BAKER v. COWLEY, 931 F.2d 1394 (10th Cir. 1991)

No. 90-6354.United States Court of Appeals, Tenth Circuit.
April 29, 1991.

Gary Wayne Baker, pro se.

Robert H. Henry, Atty. Gen., Oklahoma, Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, Okl., for Cowley.

Appeal from the United States District Court for the Western District of Oklahoma.

Before McKAY, SEYMOUR and EBEL, Circuit Judges.

EBEL, Circuit Judge.

[3] FACTS
[4] Petitioner-appellant, Gary Baker, was convicted of second degree murder in Oklahoma state court in 1975. Under the statute then in force, Okla.Stat. Ann. tit. 21, § 701.4, Baker received a mandatory indeterminate

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sentence of ten years to life.[2] Baker’s conviction was affirmed by the Oklahoma Court of Criminal Appeals. See Baker v. State, 593 P.2d 100 (Okl.Cr. 1978). Baker then filed two successive petitions for state habeas relief which were both denied. In his second petition, Baker raised the issue that is now before us. Following the Oklahoma Court of Criminal Appeals’ denial of his second petition in 1989, Baker petitioned for federal habeas relief in the United States District Court for the Western District of Oklahoma. Baker raised two arguments as to why § 701.4 was unconstitutional: he argued first, that § 701.4 violated the Oklahoma sentencing statutory scheme, and second, that § 701.4 violated the United States Constitution. During the time his petition was lodged in the district court, we decide Murray v. Cowley, 913 F.2d 832 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 991, 112 L.Ed.2d 1075 (1991). Baker admitted that under Murray, one of his arguments was meritless.[3] The district court in a memorandum opinion agreed and disposed of Baker’s habeas petition. However, the district court never addressed Baker’s second issue. It is Baker’s second issue that we now address.

[5] DISCUSSION
[6] Baker contends that § 701.4 violates the Eighth Amendment and the Fourteenth Amendment of the Constitution.[4] The gravamen of Baker’s claim is that § 701.4 is unconstitutional because it requires the automatic imposition of a ten year to life indeterminate sentence for a felony murder conviction and does not allow the sentencing authority to exercise its discretion. In support of his argument, Baker cites to a number of cases including Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 3216, 49 L.Ed.2d 859 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976) (order); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In these cases, the Court repeatedly acknowledged the requirement that a mandatory death penalty is unconstitutional and that at a minimum, substantial sentencing procedures must exist to ensure that the death sentence imposed in a given case is proportional to the gravity of the crime committed. However, all of these cases dealt with the death penalty, and the Court has held again and again that the death penalty is a unique punishment that requires special analysis when determining whether its imposition in a particular case passes constitutional muster. See, e.g., Gregg v. Georgia, 428 U.S. at 187, 96 S.Ct. at 2931 (1976) (“There is no question that death as a punishment is unique in its severity and irrevocability.”) (opinion of Stewart, Powell, and Stevens, JJ.). While we acknowledge that the Constitution forbids the mandatory imposition of a death sentence, we know of no cases, nor has the appellant pointed us to any, that forbid the mandatory imposition of a life prison sentence.[5]

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Indeed, the Supreme Court in Rummel v. Estelle,[6] 445 U.S. 263, 285, 100 S.Ct. 1133, 1145, 63 L.Ed.2d 382
(1980), held that a Texas recidivist statute, which required that a defendant receive a mandatory life sentence for a third felony conviction, did not violate the Eighth Amendment.[7]