Monroe Brown v. Robert Parratt, Warden, Nebraska Penal and Correctional Complex

560 F.2d 303, 1977 U.S. App. LEXIS 12975

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 13, 1977
• Docket: 76-1861
• Status: Published

Opinions

STEPHENSON, Circuit Judge.

Monroe Brown, an inmate of the Nebraska Penal and Correctional Complex, appeals from the district court’s¹ denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Brown was convicted of robbery after a jury trial in the district court of Douglas County, Nebraska. Upon the state’s motion, Brown was found to be an habitual criminal pursuant to Nebraska’s habitual criminal statute,² and received an enhanced sentence of ten years imprisonment. The Supreme Court of Nebraska affirmed Brown’s conviction. State v. Brown, No. 38942, Supreme Court of Nebraska.

Having exhausted his state remedies, Brown sought habeas corpus relief in the United States District Court for the District of Nebraska. He alleged that the Nebraska habitual criminal statute under which he was sentenced was unconstitutional because it constituted cruel and unusual punishment. After an evidentiary hearing and the submission of the state court record, the district court rejected Brown’s contentions and dismissed his petition for a writ of habeas corpus. Brown v. Parratt, 419 F.Supp. 44 (D.Neb.1976). Brown appeals that decision.

The sole issue on this appeal is whether the Nebraska habitual criminal statute constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. First, Brown contends that because the prosecuting attorney has unlimited discretion to prosecute under the habitual criminal statute, the resulting sentence is cruel and unusual punishment. Brown’s argument in this regard is identical to the argument raised in Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977).³ In Martin, the petitioner contended that such unfettered discretion amounted to such arbitrariness and capriciousness as to constitute cruel and unusual punishment. This court rejected that contention. Martin v. Parratt, supra, 549 F.2d at 52. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). Opportunities for discretionary action are inherent in the prosecution of criminal eases. The district court noted that “Other recidivist offenders may have legitimately avoided enhanced penalties by the decision of state authorities to afford mercy or by plea bargaining, both of which are unquestionably constitutional forms of prosecutorial discretion.” Brown v. Par-ratt, supra, 419 F.Supp. at 48 (footnote omitted). Accordingly, we find Brown’s first argument unpersuasive. Second, Brown contends that the application of the Nebraska habitual criminal statute during the relevant time period was so infrequent and arbitrary as to be “freakish” within the meaning of Gregg v. Georgia, supra, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). According to Brown, the statute is unconstitutional as applied to him because such “freakish” application of the statute constitutes cruel and unusual punishment. He bases this argument on statistics for 1970-72 in Douglas County, which show that 104 defendants were eligible to be charged as habitual criminals, 14 were actually charged, and 3 were deemed habitual criminals.

The Eighth Amendment’s proscription of cruel and unusual punishment is not limited to the death penalty. However, the freakishness rationale which implicates the Eighth Amendment has been discussed only in the context of the death penalty. See Gregg v. Georgia, supra, and Furman v. Georgia, supra. The question then becomes whether the standard of freakishness should be applied in non-death penalty cases, such as the instant case.

We conclude that the Furman rationale of freakishness is limited primarily to cases involving the death penalty. The following language indicates that Furman was based, at least in part, on the uniquely grave nature of the death penalty:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

* * * * * *

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. * * * [T]he petitioners are “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. * * * I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Furman v. Georgia, supra, 408 U.S. at 306, 309-10, 92 S.Ct. at 2760, 2762-2763 (footnote omitted) (Stewart, J., concurring). Our conclusion is further supported by Gregg:

While Furman did not hold that the infliction of the death penalty per se violates the Constitution’s ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. * * *

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Gregg v. Georgia, supra, 96 S.Ct. at 2932 (emphasis added). Consequently, an infrequent application of the Nebraska habitual criminal statute does not render the statute unconstitutional as cruel and unusual punishment. We therefore need not reach the question of whether it was so infrequently imposed in Douglas County, Nebraska, that it could be deemed “freakish.” Accordingly, we find the statute was not violative of the Eighth Amendment as applied to Brown.

Affirmed.

1 . The Honorable Robert V. Denney, United States District Judge for the District of Nebraska.

2 . Neb.Rev.Stat. § 29-2221 (Reissue 1975).

3 . It should be noted that, as in Martin, appellant does not contend that the selectivity of enforcement was deliberately based upon an unjustifiable standard.