J.W. Rickett v. Charles Jones, Warden (St. Clair) and the Attorney General of the State of Alabama

901 F.2d 1058, 1990 U.S. App. LEXIS 8179, 1990 WL 57355

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 22, 1990
• Docket: 89-7357
• Status: Published

Opinions

EDMONDSON, Circuit Judge:

The question is whether sentencing a repeat felony offender to life imprisonment in accordance with Alabama’s mandatory Habitual Felony Offender Act (“HFOA” or “Act”), Ala.Code § 13A-5-9 (1975), constitutes an equal protection violation when a co-defendant, who was also a repeat offender, was not sentenced pursuant to the Act. The answer is “no”.

Rickett was arrested on charges of theft and jailed. With the assistance of Battles, a fellow detainee, Rickett escaped from jail. The two were recaptured. Battles, on the eve of his trial, pleaded guilty to escape and theft in the first degree. Although Battles had prior convictions and should have been sentenced under the HFOA, the prosecutor in Battles’ case erred in not learning of the earlier convictions before Battles’ sentencing. Battles was sentenced to four years’ imprisonment.

Later, Rickett had a jury trial and was convicted of first degree escape. Rickett was sentenced to life imprisonment without parole under the HFOA, based on evidence that Rickett had four prior felony convictions. See Ala.Code § 13A-5-9(c)(2) (1975). At Rickett’s trial, Battles testified against Rickett and admitted having three prior felony convictions.¹ These admissions might have brought Battles within the scope of HFOA’s mandatory life sentence for repeat felony offenders.

Rickett argues that the dissimilar sentencing denied him equal protection.² We disagree. Rickett fails to establish an equal protection claim for two reasons.

First, the Supreme Court set out the controlling law on this issue in Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). The Court rejected the argument that application of West Virginia’s recidivist statute to the Oyler petitioners violated the equal protection clause. The Court held that where “the allegations set out no more than a failure to prosecute other [ ] [three-time offenders] because of a lack of knowledge of their prior offenses[,] [t]his does not deny equal protection due petitioners....” ³ Here, the district court made a factual finding that Battles’ record for prior felonies was unchecked due to a slip by the prosecutors and that the prosecutors were for that reason unaware of Battles’ earlier convictions. So, in the light of Oyler, Rickett has failed to show an equal protection violation.

Second, even if Oyler does not bar Rick-ett, he fails to prove a violation of the equal protection clause. Rickett’s evidence in this case fails to show that, in Alabama, persons similarly situated to Rickett are generally not prosecuted and sentenced as habitual offenders. The HFOA is mandatory in its terms. See Maye v. State, 472 So.2d 688, 690 (Ala.Crim.App.1985); Watson v. State, 392 So.2d 1274, 1276 (Ala.Crim.App.1980). At most, Rickett has shown in Battles’ case an isolated and random departure from the HFOA; and this is not enough.

No human institution is perfect, including courts of law. Occasional or random errors in application of state law will occur; but such errors do not constitute state policy, and they do not offend the equal protection clause of the federal Constitution.⁴ Merely negligent conduct is insufficient to support a claim for denial of equal protection. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). The HFOA is facially neutral, applying equally to all repeat felony offenders. “Mere error or mistake in judgment when applying a facially neutral statute does not violate the equal protection clause. There must be intentional discrimination.” E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir.1987). Nothing suggests that the fourteenth amendment’s equal protection clause was intended to serve as a shield against every human error. The Supreme Court has repeatedly rejected the contention that inequality due to error violates equal protection. See, e.g., Beck v. Washington, 369 U.S. 541, 554-55, 82 S.Ct. 955, 962-63, 8 L.Ed.2d 98 (1962); Charleston Federal S. & L. Ass’n v. Alderson, 324 U.S. 182, 190, 65 S.Ct. 624, 630, 89 L.Ed. 857 (1945); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944). See also McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S.Ct. 1756, 1766-67, 95 L.Ed.2d 262 (1987). Here, Rickett was sentenced in compliance with the HFOA’s terms. Battles was lucky and, due to the prosecutors’ oversight, escaped application of the full force of the HFOA. But this gift of chance to Battles does not mean that Rick-ett’s constitutional rights were violated.

Rickett’s claim, at best, is like one for selective prosecution. To make out such a case, a defendant must establish “that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution.” United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir.1978) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). Rickett has not proved that he was singled out for harsh treatment.

The district court found that, while checks of prior records are routinely done, Battles’ record was not checked due to an error in the prosecutors’ office and that prosecutors did not know of Battles’ earlier convictions when Battles was sentenced. The district court also found no reason to doubt the prosecutors’ testimony or integrity when they testified that nothing was done invidiously against Rickett and that no special treatment was given to Battles. The district court’s findings of fact are entitled to deference. Nothing in this record shows that Battles’ record was not checked or that Rickett’s record was checked because of an official’s desire to punish Rickett (or to reward Battles) based on impermissible considerations such as race or religion or because of a desire to prevent Rickett’s exercise of his constitutional rights. Intentional and purposeful discrimination is essential to a selective prosecution claim. Johnson, 577 F.2d at 1308.

Alabama prosecutors should be painstaking in checking about prior felonies. The intent of Alabama law is that all persons within the scope of the Act are to be punished in accordance with its terms. Carelessness in checking records can weaken the legislation’s effectiveness. In addition, if failure to apply the HFOA were to become more than occasional and random, the federal Constitution might be violated, requiring federal court intervention.⁵ But the record in this case fails to show a violation of the federal Constitution.

The judgment of the District Court denying this state prisoner federal habeas corpus relief is AFFIRMED.

1 . The district court found as a matter of fact that only one of Battles’ prior convictions should have been considered under the HFOA because two of the earlier convictions may have been uncounseled. To be considered under the HFOA, convictions must have been obtained with the assistance of counsel. See Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967); Watson v. State, 392 So.2d 1274, 1279 (Ala.Crim.App.1980). With just one prior conviction, Battles — unlike Rickett — was ineligible for a life sentence under the HFOA. Instead, Battles’ Class B felony ought to have been enhanced to a Class A felony, with a minimum ten year sentence. See Ala.Code §§ 13A-5-9(a)(2) & 13A-5-6(a)(l) (1975).

2 . It is important to note what is not at issue in this case. Rickett makes no arguments about classifications drawn by the Act. He makes no facial challenge to the constitutionality of the enhanced sentence for habitual offenders; nor does he challenge the application of the HFOA as either a deprivation of due process or the imposition of cruel and unusual punishment.

3 . The Oyler Court, in reaching this conclusion, treated the pertinent West Virginia statute as if it were mandatory and state prosecutors had no discretion to avoid seeking the more severe penalty for recidivists. See 368 U.S. at 455 n. 10, 82 S.Ct. at 505 n. 10. Therefore, the difference between Alabama’s statute and West Virginia’s statute is unimportant for our purposes. Oyler is more than just a selective enforcement case; it deals directly with mandatory recidivist statutes. Only after the Court upheld the practice of treating repeat offenders differently based on differences in the prosecutor’s knowledge about their prior offenses did the Court go on to discuss an alternative point: conscious selective enforcement.

4 . The concurrence relies on Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), but Logan is inapplicable. Logan was not decided on equal protection grounds; the Court did not address equal protection arguments. Therefore, what was said about equal protection in concurring opinions is not controlling here.

Rickett asserts in the present case that he was deprived of equal protection by his prosecutors' conduct, but he does not argue that the HFOA makes improper classifications. Logan is materially different. Logan involved an Illinois statute which divided claimants into two categories. The Illinois Supreme Court had construed the statute in such a way as to produce categories; no Alabama high court has similarly construed the Alabama recidivist statute. Therefore, we continue to be faced here with a case of random error by state officials and not a state law classification or a state policy.

Finally, even if Justice Blackmun’s concurring opinion in Logan were the controlling opinion of the Court, application of that opinion here would entail a significant extension (as opposed to a following) of the precedent. Nothing in Logan, including the concurring opinions, hints that, if a claimant, such as Mr. Logan, were barred from asserting his claim because he filed it too late to comply with the state statute, he could avoid application of the time bar by showing that state agents occasionally miscalculated when other people’s claims were filed late and, therefore, mistakenly allowed those claimants to proceed, although they too should have been time barred. This hypothetical case would be much closer to Rickett’s case than was Logan.

5 . No evidence submitted in this case shows a departure from the HFOA except in the single instance of Battles' case. In McLester v. Smith, 802 F.2d 1330, 1333 (11th Cir.1986), we rejected an eighth amendment challenge to the HFOA where Alabama acknowledged that in 1984 "seventy-eight persons in Alabama [were] serving sentences of less than life without parole following convictions for first degree robbery with prior convictions for felonies sufficient to invoke the mandatory sentence provisions of Title 13A-5-9.”

The McLester statistic is useless to us because we do not know when the seventy-eight defendants were sentenced. We know only that in 1984 there were seventy-eight persons who at some point had been sentenced incorrectly because the HFOA had not been applied. Rickett was sentenced in 1982; all seventy-eight errors could have occurred well before Rickett’s sentencing or could have taken place a year or more after. Without more, that seventy-eight persons at some time were sentenced incorrectly under the HFOA does not establish a pattern of disparate treatment pertinent to Rickett’s case.

The statistic is also useless because we do not know how many people were correctly sentenced under the HFOA, and thus we do not know what percentage seventy-eight incorrect sentences represents. The error rate could be low, and a low percentage of error would further support the idea that the failure to sentence Battles under the HFOA was a random and isolated error. Even if the error percentage were high, however, we might still reject Rick-ett’s equal protection claim. In Oyler, the Supreme Court considered the possibility that "a high percentage of those subject to [West Virginia’s recidivist] law have not been proceeded against,” 368 U.S. at 456, 82 S.Ct. at 506, and still rejected the petitioners' equal protection claims.

Finally, we disagree that stipulations of fact made by a party in a separate case — even if the stipulation is memorialized in one of our opinions — can by means of judicial notice be used on appeal to decide this case. This is especially true where the district court's opinion does not show that the district court took such judicial notice, assuming the district court (N.D.Ala.) could take notice of evidence in another case in another court (M.D.Ala.). To use judicial notice, as we have been urged to do, is to change the case from that heard by the district court to something else and then to decide this different case relying on the judicially noticed additional fact.

This use of judicial notice is unfair to the district judge who decided the case on the evidence before him and unfair to defendants because they have been allowed no chance in this case to meet and to overcome the "noticed fact.” In deciding this case, it seems best to stick to the record in this case; we ought to take no notice of evidence in other cases to supply facts essential to support an outcome in the present case. See M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir.1983); Stevens v. Tennessee Valley Auth., 699 F.2d 314, 315 (6th Cir.1983); Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 510 (4th Cir.1977). See also Garcia v. American Marine Corp., 432 F.2d 6, 8 (5th Cir.1970) (district court decision should not be reversed on basis of facts not in record).