Gary Wickham v. Denis Dowd

914 F.2d 1111

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 10, 1990
• Docket: 89-2580
• Status: Published

Opinions

MAGILL, Circuit Judge.

Denis Dowd, Superintendent of the Ozark Correctional Center, appeals the district court’s grant of Gary Wickham’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254(a). The district court granted Wickham’s petition on the ground that the state court’s imposition of a special probation condition that he not consume alcohol, revocation of his probation for the violation of that condition, and subsequent imposition of a previously suspended twenty-year sentence had the effect of punishing him solely because he was an alcoholic, in violation of the eighth amendment, as applied to the states through the fourteenth amendment. Dowd argues that in granting Wickham’s petition, the district court announced a new rule and applied it retroactively in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). We agree and reverse.¹

I.

On March 4, 1983, Wickham pleaded guilty to a Class D felony of leaving the scene of a motor vehicle accident and a Class B felony of burglary in the first degree. The two offenses carried a maximum combined penalty of twenty-years imprisonment. At the guilty-plea proceeding, Wickham acknowledged that he had been drinking when the events leading to his arrest occurred. The state court suspended the imposition of sentence and placed him on supervised probation for five years subject to regular and special conditions including that he refrain from consuming or possessing any alcoholic beverages. The state court told Wickham that if he violated his probation, it would impose the maximum sentence of twenty years.

On August 25, 1983, Wickham was again arrested when police responded to his mother-in-law’s telephone call that he had broken the windshield of her car.² A breathalyzer gauged his alcohol level at .22. He admitted at his probation-revocation hearing that he had consumed alcohol. The state court found that Wickham had violated three of his conditions of probation. Instead of carrying through with its threat of imposing the maximum sentence, however, the court offered Wickham two options. Under the first option, Wick-ham would be sentenced immediately to two consecutive five-year sentences in the penitentiary. Under the second option, Wickham would be sentenced to the maximum punishment of twenty-years³ imprisonment for the two offenses. However, the court would suspend the sentence and place him on probation subject not only to the same conditions the court had already imposed but additional conditions, including that he take antibuse daily and refrain from driving a motorized vehicle at any time except on his job site. Wickham was then informed that if he chose the second alternative and subsequently took even one drink or drove an automobile, his probation would be revoked and he would have to serve the twenty-year sentence. After consulting with his family, Wickham chose the second alternative.

On January 20, 1984, Wickham was again arrested. His alcohol level was .29. At his probation revocation hearing on April 24, 1984, the court found that Wick-ham had again violated the condition of his probation that he not consume alcoholic beverages. The court revoked his probation, and reinstated his suspended sentence of twenty years.

After being denied relief in state court,⁴ Wickham filed a petition for writ of habeas corpus in federal district court. The district court granted his petition, vacated his consecutive state sentences, and ordered the state to resentence him to two consecutive five-year sentences (the original option # 1)⁵ on the ground that the twenty-year sentence had the effect of punishing Wick-ham solely because of his status as an alcoholic.

II.

A.

Dowd argues that the district court announced a new rule and applied it retroactively in granting Wickham’s petition for writ of habeas corpus. In order to determine whether the district court announced a new rule, we must first identify the rule upon which it relied. The district court held that “[i]t was cruel and unusual punishment to double [Wickham’s] sentences for doing what he was powerless to control, and the choice the state court gave [him] had the effect of punishing him solely because he was an alcoholic.” Wickham v. Dowd, No. 88-0233-CV-W-5-P, slip op. at 8 (W.D.Mo. May 9, 1989). The district court’s opinion can reasonably be read to hold that: (1) imposing a probation condition upon a known alcoholic that he cannot consume alcohol, and (2) sentencing the alcoholic for violating that probation condition constitutes cruel and unusual punishment because they have the effect of punishing him solely because he is an alcoholic.⁶

The question therefore arises whether the district court announced a new rule. In Teague, a plurality of the Supreme Court held that new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. Teague, 109 5.Ct. at 1069. The Court defined a new rule as one which breaks new ground or imposes a new obligation on the states or the federal government. Id. at 1070. In other words, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. (emphasis in original); see also Sawyer v. Smith, — U.S. -, -, 110 S.Ct. 2822, 2824-25, 111 L.Ed.2d 193 (1990); Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990); Butler v. McKellar, — U.S. -, 110 S.Ct. 1212, 1216, 108 L.Ed.2d 347 (1990); Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989).

Wickham argues that the district court’s grant of his petition for writ of habeas corpus did not involve the creation of a new rule. Wickham attempts to rely on two well-settled rules. First, a state sentence constitutes cruel and unusual punishment if it is so disproportionate that it shocks the moral conscience of reasonable persons. See Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3009-11, 77 L.Ed.2d 637 (1983).⁷ Second, a state law which imprisons a defendant merely because of his status as an addict inflicts cruel and unusual punishment, thereby shocking the moral conscience of reasonable persons. See Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). Relying on these two rules, Wick-ham argues that at the time his conviction became final, the eighth amendment, as applied to the states through the fourteenth amendment, prohibited the state court from: (1) imposing upon a known alcoholic a condition of probation that he not consume alcohol, and (2) revoking the alcoholic defendant’s probation and imposing a sentence for violating the condition that he not drink alcohol.

While the two well-settled rules identified by Wickham may lend general support to the conclusion reached by the district court, this fact does not suffice to show that the rule announced by the district court was not “new.”⁸ See Sawyer, — U.S. at -, 110 S.Ct. at 2824. The district court extended the reasoning of the well-settled principles cited by Wickham, thereby presenting us with a difficult case. The Supreme Court noted in Saffle that while the “explicit overruling of an earlier holding no doubt creates a new rule; it is more difficult ... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases.” Saffle, 110 S.Ct. at 1260. As a guide to making that difficult decision, we must refer to the underlying purpose of the writ, deterrence of state court constitutional violations. Id. Therefore, “reasonable, good-faith interpretations of existing precedents made by state courts” must not be upset “even though they are shown to be contrary to later decisions.” Butler, 110 S.Ct. at 1217; see also Saffle, 110 S.Ct. at 1260.

In arguing that the district court did not announce a new rule, Wickham claims that the state court was bound by controlling authority at the time his conviction became final in 1983. He directs our attention to Robinson, in which the Supreme Court held that “a state law which imprisons a[n addict] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the [Constitution].” Robinson, 370 U.S. at 667, 82 S.Ct. at 1421. (emphasis added). The holding in Robinson dictates that a state may not punish a defendant merely because of his status as an addict. This rule does not dictate that the eighth amendment is violated whenever an addict is punished for using a drug to which he is addicted. In fact, the Court explicitly left that question open, noting that “[t]his statute ... is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.... [W]e deal with a statute which makes the ‘status’ of narcotics addiction a criminal offense.” Id. at 666, 82 S.Ct. at 1420. The rule announced by the district court was not dictated by Robinson or any other controlling precedent existing at the time Wickham’s conviction became final.⁹ Therefore, even if the district court’s decision to extend the well-settled rule that the eighth amendment prohibits punishing a defendant merely because of his status as a drug addict to the present case was correct, it is nonetheless inescapable that the state court's interpretation of the existing law in 1983 was reasonable given the language of Robinson.

An examination of Saffle is also instructive. At the time the defendant’s conviction in Saffle had become final, it was settled that the state could not bar relevant mitigating evidence from being presented and considered during the penalty phase of a capital trial. Saffle, 110 S.Ct. at 1261 (citing Lockett v. Ohio, 438 U.S. 586, 605, 606, 98 S.Ct. 2954, 2965, 2966, 57 L.Ed.2d 973 (1978) (cited portion, plurality opinion), Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982)). The defendant sought to apply a rule that jurors must be allowed to base sentencing decisions upon the sympathy they feel after hearing the mitigating evidence. Saffle, 110 S.Ct. at 1261. Although the rule the defendant sought to apply was closely related to the well-established rule, the Saffle Court held that it was a new rule. The settled precedent dictated “what ” jurors may consider; the rule urged by the defendant dictated “how” jurors may consider the evidence. Id. (emphasis in original).

This case is analogous to Saffle. The rule adopted by the district court states that a known alcoholic cannot be effectively punished for violating a special probation condition that he must refrain from consuming alcohol, no matter how reasonable the condition might otherwise be. The settled precedent of the Supreme Court, which Wickham urges controls this case, dictates that a defendant cannot be punished for his status as an addict. The district court’s rule dictates what act a court may not consider in setting probation conditions and revoking probation (i.e., drinking by alcoholics). The settled rule dictates only what status a court may not consider (i.e., alcoholism). Although related, the settled precedent does not dictate the result urged by the defendant. Reasonable minds could differ over whether the reasoning of Robinson requires the rule adopted by the district court. Therefore, we refuse to invalidate the state court’s reasonable, good faith interpretation of existing precedent. See Butler, 110 S.Ct. at 1217.¹⁰ We hold that the district court announced a new rule.

B.

Having decided that the district court announced the creation of a new rule, we must determine whether that rule falls within one of two narrow exceptions “to the general principle that new rules will not be applied on collateral review.” Saffle, 110 S.Ct. at 1263. First, a new rule will be retroactively applied for the benefit of a petitioner if it places “ ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,’ ” Teague, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)), or if it prohibits the imposition of a certain type of punishment for a class of defendants because of their status or the nature of their offense. Sawyer, — U.S. at -, 110 S.Ct. at 2826. Second, a new rule will be retroactively applied if it announces a “new ‘watershed rule[] of criminal procedure’ ... necessary to the fundamental fairness of the criminal proceeding.” Id. (quoting Saffle, 110 S.Ct. at 1263; Teague, 109 S.Ct. at 1075).

The new rule announced by the district court does not protect primary, private individual conduct. The consumption of alcohol by an alcoholic convicted felon on probation certainly is not the type of primary, private conduct to which the Supreme Court referred.

Furthermore, the new rule does not prohibit the imposition of a certain category of punishment because of a probationer’s status as an alcoholic. The rule merely prohibits the revocation of probation and the imposition of a suspended sentence on the basis of an alcoholic probationer’s decision to consume alcohol in violation of his probation condition. See Penry, 109 S.Ct. at 2953 (if the “Eighth Amendment prohibits the execution of mentally retarded persons ... regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review”).

The new rule also does not prohibit the imposition of a certain category of punishment because of the nature of the offense. The new rule prohibits courts from: (1) imposing upon a known alcoholic a probation condition that he not consume alcohol, and (2) revoking the probation because of a probationer’s violation of that condition, not because of the nature of the probationer’s offense (i.e., first-degree burglary and leaving the scene of an accident). See id. at 2952 (citing Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death penalty cannot be imposed for rape), to illustrate instance where a new rule prohibits imposing a certain category of punishment on a class of persons because of the nature of their offense). Therefore, no aspect of the first exception applies.

The second exception does not apply either. The new rule announced by the district court is not necessary to the fundamental fairness of the criminal proceeding. The rule does not involve the determination of a defendant’s guilt or innocence. In fact, its application is not relevant until after a defendant’s conviction has been obtained. Because violation of the district court’s new rule “would not seriously diminish the likelihood of obtaining an accurate determination,” we conclude that the district court “did not establish any principle that would come within the second exception.” Butler, 110 S.Ct. at 1218.

III.

Accordingly, we reverse the judgment of the district court granting Wickham’s petition for writ of habeas corpus.

1 . Dowd also argues that, assuming the district court did not violate the new rule principle, there was no eighth amendment violation. Because we hold that the district court violated the new rule principle, we are barred from reaching the merits of the rule announced by the district court. Penry v. Lynaugh, -U.S. -, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989).

2 . Wickham was ultimately arrested for driving while intoxicated.

3 . The state court originally stated that the maximum penalty was twenty-two years. This statement was in error and the court subsequently corrected its mistake.

4 . The Missouri Court of Appeals held in part that:

Wickham’s sentence was within the statutory limit for burglary and leaving the scene of an accident. § 558.011. Punishment within statutory limits is not cruel and unusual unless it is so disproportionate under the circumstances that it shocks the moral sense of all reasonable [persons]. State v. Whitehead, 675 S.W.2d 939, 943 (Mo.App.1984); State v. Walker, 618 S.W.2d 43, 44 (Mo.App.1981). Here the alcohol prohibition was necessarily a condition of probation since Wickham’s alcoholism caused his criminal behavior. Wickham was twice warned that a probation violation would result in his imprisonment. Nevertheless, Wickham did not successfully complete an alcohol treatment program, drank alcohol and operated a motor vehicle other than to and from work. Given these circumstances, the twenty-year sentence is not cruel and unusual punishment. Sincup v. Blackwell, 608 S.W.2d 389, 392 (Mo. banc 1980).

Wickham v. State, 733 S.W.2d 793, 795 (Mo.App.1987).

5 . Dowd attacks the district court’s August 4, 1989 order to resentence Wickham to a specific sentence as intrusive and inconsistent with an earlier order. Because we reverse the district court’s grant of Wickham’s petition, we need not reach this issue.

6 . No matter how one construes the district court’s opinion, the focus is not on the exact manner in which Wickham was punished. For example, the district court’s holding is not based upon whether the punishment stemmed from the imposition of the probation condition, revocation of probation, or imposition of the twenty-year sentence instead of the alternative ten-year sentence offered by the state court. The focus is on whether the punishment, in whatever form, had the effect of punishing Wickham because of his status as an alcoholic. Therefore, that is our focus for the purpose of determining whether the district court announced a new rule. If the district court’s rule that the eighth amendment is violated when a known alcoholic probationer is "punished” for consuming alcohol constitutes a new rule, it is irrelevant what form the punishment took.

Furthermore, we note that the district court did not find that Wickham was directly punished because of his status as an alcoholic. Instead, the district court found that the imposition of the probation condition, revocation of his probation, and imposition of the twenty-year sentence had the effect of punishing him for his status as an alcoholic.

7 . The Solem Court identified three criteria for determining the proportionality of sentences: (1) a comparison of the gravity of the offense with the harshness of the penalty; (2) a comparison of the sentence with the sentences imposed on others convicted of the same or similar offense in the same jurisdiction; and (3) a comparison of the sentence with those imposed for the same or similar offense in other jurisdictions. Solem, 463 U.S. at 290-92, 103 S.Ct. at 3009-11.

8 . In fact, to the extent Wickham relies only on the general eighth amendment standard that a sentence violates the Constitution if it is so disproportionate that it shocks the moral conscience of reasonable persons, we conclude that he has not identified any binding precedent which would convince us that the district court’s rule was not a new rule. As applied at this level of generality, the new rule test would be rendered meaningless because petitioners could always identify some abstract, albeit well-settled, rule and argue that their claim is based only on an application of that rule to the facts of their case. Sawyer, — U.S. at -, 110 S.Ct. at 2824.

9 . Accepting, arguendo, the district court’s interpretation of Sweeney v. United States, 353 F.2d 10 (7th Cir.1965), and State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968), we note that neither case compelled the state court to adopt the rule subsequently announced by the district court because the holdings of the Seventh Circuit and Idaho Supreme Court are not binding in Missouri.

10 . We also note that neither the district court nor Wickham identified any precedent which, at the time Wickham’s conviction became final, dictated the rule subsequently announced by the district court. In fact, in formulating its opinion, the district court did not cite even one controlling case to directly support its rule. As the Supreme Court noted in Sawyer, it is “beyond question that no case prior to Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985),] invalidated a prosecutorial argument as impermissible under the Eighth Amendment.” Sawyer, — U.S. at -, 110 S.Ct. at 2824. Based in part on this observation, the Court concluded that the rule advanced by the defendant was not dictated by prior precedent. We draw the same conclusion from the lack of any controlling authority compelling the district court’s rule.