CRUEL AND UNUSUAL BRIEF

In the

United States Court of Appeals

For the Fourth Circuit

_____________________________________

RObert Alexander Verbal,

                                                                                                                Appellant,

v.

Ricky Anderson, Administrator, Pasquotank Correctional Institution, Elizabeth City, North Carolina,

                                                                                                                Appellee.

_____________________________________

In the Matter of Appeal from

the United States District Court

For the Middle District of North Carolina

(No. 1:08-cv-00114-WO-WWD)

_____________________________________

INformal Brief

_____________________________________

Statement of Jurisdiction

              This is an appeal by Appellant, Robert Alexander Verbal, (hereafter “Verbal”), from the District Court for the Middle District of North Carolina’s decision and final judgment entered on February 4, 2009, granting summary judgment in favor of Appellee, Ricky Anderson, Administrator, Pasquotank Correctional Institution, (hereafter “the State”), and denying Verbal’s petition for writ of habeas corpus.  A certificate of appealability was not granted by the District Court. Appellant Verbal is filing a “Request for Certificate of Appealability” with this brief.  Jurisdiction of this Court on appeal is invoked pursuant to 28 U.S.C. § 2253. 

Statement of the Issue

  1. Whether the imposition of a sentence of life without parole when the jury did not find an intent to kill and some believed the killing was accidental constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution?

Statement of the Case

              Verbal was charged with first degree murder, conspiracy to commit armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury.  He was tried by a jury during the August 9, 2004 session of Moore County, North Carolina, Criminal Superior Court, the Honorable Robert E. Spivey presiding.  The jury acquitted him of the assault charge but found him guilt of conspiracy to commit armed robbery and first degree murder under the felony murder rule.  He was sentenced to life without parole. 

              On August 23, 2004, Verbal filed a Motion for Appropriate Relief.  The motion was denied on September 13, 2004, by Judge Spivey.  Verbal appealed the conviction, sentence, and denial of the Motion for Appropriate Relief. 

              On April 16, 2006, the North Carolina Court of Appeals issued an unpublished opinion finding no error in Verbal’s conviction or sentence.  State v. Verbal, 628 S.E.2d 260 (N.C.App. 2006).  The North Carolina Supreme Court dismissed Verbal’s appeal from the Court of Appeals.  State v. Verbal, 637 S.E.2d 215 (N.C. 2006).  The United States Supreme Court denied certiorari on February 20, 2007.  Verbal v. North Carolina, 549 U.S. 1212, 127 S.Ct. 1329 (2007).

              On February 19, 2008, Verbal filed a petition for writ of habeas corpus in the United States District Court for the Middle District of North Carolina.  On June 13, 2008, a Memorandum Opinion and Recommendation was filed by the magistrate judge.  Verbal filed objections to the recommendation.  On February 4, 2009, Judge William L. Osteen, Jr. entered an order adopting the magistrate’s recommendation, granting summary judgment for the State, denying the petition for habeas corpus, and denying a certificate of appealability.  Judgment was entered the same day.  Verbal gave Notice of Appeal to this Court on March 5, 2009.

Statement of the Facts

              This case involved the drug-related robbery of David Blue and Rodrick Hammond.  During the course of the robbery, Verbal and his co-defendant, Maurice Nealy, engaged in a struggle with the victims.  Verbal and Hammond struggled for the gun and it discharged hitting Blue.  Blue died as a result of his injury.  Further factual background is provided in the Court of Appeals opinion at Appendix page 1a.

              During the course of jury deliberations, the jury sent out a question asking, “Under the North Carolina state law for first degree felony murder, could the killing have accured (sic) by accident and still fall under this law?”  The court instructed the jury that the rule applied even to accidental killings.  The jury then found Verbal guilty of first degree murder under the felony murder rule.  After the sentence was imposed, jurors came forward to say that they believed the killing was accidental and that they believed the sentence was grossly unfair.  Based upon the juror affidavits, Verbal’s counsel filed a Motion for Appropriate Relief alleging Eighth and Fourteenth Amendment violations.  The motion was denied.  The Eighth Amendment claim was raised on direct appeal and denied.  This claim was the only claim raised in Verbal’s petition for writ of habeas corpus.             

Summary of the Argument

              Verbal was sentenced to life imprisonment without the possibility of parole for what some jurors believed was an accidental killing during the course of a robbery.  The sentence was challenged on Eighth Amendment grounds in the trial court and on direct appeal.  The North Carolina Court of Appeals addressed the claim on the merits but failed to apply any of the precedent from the United States Supreme Court in the area of gross disproportionality under the Eighth Amendment to the United States Constitution.

              Verbal filed a habeas petition alleging that the State had unreasonably applied clearly established federal constitutional law when it upheld Verbal’s sentence because his conduct was covered by the statute and the statute authorized the punishment imposed.  Verbal contends that the test from Justice Kennedy’s concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991) as applied by a majority of the members of the Court in Ewing v. California, 538 U.S. 11 (2003) and Harmelin v. Michigan, 501 U.S. 957 (1991) should have been utilized by the North Carolina Court of Appeals.  Further, Verbal contends that an accidental killing punished by life imprisonment without parole is sufficient to cross the threshold and support an inference of gross disproportionality. 

Argument

              The imposition of a sentence of life without parole for an accidental killing violates the Eighth and Fourteenth Amendments to the United States Constitutions.  The North Carolina Court of Appeals unreasonably applied clearly established federal constitutional law when it determined that Verbal’s sentence did not constitute cruel and unusual punishment (I) because it is a punishment that “does not exceed the limits fixed by statute” and (II) when the Court of Appeal failed to follow the test set out in Ewing v. California, 538 U.S. 11 (2003), and Harmelin v. Michigan, 501 U.S. 957 (1991).

Standard of Review

              The district court’s decision on Verbal’s habeas petition is reviewed de novo.  See Connor v. Polk, 407 F.3d 198, 204 (4th Cir. 2005), cert denied 546 U.S. 1216 (2006). The Anti-Terrorism and Effective Death penalty Act (“AEDPA”), 28 U.S.C. § 2254 (2000), governs Verbal’s challenges to his state court sentence. 

              When the claim was properly presented to the state court and the state court adjudicated it, the standard of review set forth in § 2254(d) applies and federal habeas relief may not be granted unless the state-court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.A. § 2254 (d)(1). See Williams v. Taylor, 529 U.S. 362 (2000).

State Court Adjudication of the Claim

              This claim was initially raised in Verbal’s direct appeal.  The North Carolina Court of Appeals opinion addressed the claims on the merits. 

IV. Cruel and Unusual Punishment

Defendant argues the jury did not find an intent to kill, and without such a finding, the imposition of life without parole constitutes cruel and unusual punishment. We disagree.

A. Standard of Review

“The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20, 155 L.Ed.2d 108, 117 (2003) (internal quotations and citations omitted).

We noted that this Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. But outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. Although we stated that the proportionality principle would ... come into play in the extreme example ... if a legislature made overtime parking a felony punishable by life imprisonment, we held that the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Id. at 21, 155 L.Ed.2d at 117 (internal quotations and citations omitted) (emphasis supplied).

B. Analysis

Defendant cites no authority in support of this contention. Defendant concedes “this Court and our State Supreme Court, [have] held that the felony murder rule was promulgated to deter even accidental killings from occurring during the commission of a dangerous felony.” See State v. Richardson, 341 N.C. 658, 670, 462 S.E.2d 492, 500 (1995) (“Felony murder, by its definition, does not require intent to kill as an element that must be satisfied for a conviction.”). The jury was not required to find that defendant intended to kill Blue.

N.C. Gen.Stat. § 14-17 (2005) provides:


A murder which shall be perpetrated by means of ... or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State’s prison for life without parole.

(Emphasis supplied).

“North Carolina courts have consistently held that when a punishment does not exceed the limits fixed by statute, the punishment cannot be classified as cruel and unusual in a constitutional sense.” State v. Stinnett, 129 N.C.App. 192, 200, 497 S.E.2d 696, 701, disc. rev. denied, 348 N.C. 508, 510 S .E.2d 669, cert. denied, 525 U.S. 1008, 142 L.Ed.2d 436 (1998). A punishment of life imprisonment without parole is consistent with N.C. Gen.Stat. § 14-17 and does not violate the Eighth Amendment. This assignment of error has no merit and is dismissed.

Verbal, at *5.  Verbal sought review of the State court decision on this issue in the North Carolina Supreme Court and the United States Supreme              Court.

Discussion of the Issue

              The Eighth Amendment mandates that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  It is clearly established federal constitutional law that the Eighth Amendment contains a proportionality component in the noncapital context.  Harmelin v. Michigan, 501 U.S. 957 (1991); Ewing v. California, 538 U.S. 11 (2003); See also Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 1173 (2003)(“Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as ‘clearly established’ under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years.”).  The Petitioner contends that, as applied to the facts of his case, a sentence of Life Without Parole constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 

  1. The North Carolina Court of Appeals unreasonably applied federal constitutional law by determining there was no Eighth Amendment violation because the punishment imposed was authorized by statute. 

              In the North Carolina Court of Appeals opinion in Verbal’s case, the court stated,

North Carolina courts have consistently held that when a punishment does not exceed the limits fixed by statute, the punishment cannot be classified as cruel and unusual in a constitutional sense…. A punishment of life imprisonment without parole is consistent with N.C. Gen.Stat. § 14-17 and does not violate the Eighth Amendment.

Verbal, at *5 (internal quotation and citation omitted).  Verbal recognizes that the sentence is authorized by law but contends that authorization is insufficient to conclusively establish that the Eighth Amendment allows its imposition in this case.  The United States Supreme Court has stated, “[T]he Eighth Amendment is a restraint upon the exercise of legislative power.”  Gregg v. Georgia, 428 U.S. 153, 174, 96 S.Ct. 2909, 2925 (1976).  The Gregg Court noted,

Although legislative measures adopted by the people’s chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power.

Gregg, 428 U.S. at 174, 96 S.Ct. at 2925. n. 19 (citations omitted); See also Furman v. Georgia, 408 U.S. 238, 313-314, 92 S.Ct. 2726, 2764 (1972), White, J. concurring (“Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not.”).  The Court of Appeals failed to analyze Verbal’s claim to determine if the Eighth Amendment was violated in his case even though the trial court inflicted a punishment which was authorized by the law.  The Supreme Court has observed that “no penalty is per se constitutional” and that an individualized analysis of the sentence and the crime are required.  Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009 (1983).  This analysis was not done because the statute authorized Verbal’s punishment.  In light of the established principle that the Eighth Amendment contains a gross disproportionality principle, relying upon the statute’s authorization of the punishment in denying Verbal’s Eighth Amendment challenge was unreasonable. 

  1. The North Carolina Court of Appeals and the District Court failed to reasonably conduct a disproportionality review as required by clearly established federal law. 

              In Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), the Supreme Court recognized three Eighth Amendment cases which addressed gross disproportionality, all of which recognized different factors to consider.  The Court concluded that it was not unreasonable for the California Court of Appeals to rely on Rummel v. Estelle, 455 U.S. 263, 100 S.Ct. 1133 (1980), Solem v. Helm, 462 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), or Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991), in denying the petitioner’s claim because each offered guidance on what to consider when analyzing Eighth Amendment claims.  The North Carolina Court of Appeals failed to discuss any of these precedents in its decision. 

              Verbal contends then when applied to his case, a mandatory punishment of life without parole is cruel and unusual punishment as it is grossly disproportionate to the crime he committed.  The purpose of disproportionality review is to measure “the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender.”  Rummel v. Estelle, 455 U.S. 263, 288, 100 S.Ct. 1133, 1147 (1980).  The Supreme Court stated that the inquiry “focuses on whether, a person deserves such punishment, not on whether punishment would serve a utilitarian goal.”  Id. 

In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991),  Justice Kennedy’s concurring opinion set forth a three step process to evaluate claims of excessively long sentences to determine whether they are cruel and unusual.  The crux of Justice Kennedy’s opinion is as follows:

A better reading of our cases leads to the conclusion that intrajurisdictional and 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

Harmelin, 501 U.S. at 1006 (emphasis added).  This test from Harmelin has emerged as the test to follow.  See Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008); Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008).

              The Court of Appeals failed to compare the “crime committed and the sentence imposed” in Verbal’s case because the sentence was authorized by statute.  Had the Court of Appeals looked into the facts of Verbal’s case, they would have found that he was convicted of what is in effect a strict liability crime and given the second harshest punishment allowed under North Carolina law – life without parole, the mandatory minimum sentence for first degree murder. Further, the court would have found that the circumstance of the crime strongly suggested that the killing was accidental and that some jurors believed it was an accident.  Generally, accident is a defense to all theories of first degree murder except felony murder.  See State v. Fowler, 150 S.E.2d 731 (N.C. 1966).  The juror’s affidavits supporting the motion for appropriate relief which first raised the Eighth Amendment issue further show that they felt the punishment was excessive given the crime. Looking at these factors, there is an inference that a punishment of life without parole is grossly disproportionate to the crime the Petitioner committed. 

              While the cases that the United States Supreme Court has decided are not entirely clear on which factors should be used to analyze disproportionality claims, it is clear that the Court always considers the nature and circumstances of the crime and the severity of the punishment.  In Enmund v. Florida, 458 U.S. 782 (1982), the Court considered that Enmund was only the getaway driver during the felonies that led to a conviction for felony murder in concluding that his death sentence violated the Eighth Amendment.  In Tison v. Arizona, 481 U.S. 137 (1987), the Court considered that the defendant had intentionally assisted two convicted murderers escape from prison when upholding the imposition of death based upon a conviction for felony murder. 

              In Solem v. Helm, 462 U.S. 277, 290 (1983), the Court considered both the petty nature of the crime of uttering a no account check for which the defendant was given life without parole and the nature of the defendant’s prior convictions which led to the enhanced sentence in deciding that the sentence was grossly disproportionate to the crime. 

              In Ewing v. California, 538 U.S. 11, 19 (2003), the Court considered “not only [Ewing’s] current felony, but also his long history of felony recidivism” in upholding his enhanced sentence for grand larceny against a disproportionality challenge.  The Court was divided on the application of the grossly disproportionate standard to the facts of Ewing’s case, with three justices finding that it was not grossly disproportionate, four justices finding it was and two justices finding that there was no gross disproportionality component of the Eighth Amendment.  Of the justices recognizing the gross disproportionality principle, more found that a sentence of 25 years for the theft of golf clubs was excessive. 

              The North Carolina Court of Appeals recognized the gross disproportionality principle but failed to apply it meaningfully.  The Court of Appeals failed to given any consideration to any of the factors discussed in the United States Supreme Court cases.  Instead the court discussed whether Verbal’s conduct was covered by the statute and whether the punishment was authorized by law.  Verbal did not seek to challenge his conviction.  He only sought review of whether, in light of his conduct, his sentence violated the Eighth Amendment.  An accidental killing should not have resulted in a life sentence without the possibility of parole.  The Eighth Amendment protects Verbal from being exposed to this excessive punishment. 

Conclusion

              Verbal respectfully requests that this Court conduct the Eighth Amendment analysis required under Ewing and find that his sentence of life imprisonment without parole for an accidental killing violates the Eighth Amendment to the United States Constitution.  Verbal asks that his sentence be vacated and that the case be remanded to state court for resentencing. 

              Respectfully submitted, this the 31st day of March, 2009.

                                                        THE LAW OFFICE OF BRUCE T. CUNNINGHAM, JR.

                                                        By:              /s Amanda S. Zimmer

                                                                      Amanda S. Zimmer

                                                                      N.C.Bar No. 35683

                                                                      aszimmer@earthlink.net

              I represent that the following attorney has consented to this document and to my filing it on his behalf as if he had personally signed it.

                                                                      Bruce T. Cunningham, Jr.

                                                                      N.C.Bar No. 5564

                                                                      Btcunningham@earthlink.net

                                                                      Attorneys for Appellant

                                                                      225 North Bennett Street

                                                                      Southern Pines NC  28387

                                                                      910 693-3999

                                                                      910 695-0983 (fax)


Certificate of Compliance

              I hereby certify that:

  1. This brief was prepared using Twelve Point, monospaced typeface (specifically Microsoft Word 2003, Courier New, 12 point).
  2. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief does not exceed 14,000 words (specifically 3,155 words), excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

                                                                                                  /s Amanda S. Zimmer

                                                                                                  Amanda S. Zimmer

                                                                                                  Counsel for Appellant


Certificate of Service

I hereby certify that on ­­­31 March 2009, I electronically filed the foregoing Informal Brief with the Clerk of Court using the CM/ECF system which will send notification of such filing to CM/ECF participant, who is counsel of record for the respondent:

                            Clarence J. DelForge, III

                            Assistant Attorney General

                            cdelforg@ncdoj.gov

              This the 31st day of March, 2009.

                                                                      /s Amanda S. Zimmer

                                                                      Amanda S. Zimmer