Hawkins v. Hargett

F I L E D
United States Court of Appeals
Tenth Circuit

PUBLISH DEC 29 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

TRENTON LYNN HAWKINS,

Petitioner-Appellant,

v.
No. 98-5162
STEVE HARGETT, Warden;
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,

Respondents-Appellees,

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 95-CV-413-BU(J))

Stephen J. Greubel of Law Offices of Maynard I. Ungerman, Tulsa, Oklahoma,
for Petitioner-Appellant.

Steven E. Lohr, Assistant Attorney General of the State of Oklahoma (W.A. Drew
Edmondson, Attorney General of the State of Oklahoma, with him on the brief),
Oklahoma City, Oklahoma, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, LUCERO, Circuit Judge, and KIMBALL, *
District Judge.

SEYMOUR, Chief Judge.

*
Honorable Dale A. Kimball of the United States District Court for the
District of Utah, sitting by designation.
 Trenton Lynn Hawkins appeals from the federal district court’s order

denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §2254.

The issue before us is whether the prison sentence imposed on Mr. Hawkins is

unconstitutionally disproportionate in violation of the Eighth Amendment. For

the reasons set forth below, we affirm the judgment of the district court.

I.

In the early morning hours of August 11, 1983, Trent Hawkins, then

thirteen years and 11 months old, broke into his neighbor’s home through a

window. The neighbor awoke to find Mr. Hawkins in her bedroom, brandishing

one of her kitchen knives. After a brief struggle, he tied her with ropes and

blindfolded her, then raped and sodomized her repeatedly. Throughout the two

and a half hour episode, Mr. Hawkins threatened the victim with the knife and

threatened to kill her children if she told the police. After the sexual assaults, Mr.

Hawkins took seven dollars out of the victim’s purse and fled.

A referee certified Mr. Hawkins to stand trial as an adult, and this decision

was upheld on appeal by both the Tulsa County District Court and the Oklahoma

Court of Criminal Appeals. A jury found Mr. Hawkins guilty of first degree

burglary, robbery with a dangerous weapon, forcible sodomy, and second degree

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rape. The jury sentenced Mr. Hawkins to maximum sentences of twenty years for

the burglary, twenty years for forcible sodomy, and fifteen years for rape, and to

forty-five years out of a possible life sentence for robbery with a dangerous

weapon. The trial judge ordered that these sentences be served consecutively,

resulting in a total term of one hundred years. The Oklahoma Court of Criminal

Appeals affirmed Mr. Hawkins’ conviction and sentences. See Hawkins v. State,

742 P.2d 33 (Okla. Crim. App. 1987).

In 1991, Mr. Hawkins filed a federal habeas action pursuant to 28 U.S.C.

§ 2254 wherein the district court denied relief. On appeal, this court remanded

the case and ordered the district court to dismiss the petition without prejudice

because Mr. Hawkins had not exhausted all of his claims in state court. See

Hawkins v. Champion, No. 92-5072, 1992 WL 372598, at *3-4 (10th Cir. Dec. 18,

1992). Significantly for our purposes here, we also noted “[t]he district court did

not undertake a full Eighth Amendment proportionality review of Mr. Hawkins’

sentence.” Id. at *4 (citing Harmelin v. Michigan, 501 U.S. 957 (1991)).

Mr. Hawkins filed an application for post-conviction relief in state court

challenging his sentence as disproportionate in violation of the Eighth

Amendment. The court denied relief, and the state court of criminal appeals

affirmed. Mr. Hawkins then filed this petition in federal district court, which was

referred to a magistrate judge for an evidentiary hearing and proportionality

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review. The Magistrate’s Report and Recommendation included a detailed

proportionality review and recommended denying the petition. The district court

affirmed over Mr. Hawkins’ objection, and he now appeals to this court. We

review a district court’s denial of a habeas corpus petition de novo. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

II.

At the outset, it is important to make clear what Mr. Hawkins does not

argue. He is not disputing the state’s initial decision to certify him to stand trial

as an adult. Nor does he contend that the one hundred-year sentence he received

would be disproportionate had it been imposed on an adult. Instead, Mr. Hawkins

urges us to examine whether the consecutive sentences were constitutionally

disproportionate in light of the fact that at the time he committed the crimes he

was only thirteen years old.

A. The Eighth Amendment Proportionality Test

In order to decide this issue, we must first determine the correct analytic

framework to apply to questions of proportionality. The Eighth Amendment’s

guarantee against “cruel and unusual” punishments has been most commonly read

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to bar unnecessarily painful or barbarous methods of punishment. See O’Neil v.

Vermont, 144 U.S. 323, 339 (1892) (Field, J., dissenting). At the beginning of

this century, the Supreme Court interpreted the Eighth Amendment to prohibit a

sentence that was disproportionate to the offense. See Weems v. United States,

217 U.S. 349, 367 (1910) (invalidating a sentence of fifteen years in chains and at

hard labor, plus permanent surveillance and civil disabilities, for the crime of

falsifying a public document). The Court has continued to recognize the

existence of a proportionality rule in noncapital cases, although it has made clear

that “successful challenges to the proportionality of particular sentences should be

exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980). See also Hutto

v. Davis, 454 U.S. 370, 374 & n.3 (1982).

In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court articulated a

three-part test for analyzing proportionality claims under the Eighth Amendment.

It instructed courts to use “objective criteria” to evaluate: “(i) the gravity of the

offense and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for commission

of the same crime in other jurisdictions.” Id. at 292. Applying this analysis, the

Court overturned a sentence of life in prison without possibility of parole for a

nonviolent recidivist. This decision was the Court’s sole instance of such a

holding through the end of the decade, and it failed to precipitate a sweeping

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trend toward sentence reversals based on the Eighth Amendment. See Arthur W.

Campbell, Law of Sentencing § 8:20, at 217 & n.83 (2d ed., 1991).

The Court revisited the proportionality issue in Harmelin v. Michigan, 501

U.S. 957 (1991). The opinion was a fractured one, and it left the meaning of

Solem less than clear. Justice Scalia, joined by the Chief Justice, argued that

cruelty and unusualness are to be determined solely by reference to the

punishment at issue, and without reference to the crime for which it was imposed.

See id. at 976. Undertaking an extensive historical analysis of the Eighth

Amendment, Justice Scalia concluded that “Solem was simply wrong; the Eighth

Amendment contains no proportionality guarantee.” Id. at 965.

Justice Kennedy, joined by Justices O’Connor and Souter, wrote separately

to argue for the existence of a narrow proportionality guarantee. See id. at 996.

His partial concurrence focused on the discretionary language in Solem, pointing

out that Solem had merely said, “‘it may be helpful to compare sentences imposed

on other criminals in the same jurisdiction,’ and that ‘courts may find it useful to

compare the sentences imposed for commission of the same crime in other

jurisdictions.’” Id. at 1005 (Kennedy, J., concurring) (emphasis in original)

(quoting Solem, 463 U.S. at 291-92). Justice Kennedy interpreted this to mean

that “comparative analysis within and between jurisdictions is not always relevant

to proportionality review,” and concluded that “intrajurisdictional and

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interjurisdictional analyses are appropriate only in the rare case in which a

threshold comparison of the crime committed and the sentence imposed leads to

an inference of gross disproportionality.” Id. He did not outline specific criteria

for courts to consider in making this threshold determination of gross

disproportionality. The four dissenters in Harmelin argued for the continued

application of all three prongs of the Solem test. See id. at 1018-22 (White,

Blackmun, Stevens, JJ., dissenting); id. at 1027-28 (Marshall, J., dissenting).

Until now we have found it unnecessary to decide whether Harmelin in fact

overruled or otherwise altered Solem, and what the correct proportionality

analysis should be. See, e.g., United States v. Robertson, 45 F.3d 1423, 1447

(10th Cir. 1995); United States v. Angulo-Lopez, 7 F.3d 1506, 1510 (10th Cir.

1993). Other circuits have employed the following “head count” analysis to

determine that Justice Kennedy’s opinion is controlling. Seven members of the

Harmelin Court (Kennedy, O’Connor, and Souter, JJ., concurring, and White,

Blackmun, Stevens, and Marshall, JJ., dissenting) supported some Eighth

Amendment guarantee against disproportionate sentences. However, five Justices

(Scalia, J., and Rehnquist, C.J., writing the opinion of the Court, and Kennedy,

O’Connor, and Souter, JJ., concurring) rejected the continued application of all

three factors in Solem. The controlling position is the one “taken by those

Members who concurred in the judgments on the narrowest grounds.” Marks v.

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United States, 430 U.S. 188, 193 (1977). Thus, Justice Kennedy’s opinion

controls because it both retains proportionality and narrows Solem. See

McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992); United States v.

Bland, 961 F.2d 123, 129 (9th Cir. 1992); McGruder v. Puckett, 954 F.2d 313,

316 (5th Cir. 1992). 1

We find this reasoning persuasive and hold that Justice Kennedy’s opinion

in Harmelin narrows Solem and sets forth the applicable Eighth Amendment

proportionality test. Accordingly, we examine Mr. Hawkins’ sentence in relation

to his crimes for “gross disproportionality.” If we do not find it, there is no need

to proceed to the comparative analyses.

B. Application of the Test to Mr. Hawkins

Mr. Hawkins urges us, in conducting our proportionality review, to

consider his youth at the time of the crimes as a mitigating factor. The

chronological age of a defendant is a factor that can be considered in determining

whether a punishment is grossly disproportionate to the crime inasmuch as it

1
The Fourth Circuit continues to apply the full Solem test on the theory that
“a majority of the Harmelin Court either declined expressly to overrule Solem or
explicitly approved of Solem.” United States v. Kratsas, 45 F.3d 63, 67 (4th Cir.
1995). We are not convinced by this reasoning. The Kennedy concurrence is
quite explicit in its narrowing construction of Solem. “Solem . . . did not
announce a rigid three-part test.” Harmelin, 501 U.S. at 1004.

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relates to his culpability. Solem instructed courts to compare the gravity of an

offense with the severity of the sentence by looking at “the harm caused or

threatened to the victim or society, and the culpability of the offender.” 463 U.S.

at 292. 2 Culpability can be weighed by examining factors such as the defendant’s

motive and level of scienter, among other things. Id. at 293-94.

In the context of capital cases, the Supreme Court has indicated that the age

of a young defendant is relevant, in the Eighth Amendment sense, to his

culpability. The plurality in Thompson v. Oklahoma , 487 U.S. 815, 835 (1987),

concluded that “less culpability should attach to a crime committed by a juvenile

than to a comparable crime committed by an adult.” Justice O’Connor’s

controlling opinion in Thompson recognized that “[t]he special qualitative

characteristics of juveniles that justify legislatures in treating them differently

from adults . . . are also relevant to Eighth Amendment proportionality analysis.”

Id. at 854 (O’Connor, J.). 3
In Eddings v. Oklahoma , 455 U.S. 104, 116 (1982),

moreover, the Supreme Court noted that the chronological age of a minor is a

2
Justice Kennedy’s opinion in Harmelin does not overrule, or even address,
the holding in Solem that identifies culpability as relevant when determining the
gravity of the offense. Because this is the very element of Solem’s
proportionality review that Justice Kennedy’s concurrence adopts as preeminent,
it follows that Solem’s elaboration of that element remains applicable following
Harmelin.
3
Justice O’Connor qualified this statement by adding that it is the
legislature, not the courts, that should decide the appropriate age cut-off for the
death penalty. 487 U.S. at 854.

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“relevant mitigating factor of great weight,” in a death penalty case.

Other cases have dealt with the proportionality issue in the context of

youthful defendants given statutorily mandated sentences. In Harris v. Wright , 93

F.3d 581 (9th Cir. 1996), the defendant was fifteen years old when he committed

aggravated first-degree murder and received the state’s mandatory sentence of life

without parole. He argued that his sentence was grossly disproportionate to “a

fifteen-year-old’s limited culpability for any crime.” Id. at 584. The Ninth

Circuit disagreed, holding that it had no power to reverse the state legislature’s

decision on the matter. Id. In Rice v. Cooper , 148 F.3d 747 (7th Cir. 1998), the

Seventh Circuit decided that life without parole was not a disproportionate

punishment for a sixteen-year-old mentally retarded boy who killed four people.

Although the court stated that the defendant’s youth “argue[d] for a lighter

sentence,” it, too, found that the statutorily mandated sentence of life without

parole was not disproportionate to the crime. Id. at 752. 4 In State v. Green , 502

S.E.2d 819 (N.C. 1998), the Supreme Court of North Carolina was faced with a

4
The court also reasoned that the defendant was morally responsible for the
crime, and therefore sufficiently culpable under the proportionality analysis,
because he had “sufficient mental capacity to form the intent required to be found
guilty of the crime.” Id. at 752. If this very low culpability standard is applied in
order to determine whether the sentences of youthful offenders are
disproportionate, it appears that few would ever be found to have diminished
culpability due to age. Indeed, if a youthful offender lacked the mental capacity
to form the necessary intent, it is unlikely that he would be certified to stand trial
as an adult.

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fact pattern disturbingly similar to the case at bar -- a thirteen-year-old who

burglarized his neighbor’s house and raped her. The boy was convicted and

received a mandatory sentence of life in prison. The court found that, “[w]hile

the chronological age of a defendant is a factor that can be considered in

determining whether a punishment is grossly disproportionate to the crime, the

Court’s review is not limited to this factor.” Id. at 832.

Thus, we are still left with the question of whether and how a youthful

defendant’s age should factor in to the proportionality analysis when, as here, the

punishment was not mandated by the legislature but was set by a judge within a

range of sentences the legislature specified. We agree with the North Carolina

court’s approach, and hold that age is a relevant factor to consider in a

proportionality analysis. This is so because the first prong of the Solem test

allows for courts to consider multiple factors relevant to culpability, an option

that Harmelin does not foreclose.

This conclusion does not, however, lead to a finding that Mr. Hawkins’

punishment is grossly disproportionate to his crimes. Mr. Hawkins’ crimes were

serious, involving a deadly weapon, a home invasion, threats of violence, and

repeated sexual attacks. Although his culpability may be diminished somewhat

due to his age at the time of the crimes, it is arguably more than counterbalanced

by the harm Mr. Hawkins caused to his victim. By way of comparison, the

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Supreme Court has found that a life sentence without parole is not

disproportionate to the crime of possession of 672 grams of cocaine, see

Harmelin , 501 U.S. 957, and that a life sentence with the possibility of parole is

not disproportionate for a three-time non-violent recidivist, see Rummel , 445 U.S.

263. If these offenses warrant such severe punishments, Mr. Hawkins’ crimes

surely merit the punishment he received, even when we take his age at the time of

the offense into account.

It is also important to the analysis that Mr. Hawkins’ prison sentence, while

lengthy, will be shortened considerably by the availability of parole and “good

time” credits. His consolidated record card indicates he has already completed his

sentences for the rape and sodomy convictions. In fact, Mr. Hawkins is slated to

serve a total of thirty-five years for all four convictions combined, and will be

eligible for parole in approximately fifteen years.

“[B]ecause parole is ‘an established variation on imprisonment of convicted

criminals,’” Rummel, 445 U.S. at 280-81, a proper assessment of Mr. Hawkins’

punishment cannot ignore the possibility that he will actually only serve roughly

one-third of his sentence. We have previously held that the availability of parole

is relevant to determining whether the length of the sentence violates the Eighth

Amendment. See Gutierrez v. Moriarty, 922 F.2d 1464, 1473 (10th Cir. 1991)

(finding life sentence for recidivist drug offender not cruel and unusual

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punishment where parole was available).

Several courts have determined that the availability of parole should

foreclose proportionality review altogether, on the reasoning that any sentence

less than life without parole can never be “grossly disproportionate.” See, e.g.,

United States v. Organek, 65 F.3d 60, 63 (6th Cir. 1995); United States v.

Lockhart, 58 F.3d 86, 89 (4th Cir. 1995); United States v. Meirovitz, 918 F.2d

1376, 1381 (8th Cir. 1990). We believe these cases go too far. While we

recognize that the availability of parole is a relevant consideration, we are not

willing to make it dispositive. The test for gross disproportionality requires us to

examine the fit between punishment and crime. Allowing the analysis to turn on

the single factor of parole focuses solely on the punishment side of the equation.

We are not persuaded the Supreme Court intended this threshold analysis to be

further abbreviated. Thus, while the availability of parole is one factor in our

threshold inquiry, it does not foreclose proportionality review. See, e.g., United

States v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991).

In addition, all of Mr. Hawkins’ sentences were within the permissible

statutory range for the offenses he committed. We are reluctant to interfere with

the legislative determination of an appropriate sentence range. See Rummel, 445

U.S. at 274 (concluding that length of prison sentences for serious felonies may

be “purely a matter of legislative prerogative”); United States v. Youngpeter, 986

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F.2d 349, 355 (10th Cir. 1993) (“If the imposed sentence is within the statutory

limits . . . an appellate court ‘generally will not regard it as cruel and unusual

punishment.’”) (citation omitted). 5

In light of the nature of his crimes, the Supreme Court’s benchmarks, and

the legislature’s proper role in setting sentencing ranges, we cannot say that Mr.

Hawkins’ one hundred-year sentence with the possibility of parole is grossly

disproportionate to the four violent acts he committed. Having so decided, we

need not address the other prongs of the Solem analysis.

Nor are we persuaded that the punishment here separately offends the

Eighth Amendment’s guarantee against cruel and unusual punishment that is

informed by “‘evolving standards of decency that mark the progress of a maturing

society.’” Thompson , 487 U.S. at 822 (citing Trop v. Dulles , 356 U.S. 86, 101

(1958)). In Thompson , a plurality of the Supreme Court specifically considered

5
Mr. Hawkins seems to argue that his punishment should receive a closer
proportionality review because the judge imposed his four sentences
consecutively. We are not convinced. The Eighth Amendment analysis focuses
on the sentence imposed for each specific crime, not on the cumulative sentence
for multiple crimes. See, e.g., O’Neil v. Vermont, 144 U.S. 323, 331 (1892) (“If
[the defendant] has subjected himself to a severe penalty, it is simply because he
committed a great many such offences.”); United States v. Schell, 692 F.2d 672,
675 (10th Cir. 1982) (twenty year sentence consecutive to current ninety-five year
sentence not a violation of the Eighth Amendment). Moreover, “[i]t is clear that
the decision to run the sentences concurrently or consecutively is a matter within
the trial court’s discretion.” Money v. State, 700 P.2d 204, 207 (Okla. Crim. App.
1985).

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the defendant’s age when holding that “it would offend civilized standards of

decency to execute a person who was less than 16 years old at the time of his or

her offense.” Id. at 830. While the evolving standards of decency test is

applicable here, Thompson’s specific holding is of limited value to us because it

dealt with the death penalty and was explicitly cabined as such. The Court has

made it clear that death is qualitatively different than other punishments,

warranting a more searching Eighth Amendment review. See Harmelin , 501 U.S.

at 995.

Other reviewing courts have declined to find that a defendant’s age caused

a penalty to offend “evolving standards of decency” when the penalty was a

statutorily mandated sentence less than death. See, e.g., Rodriguez v. Peters , 63

F.3d 546, 568 (7th Cir. 1995) (life in prison without parole did not violate

evolving standards of decency where defendant committed crime at age fifteen);

State v. Massey , 803 P.2d 340, 348 (Wash. Ct. App. 1990) (same regarding

thirteen-year-old).

Moreover, there is apparently no societal consensus that a long sentence

imposed on a defendant for serious crimes he committed at age thirteen offends

evolving standards of decency. The North Carolina Supreme Court recently found

that nineteen states allow adult penalties for thirteen-year-olds convicted of

serious crimes. See Green , 502 S.E.2d 819, 831 (listing states). The court

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determined that the growing minority of states permitting such punishment is

evidence of changing public sentiment toward modern society’s violent youthful

offenders, and that “sentencing a thirteen-year-old defendant to mandatory life

imprisonment . . . is within the bounds of society’s current and evolving standards

of decency.” Id. Thus, modern society apparently condones the severe

punishment of individuals who commit serious crimes at young ages. We

therefore cannot say that a punishment of a term of years for a violent crime, with

the possibility of parole, violates “evolving standards of decency” simply because

the defendant was thirteen years old at the time of the offense.

III.

Having carefully considered Mr. Hawkins’ claims, we conclude his

sentence does not violate the Eighth Amendment. We AFFIRM the judgment of

the district court denying Mr. Hawkins’ petition for a writ of habeas corpus.

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