Unpublished Disposition, 914 F.2d 262 (9th Cir. 1989)

No. 89-15693.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and STEPHENS,^*  District Judge.

MEMORANDUM^** 

OVERVIEW

Petitioner appeals the denial of his habeas petition in which he alleges due process and Eighth Amendment violations arising out of his conviction of deadly assault by a prisoner and his sentence of life imprisonment with no possibility of parole for 25 years. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was charged with three counts of armed robbery on June 14, 1980. On October 24, 1980, while in a pre-trial detention facility, he produced a gun and escaped. He was later apprehended and charged with, in addition to the original counts, deadly assault by a prisoner under A.R.S. Sec. 13-1206, and other crimes.

In exchange for the dropping of the other charges against him, petitioner pled guilty to the charge of assault with a deadly weapon by a person in custody under A.R.S. Sec. 13-1206. At the time, this single charge carried with it a life sentence with no possibility of parole for 25 years, and this was the sentence Lamson received.

Petitioner did not appeal his sentence, but filed a petition for post-conviction relief under Arizona Rules of Criminal Procedure Rule 32. This petition was denied by Arizona Superior Court on December 15, 1986, and the Arizona Supreme Court denied a petition for review. Petitioner then filed this petition for habeas corpus relief. The District Court denied the petition on April 10, 1989. Judgment was entered on April 17, 1989, and petitioner filed timely notice of appeal on May 17, 1989.

DISCUSSION

The decision of whether to grant or deny a petition for habeas corpus is reviewed de novo. Cocio v. Bramlett, 872 F.2d 889, 890 (9th Cir. 1989).

The Eighth Amendment prohibits the imposition of "cruel and unusual punishment." U.S. Const. amend. VIII. This proscription includes "sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). In Solem, the Supreme Court described an objective three-prong test for analyzing the proportionality of noncapital sentencing. The three prongs of this test are: 1) the gravity of the offense and harshness of the penalty; 2) the sentences imposed on other criminals in the same jurisdiction; and 3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 290-92. See also Cocio, 872 F.2d at 891; Alford v. Rolfs, 867 F.2d 1216, 1221-23 (9th Cir. 1989).

Applying the Solem test to the facts of the present case leads to the conclusion that the sentence does not violate the Eighth Amendment. The first factor is the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 292-94. In the present case, the defendant intentionally committed a violent act, assault and battery, which is clearly a threat to society. At the time of commission of this act, he was in custody. Defendant has a history of criminal activity. All these indicate the severity of the defendant's crime. In addition, petitioner's sentence, while severe, did offer him the opportunity of parole. See Cocio, 872 F.2d at 893.

The second factor is whether the punishment imposed is excessive relative to other crimes committed in the same jurisdiction. This statute is difficult to compare with other Arizona statutes because part of its severity rests on the fact that the defendant is in custody. In addition, the statute should be compared to others at the time of the petitioner's sentencing. However, comparison of other Arizona criminal penalties indicates that this is probably not excessive. For example, assault with a deadly weapon is punishable by up to fifteen years in prison. A.R.S. Sec. 13-1204(A) (2). Penalties for the commission of any certain crime in jail are generally more severe than those for commission of the same crime committed when not in custody. See, e.g., State v. Garcia, 685 P.2d 734, 737 (1984) (citing People v. McNabb, 3 Cal. 2d 441 (1935)).

The third factor is whether the punishment imposed for this crime is excessive relative to the punishment imposed in other states. Again, comparison is difficult. Few states have identical statutes. The Arizona Supreme Court did a survey of analogous crimes in State v. Garcia, 685 P.2d 734 (Ariz.1984). In concluding that A.R.S. Sec. 13-1206 was not excessive when compared to other jurisdictions, the court noted that states with similar statutes impose sentences of between ten to forty years. Id. at 738. While Arizona's punishment for this offense is more severe than that exacted for similar crimes in other states, it is not so excessive that it violates the Eighth Amendment. Id.

Petitioner raises other grounds in support of his habeas petition. Petitioner argues that application of A.R.S. Sec. 13-1206 to him is a violation of his due process rights because he was not "in custody" for purposes of the statute. He claims that the legislature intended that this statute be applied only to convicted persons, and not to pre-trial detainees. However, the definition of the word "custody" in A.R.S. Sec. 13-1206, as interpreted by the Arizona Supreme Court, is not so limited and clearly applies to petitioner.¹  Therefore, application of this statute to Lamson is not a violation of his due process rights.

Last, petitioner argues that the Arizona statute is unconstitutional because it does not allow the judge to take individual circumstances into account in determining a defendant's sentence. This claim was not raised in his habeas petition, and is not reviewable on appeal. Willard v. People of the State of California, 812 F.2d 461, 465 (9th Cir. 1987).² 

The district court's decision dismissing Lamson's habeas corpus petition is

AFFIRMED.