult one. Full and a tion conclusion, but contrary me to a might lead so. I do not think ANDERSON, Plaintiff-Appellant, James SULLIVAN, Secretary of Louis W. Services, and Human Health Defendant-Appellee.

No. 89-15624. Appeals, States Court United Ninth Circuit. 8, 1990.* June Submitted 21, 1990. Disposition June Memorandum Sept. Opinion Order * 34(a). Fed.R.App.P. Circuit Rule 34-4 appropriate for submis- panel case finds this argument pursuant to Ninth oral without sion notes -, naugh,

Case Details

Case Name: Gary Wickham v. Denis Dowd

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 10, 1990

Citation: 914 F.2d 1111

Docket Number: 89-2580

Court Abbreviation: 8th Cir.