Donna Jayne Simmons v. State of Iowa

28 F.3d 1478, 1994 U.S. App. LEXIS 16896, 1994 WL 323999

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 11, 1994
• Docket: 93-2695
• Status: Published

Opinions

BOWMAN, Circuit Judge.

In December 1988 Donna Jayne Simmons was convicted in Iowa state court of first-degree kidnapping, a charge that arose out of her role in the confinement and torture of her ■ seven-year-old son, and she was sentenced to a mandatory term of life imprisonment. She appeals the judgment of the District Court¹ denying her petition for a writ of habeas corpus, and we affirm.

I.

Larry Siemer, Simmons’s live-in boyfriend, began to abuse Simmons’s seven-year-old son Tracey in the fall of 1987. Shortly after Christmas of that year the abuse escalated, and from December 1987 to April 1988 Tracey lived in the house’s darkened furnace room, handcuffed to a rusty box springs that served as his bed. The door to the room was covered with a filthy blanket and the windows were boarded. The room contained no toilet nor was Tracey released to use the bathroom. Instead he was made to lie in his own waste. Later a bucket was placed in the room so that Tracey could relieve himself without having to be freed from the handcuffs.

Siemer allowed Tracey’s ten-year-old sister April to release Tracey at 6:30 a.m. each morning so that he could attend school but demanded that he be handcuffed to the bed every day after school. Tracey spent the weekends confined in the furnace room, locked to the bed. April also was instructed to feed Tracey a small amount of food each day but otherwise to ignore him. Siemer threatened to harm April or Tracey if they revealed Tracey’s abuse.

The extent of further abuse that Tracey suffered at the hands of Siemer is truly ghastly. Tracey testified that Siemer beat him with a board and a belt, cut his buttocks with a knife, hung him naked from a pipe in the basement, submerged him in ice water, and poured scalding water on his lower abdomen and genitals. When Tracey finally was rescued (after being seen in the furnace room by a neighbor child whose parents called the police), he was huddled in a corner of the furnace room under a dirty blanket, shaking uncontrollably from the pain of second-degree burns to his genitals inflicted during one of the scalding episodes. At trial medical experts testified that Tracey has permanent injuries from the burns.

At no time during this period of torture did Simmons intervene on Tracey’s behalf. Instead she facilitated the abuse by helping to hide physical evidence of Tracey’s mistreatment. She also participated in handcuffing Tracey to the bed and left him alone in the dark and dirty furnace room, fully aware of the atrocities being perpetrated by Siemer.

In preparing for trial, Simmons’s counsel, Peter Berger, investigated the possibility of presenting a defense based on Simmons’s diminished mental capacity. To develop this defense, Berger requested Shanhe Zenian, a court-appointed clinical psychologist, to evaluate Simmons. Dr. Zenian’s initial examination indicated that Simmons might have a psychological disorder, and Berger requested that Dr. Zenian continue meeting with Simmons. Berger also filed a notice with the court that he intended to present a diminished-capacity defense. Dr. Zenian eventually spent over twenty hours meeting with and testing Simmons, and he diagnosed her as having a hysteric personality disorder. He concluded, and would have testified, that because of this personality disorder Simmons could not have formulated the specific intent to commit kidnapping in the first degree. After extensive research and deliberation, Berger decided not to raise diminished capacity as a defense at trial.

Simmons was tried on an aiding-and-abetting theory and was convicted by a jury of first-degree kidnapping, which has a mandatory punishment of life imprisonment without parole under Iowa law.² After the Iowa Supreme Court affirmed her conviction on direct appeal, State v. Simmons, 454 N.W.2d 866 (Iowa 1990), Simmons sought state post-conviction relief, which was denied, and the denial was affirmed by the Iowa Court of Appeals, Simmons v. State, 495 N.W.2d 786 (Iowa Ct.App.1992) (unpublished). Simmons then filed a petition for a writ of habeas corpus with the District Court, arguing that she was denied effective assistance of counsel at trial, in violation of the Sixth Amendment, and that the mandatory life sentence she received is grossly disproportionate to her conduct, in violation of the Eighth Amendment. The District Court denied the petition, and Simmons appeals. We affirm the judgment of the District Court.

ii.

Simmons first argues that counsel’s failure to raise the defense of her diminished mental capacity constitutes ineffective assistance of counsel in violation of the Sixth Amendment.³ To succeed in her claim, Simmons must meet the familiar two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), demonstrating both that her counsel’s performance was deficient and that she was prejudiced by this deficiency. To establish that her counsel’s representation was deficient, Simmons must show that under the circumstances counsel’s conduct violated objective standards of reasonable professional judgment. See id. at 690, 104 S.Ct. at 2066; Riley v. Wyrick, 712 F.2d 382, 385 (8th Cir.1983). Our review of counsel’s representation is a “highly deferential” one. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Counsel’s decisions are presumed reasonable and “strategic choices made after thorough investigation of law and facts ... are virtually unchallengeable.” Id. at 690, 104 S.Ct. at 2066. Finally, we must not evaluate counsel’s performance with the acuity made possible by hindsight; rather, we must view events from counsel’s perspective at the time of the trial. Id. at 689, 104 S.Ct. at 2065.

In its opinion affirming the denial of post-conviction relief, the Iowa Court of Appeals extensively sets forth Berger’s conscientious efforts to establish a diminished-capacity defense, including spending at least thirty hours researching and developing the defense, meeting often with Dr. Zenian about the defense, and reading psychological journals and manuals furnished by Dr. Zenian to educate himself about Simmons’s mental disorder. He also spent considerable time with Simmons explaining all aspects of the diminished-capacity defense strategy and reviewing her options.

Before trial, however, Berger decided that the costs of this defense strategy outweighed its advantages. He came to this conclusion after discovering that, in recounting her case history to Dr. Zenian, Simmons had admitted that she was present and had participated in the abuse of Tracey. He was convinced that this evidence would be brought out by the government. Further, Berger learned that when Simmons was being examined by David Cowan, a clinical social worker, she told Co-wan that her attorney had advised her not to disclose everything that had happened, even though Berger had directed her to be completely truthful. Berger believed that the state would elicit this comment from Cowan at trial and that it would create the impression that Simmons was not psychologically impaired and was attempting to hide something from the jury. After several meetings with Dr. Zenian and Simmons, he decided, with Simmons’s consent, not to raise the diminished-capacity defense. At the state post-conviction hearing, Berger testified that this was the hardest trial decision he ever had had to make. Waiting until the state had completed its case-in-chief to inform the trial court that he would not present a diminished-capacity defense, Berger then defended Simmons by attempting to demonstrate that Siemer alone was responsible for abusing Tracey.

Simmons’s argument that Berger’s strategic decision fell outside the realm of reasonable professional judgment is without merit. Berger did a thorough job of investigating the diminished-capacity defense.' He then was faced with the difficult strategic choice of raising the defense, with its almost certain liabilities, or of staking Simmons’s defense entirely on an attempt to shift the blame to Larry Siemer. Counsel made a carefully reasoned and supportable decision, and we decline to second-guess it. We conclude that “[cjounsel’s strategy choice was well within the range of professionally reasonable judgments.” Strickland, 466 U.S. at 699, 104 S.Ct. at 2070.

III.

As her second ground for habeas relief, Simmons argues that the mandatory sentence of life imprisonment without parole is so disproportionate to her crime that it violates the Eighth Amendment’s prohibition against cruel and unusual punishment.⁴ Again we conclude that her argument is mer-itless.

This Court previously has determined that the Iowa law mandating a life sentence without parole for those convicted of first-degree kidnapping, although severe, is not so disproportionate as to violate the Eighth Amendment. Hatter v. Iowa Men’s Reformatory, 932 F.2d 701, 703 (8th Cir.1991).⁵ Simmons argues, however, that the punishment is unconstitutional as applied to the circumstances surrounding her crime. The Eighth Amendment does not demand that a crime and its sentence be matched meticulously. Rather, “it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (quoting Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 3008, 77 L.Ed.2d 637 (1983)). Our review of a noncapital sentence to determine whether it is grossly disproportionate to the crime is a narrow one. See id. at 995-97, 111 S.Ct. at 2702 (Kennedy, J., concurring); United States v. Morse, 983 F.2d 851, 855 (8th Cir.1993).

In his concurrence in Harmelin, Justice Kennedy, writing for three members of the Court, points out that courts must give great deference to legislative decisions determining the amount of prison time to be imposed for particular types of crimes. Harmelin, 501 U.S. at 997-1000, 111 S.Ct. at 2703-04 (Kennedy, J., concurring). Justice Scalia, joined by the Chief Justice, argues that the Eighth Amendment contains no proportionality principle, and thus we infer he would maintain that legislatures have absolute discretion in crafting noncapital punishments. Harmelin, 501 U.S. at 986-93, 111 S.Ct. at 2696-2701. Harmelin therefore underscores the constitutional truism that legislatures have expansive discretion in fixing the terms of confinement that courts are to impose on those convicted of statutory crimes. The fact that many other states do not punish with life sentences criminals who have restrained and tortured children proves only that the State of Iowa has made a legislative choice to impose a sterner penalty. Thus the cases Simmons cites from states imposing less severe punishments than Iowa does for the crime of restraining and abusing a child are unpersuasive.

Furthermore, comparing Simmons’s crime to the crimes committed in Harmelin and Hatter, in which both of the defendants received sentences of life imprisonment without parole, we cannot say that Simmons is any less deserving of “the second most severe penalty permitted by law.” Harmelin, 501 U.S. at 1001, 111 S.Ct. at 2705 (Kennedy, J., concurring). Harmelin’s crime was possessing 672 grams of cocaine; Hatter’s that of abducting a woman at knife point and sexually assaulting her. These crimes, including Simmons’s, all are properly the objects of severe condemnation, and courts must give legislatures wide latitude in prescribing their punishments. We conclude that the Iowa mandatory sentence of life imprisonment without parole is not grossly disproportionate to Simmons’s crime of aiding and abetting the restraint and torture of her seven-year-old child.

For the reasons stated, the judgment of the District Court denying Simmons’s petition for a writ of habeas corpus is affirmed.

1 . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.

2 . Larry Siemer was tried separately and also was convicted of first-degree kidnapping.

3 . As part of her argument, Simmons contends that her counsel, instead of raising the diminished capacity defense, relied on the invalid legal theory that a parent cannot be convicted of kidnapping her own child. This is a misrepresentation of the record. Although the record reflects that Berger indeed believed that, as a matter of law, a parent could not be convicted of kidnapping her own child, the trial court refused to allow Berger to argue this theory to the jury. At trial Berger defended Simmons by attempting to shift the blame for the abuse to Larry Siemer, and he argued the disallowed legal theory on appeal.

4 . Simmons failed to raise this claim in her direct appeal to the Iowa Supreme Court. In its opinion affirming the denial of post-conviction relief, the Iowa Court of Appeals concluded that the argument was procedurally barred. In this ha-beas proceeding, however, the state failed to raise procedural bar as a defense, and it affirmatively states in its answer that "[t]he two issues were litigated in the Iowa court ... and the issues can properly be raised in this action.” Respondent's Answer to Petition for Writ of Ha-beas Corpus at 1. The state thus has waived the defense of procedural bar as to Simmons’s Eighth Amendment claim. Lilly v. Gilmore, 988 F.2d 783, 785 (7th Cir.), cert. denied, - U.S. -, 114 S.Ct. 154, 126 L.Ed.2d 116 (1993).

5 . In Hatter, our Court relied upon Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Solem's proportionality analysis has been called into question by Harmelin v. Michigan, 501 U.S. 957, 989-91, 111 S.Ct. 2680, 2699-99, 115 L.Ed.2d 836 (1991), in which a plurality of the Court expressed a desire to overrule or to narrow severely the holding of Solem. See United States v. Morse, 983 F.2d 851, 855 (8th Cir.1993) (noting that Solem's holding has been weakened by Harmelin). We observe that, if the Iowa statute survives the more demanding proportionality analysis of Solem, it necessarily survives the less exacting review dictated by Harmelin.