United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on state pro se petitioner
Robert Stearns application for writ of habeas under 28 U.S.C.
a 2007 jury trial, Stearns was convicted of three counts of
Indecent Exposure, in Montana's Twenty-First Judicial
District, Ravalli County. Stearns was sentenced to 75-years
in the Montana State Prison on each count, with the sentences
ordered to run consecutively, for a net sentence of
225-years. State v. Stearns, 195 P.3d 794, 796,
⁋ 12 (Mont. 2008); see also, (Doc. 8 at
filed a direct appeal and challenged the introduction of
prior acts evidence and the procedure utilized by the trial
court in admitting the evidence. In affirming his
convictions, the Montana Supreme Court found the procedural
irregularities did not affect Stearns' substantial rights
or violate his right to a fair trial. Id. at
then sought postconviction relief in the state district
court. In May of 2010, Stearns' petition was denied.
Stearns did not appeal. (Doc. 8 at 3, ¶¶ 11-13.)
Stearns next sought habeas corpus relief in this Court.
Stearns challenged trial counsel's performance; claimed
there were inconsistencies in the victims' statements;
alleged he was only arrested because of his criminal past;
and, asserted that someone else committed similar crimes
after his arrest, suggesting that he was not responsible for
the crimes of which he was convicted. See, Stearns v.
Attorney General, CV-10-44-M-DWM, Pet. (filed May 5,
2010). Stearns was ordered to show cause as to why his
petition should not be dismissed as procedurally defaulted,
but Stearns failed to respond. Accordingly, Stearns'
petition was dismissed as procedurally defaulted without
excuse. Stearns v. Attorney General, CV-10-44-M-DWM,
Or. (D. Mont. Oct. 22, 2010).
2014, Stearns attempted to file an out of time application
for review of his sentence with the Montana Sentence Review
Division. (Doc. 10-1 at 5-8.) Stearns explained that he was
effectively abandoned by his sentence review attorney, Eric
Olson, and that Olson had failed to resubmit his application
for sentence review following the conclusion of Stearns'
postconviction proceedings in the state district court.
Id. at 6. On July 14, 2014, Stearns' application
was denied as untimely. Id. at 10-11.
the 2015 legislative session, the Montana Legislature amended
Montana Code Annotated §45-5-504, the Indecent Exposure
statute under which Stearns was convicted. The statute
previously provided that an individual convicted of a third
or subsequent offense of Indecent Exposure was subject to
life imprisonment or, alternatively, to a minimum prison term
of 5-years and up to 100 years. The change in law, which became
effective October 1, 2015, now provides: “[o]n a third
or subsequent conviction, the person shall be fined an amount
not to exceed $10, 000 or be imprisoned in a state prison for
a term of not more than 10 years, or both.” Mont. Code.
Ann. § 45-5-504(2)(c) (2015).
upon this change in state law, Stearns again advances a
challenge to his Ravalli County conviction. Now he argues his
sentence violates the proportionality clause of the Eighth
Amendment. (Doc. 8 at 3, ⁋ 15.) Stearns asks this Court
to order his sentence be modified to a net sentence of 30
years, the maximum he could receive were he sentenced under
the amended 2015 statute. Id. at 7, ¶ 18.
review of his Amended Petition, the Court advised Stearns
that his petition was likely barred as second or successive,
pursuant 28 U.S.C. §2244(b), and that his claim appeared
to be both time-barred and procedurally defaulted. Stearns
was ordered to show cause as to why his petition should not
be dismissed. (Doc. 9.) Stearns timely responded. (Doc. 10.)
Eighth Amendment forbids the infliction of cruel and unusual
punishments. To determine whether a punishment is cruel and
unusual, courts are to “look beyond historical
conceptions to ‘the evolving standards of decency that
mark the progress of a maturing society.'”
Graham v. Florida, 560 U.S. 48, 58 (2011) (citing
Estelle v. Gamble, 429 U.S. 97, 102 (1976)
(additional citations omitted). “The Eighth Amendment
does not require strict proportionality between crime and
sentence. Rather, it forbids only extreme sentences that are
‘grossly disproportionate' to the crime.”
Ewing v. California, 538 U.S. 11, 24-25 (2003).
individual challenges a term-of-years sentence, the court is
to first consider all of the circumstances to determine
whether the sentence is unconstitutionally excessive.
Graham, 560 U.S. at 59. “[I]n applying the
gross disproportionality principle courts must objectively
measure the severity of a defendant's sentence in light
of the crimes he committed.” Norris v. Morgan,
622 F.3d 1276, 1287 (9th Cir. 2010). “[I]n
the rare case in which [this] threshold
comparison…leads to an inference of gross
disproportionality” the court should then compare the
defendant's sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions.”
Harmelin v. Michigan, 501 U.S. 975, 1005 (1991). If
this comparison “validate[s] and initial judgment that
[the] sentence is grossly disproportionate, ” the
sentence is cruel and unusual. Id.
the Court has no information before it regarding what
sentence other offenders in Montana, or surrounding
jurisdictions, have received for felony Indecent Exposure, it
well may be that the 225-year sentence Stearns received is
grossly disproportionate to other sentences, in violation of
the Eighth Amendment. The modification to the Montana
statute, which would now cap Stearns' maximum net
sentence at 30 years, seems to lend credence to Stearns'
belief that his sentence is unconstitutionally excessive.
But, as ...