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Stearns v. Salmonsen

United States District Court, D. Montana, Missoula Division

February 7, 2019

ROBERT STEARNS, Petitioner,
v.
JAMES SALMONSEN, WARDEN MONTANA STATE PRISON, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on state pro se petitioner Robert Stearns application for writ of habeas under 28 U.S.C. §2254.

         I. Background

         Following 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 2.)[1]

         Stearns 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 ¶¶15-23.

         Stearns 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).

         In 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.

         During 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.[2] 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).

         Relying 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.

         Upon 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.)

         II. Analysis

         The 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).

         When an 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.

         While 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 ...


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