Colvin v. Tanner
ORDER AND REASONS: IT IS HEREBY ORDERED that Petitioner's 18 objections are OVERRULED. IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge's 15 recommendation and Petitioner John W. Colvin's petition for issuance of a writ of habeas corpus, pursuant to 28 U.S.C. 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 3/21/2017.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN W. COLVIN
ROBERT C. TANNER
ORDER AND REASONS
Before the Court are Petitioner John W. Colvin’s (“Petitioner”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a
state prisoner incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that his sentence
was excessive, constituting “cruel and unusual punishment” in violation of the Eighth and
Fourteenth Amendments.3 The Magistrate Judge recommended that the petition be dismissed with
prejudice.4 Petitioner objects to the Magistrate’s recommendation.5 After reviewing the complaint,
the Magistrate Judge’s Report and Recommendation, Petitioner’s objections, the record, and the
applicable law, the Court will overrule Petitioner’s objections, adopt the Magistrate Judge’s Report
and Recommendation, and dismiss the petition with prejudice.
Rec. Doc. 18.
Rec. Doc. 15.
Rec. Doc. 7.
Rec. Doc. 15.
Rec. Doc. 18.
On June 24, 2009, Petitioner was charged by indictment in Orleans Parish Criminal District
Court with six counts of felony theft over five hundred dollars in violation of Louisiana Revised
Statute Section 14:67.6 “The victims were individuals whose homes were destroyed during
Hurricane Katrina. [Petitioner] accepted payments from each of the six victims in amounts varying
from $40,000 to $65,000, for a total of $247,000.00. In each case, after accepting payments from
the victims, [Petitioner] failed to build modular homes as promised.”7 On November 9, 2009,
Petitioner pleaded guilty to all six counts of felony theft. 8 On February 12, 2010, Judge Darryl A.
Derbigny sentenced Petitioner to 10 years in prison at hard labor as to each count to be served
On April 20, 2011, the Louisiana Fourth Circuit Court of Appeal affirmed Petitioner’s
conviction but vacated the sentence imposed, finding that the sentence was excessive and not
tailored to Petitioner or his crimes.10 “Considering the mitigating evidence presented to the trial
court, the age of [Petitioner], [Petitioner’s] attempt to mitigate the loss to one of the victims before
his arrest, and the fact that [Petitioner] is non-violent and has no criminal record,” the Louisiana
Fourth Circuit found that the sentence was excessive under Louisiana law and that the trial court
abused its discretion in ordering that the six ten-year sentences be served consecutively.11
State Rec., Vol. I of V, Indictment, June 24, 2009.
State v. Colvin, 2010-KA-1092 (La. App. 4 Cir. 4/20/11); 65 So. 3d 669, 671.
State Rec., Vol. I of V, Plea Minutes, November 9, 2009.
State Rec., Vol. I of V, Sentencing Minutes, Feb. 12, 2010.
State v. Colvin, 2010-KA-1092 (La. App. 4 Cir. 4/20/11); 65 So. 3d 669.
Id. at 679.
However, the court opined that a ten-year sentence would not be sufficient, “considering the
extreme economic and emotional harm suffered by the victims in this case.”12 Accordingly, the
Louisiana Fourth Circuit remanded the case to the trial court for resentencing.13
The State sought review of this ruling in the Louisiana Supreme Court on May 19, 2011.14
On March 13, 2012, the Louisiana Supreme Court reversed the Louisiana Fourth Circuit and
reinstated the original sentence finding no abuse of discretion by the trial court.15 The Louisiana
Supreme Court reasoned that the trial court “justified its decision to consider [Petitioner] an
exceptional risk to public safety for whom consecutive sentences are appropriate because he had
preyed systematically on distressed homeowners attempting to rebuild their lives in the aftermath
of Hurricane Katrina.”16 The Louisiana Supreme Court also noted that at the time of sentencing,
five additional theft charges were pending against Petitioner in Jefferson Parish.17 Accordingly,
the Louisiana Supreme Court found no abuse of the trial court’s “broad sentencing discretion.”18
Petitioner’s conviction became final on October 1, 2012, when his application for issuance
of a writ of certiorari was denied by the United States Supreme Court.19 On February 28, 2013,
State Rec., Vol. V of V, State’s Writ Application, May 19, 2011.
State v. Colvin, 2011-K-1040 (La. 3/13/12); 85 So. 3d 663.
Id. at 668.
Id. at 669.
Colvin v. Louisiana, 133 S.Ct. 274 (2012). See Howland v. Quarterman, 507 F.3d 840, 843 (5th Cir. 2007).
Petitioner filed an application for post-conviction relief with the state trial court,20 which was
denied on September 9, 2013.21 Petitioner did not seek review of this ruling.
Petitioner filed this federal habeas petition though counsel on March 24, 2014,22 and he
filed an amended petition on March 28, 2014.23 Petitioner argues that his sentence amounts to cruel
and unusual punishment under the Eighth and Fourteenth Amendments.24 The State filed a
response, arguing that Petitioner failed to establish that the Louisiana Supreme Court’s ruling on
the propriety of his sentence was contrary to or an unreasonable application of clearly established
Report and Recommendation Findings
The Magistrate Judge recommended that the petition be dismissed with prejudice.26 The
Magistrate Judge noted that in the last reasoned opinion on the issue of Petitioner’s sentence, the
Louisiana Supreme Court, relying on state sentencing laws, resolved that the trial court had
considered all relevant factors surrounding the offenses, including the mitigating evidence, and
determined that the sentence imposed was warranted, considering Petitioner’s systematic scheme
to prey on hurricane victims and his less than sincere attempt to accept responsibility.27 The
Magistrate found that under federal habeas review, an excessive sentence claim presents a question
State Rec., Vol. I of V, Application for Post-Conviction Relief, Feb. 28, 2013.
State Rec., Vol. I of V, Order Denying Application for Post-Conviction Relief, Sept. 9, 2013.
Rec. Doc. 1.
Rec. Doc. 7.
Rec. Doc. 14.
Rec. Doc. 15.
Id. at 10.
of law. 28 Accordingly, the Magistrate Judge noted that this Court must determine whether the
denial of relief was contrary to, or an unreasonable application of Supreme Court law.29
The Magistrate Judge found that “[t]o the extent [Petitioner] challenges the state courts’
compliance with Louisiana’s sentencing laws and the Louisiana Constitution, his claim is not the
concern of federal habeas review.”30 The Magistrate noted that federal courts afford broad
discretion to a state trial court’s sentencing decision that falls within the state’s statutory limits.31
Because the sentence imposed upon Petitioner was within those state statutory limits, the
Magistrate determined that the sentence was not excessive.32
The Magistrate Judge noted that the Constitution prohibits cruel and unusual punishments
through the imposition of inherently barbaric punishments under all circumstances.33 The
Magistrate stated that the threshold inquiry is whether the sentence imposed is grossly
disproportionate to the crime.34 The Magistrate found that the sentence imposed was not grossly
disproportionate to the crime, as Petitioner was sentenced within the statutory range to the
maximum term of 10 years imprisonment as to each count. 35
Id. (citing Davis v. Cain, 44 F. Supp. 2d 792, 798 (E.D. La. 1999); Jones v. Kaylo, No. 99-0567, 1999 WL
544680, at *1 (E.D. La. Jul. 26, 1999) (Berrigan, J); Copeland v. Tanner, No. 12-2801, 2013 WL 3776344, at * 12
(E.D. La. Jul. 15, 2013) (Milazzo, J.) (order adopting report and recommendation); Chatman v. Miller, No. 05-1481,
2005 WL 3588637, at *5 (E.D. La. Nov. 9, 2005) (McNamara, J.) (order adopting report and recommendation)).
Id. at 11 (citing Butler v. Cain, 327 F. App’x 455, 457 (5th Cir. 2009)).
Id. (citing Haynes v. Butler, 825 F.2d 921, 923–24 (5th Cir. 1987); Turner v. Cain, 199 F.3d 437, No. 9930041, 1999 WL 1067559, at *3 (5th Cir. Oct. 15, 1999)).
Id. (citing Graham v. Florida, 560 U.S. 48, 58–59 (2010).
Id. at 11–12 (citing United States v. Gonzalez, 121 F.3d 928 (5th Cir. 1997)).
Id. at 12 (citing La. Rev. Stat. Ann. § 14:67(B)(1) (West 2007-10)).
The Magistrate noted that the state trial court found that that the predatory nature of
Petitioner’s actions, the extensive monetary and other tangible losses to the victims, and his lack
of true remorse demonstrated the severity of the offenses.36 The Magistrate also noted that the
combined losses ran over $240,000.00, including government funds obtained through the Road
Home Program, and it was appropriate for the state trial court to consider the aggregate loss under
Louisiana law. 37 Accordingly, the Magistrate Judge determined that the record supported the state
courts’ findings that the sentence imposed was warranted by the gravity of the offenses.38
The Magistrate found that Petitioner had not established the disproportionality between the
sentence and the offenses as required to trigger further scrutiny by the habeas court.39 Nevertheless,
the Magistrate Judge noted that Louisiana courts have imposed the maximum 10 year sentence
under arguably similar circumstances.40 Accordingly, because Petitioner had not demonstrated that
his sentence was disproportionate to his offense, excessive, or otherwise unconstitutional under
the circumstances, the Magistrate determined that the state courts’ denial of relief on this issue was
not contrary to or an unreasonable application of Supreme Court law.41
Id. (citing La. Rev. Stat. Ann. § 14:67 (West 2007-10)).
Id. at 13 (citing State v. Wilson, 99 So. 3d 1067 (La. App. 4 Cir. 2012); State v. Daigle, 688 So. 2d 158
(La. App. 5 Cir. 1997)).
Petitioner objects to the Magistrate Judge’s Report and Recommendation.42 He asserts that
he was sentenced to 60 years imprisonment on his first offense theft charge.43 Petitioner notes that
he is 63 years old and the father of two small children.44 According to Petitioner, this case is
distinguishable from the Louisiana appellate cases cited by the Magistrate, as those defendants
“were sentenced to much less time and were accused of stealing much more money.”45 Petitioner
notes that he has no prior criminal record and could make restitution if released.46
Petitioner asserts that “[a] sixty year sentence, on a first offense, for six counts of theft,
constitutes ‘cruel and unusual punishment’ in violation of the Eighth and Fourteenth
Amendments.”47 Petitioner notes that a 60 year sentence “amounts to a death sentence for a man
of his age.”48 According to Petitioner, the Supreme Court has established criteria for determining
whether a sentence is excessive: “(1) [t]he sentence makes no measurable contribution to
acceptable goals of punishment and hence is nothing more than the purposeful and needless
imposition of pain and suffering; and (2) [i]s grossly out of proportion to the severity of the
crime.”49 He avers that the sentence “was clearly designed to inflict needless pain and suffering.”50
Rec. Doc. 18.
Id. at 1.
Id. at 2.
Id. at 3.
Id. at 3–4 (citing Gregg v. Georgia, 428 U.S. 153 (1976); State v. Kennedy, 957 So. 2d 757 (La. 2007)).
Id. at 4.
Petitioner notes that he will be eligible for parole in 20 years.51 However, he argues that the
sentence is effectively a life sentence because after 20 years imprisonment, it is “statistically [likely
that he] will die in prison.”52
Petitioner notes that all grounds for relief raised in this petition have been presented in the
highest state court.53 He also notes that he has not previously filed any petition in federal court,
with the exception of a writ of certiorari filed with the United States Supreme Court.54 Finally,
Petitioner asserts that his petition is timely because his conviction became final on October 1,
2012, and he filed an application for post-conviction relief in state court on March 3, 2013.55
The State of Louisiana did not file a brief in opposition to Petitioner’s objections despite
receiving electronic notice of the filing.
III. Standard of Review
Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.56 A district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
Id. at 5.
Id. at 5–6.
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
to.”57 A district court’s review is limited to plain error for parts of the report which are not properly
Standard of Review Under the AEDPA
Following the enactment of Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”59 For questions of fact, federal courts must defer to a state court’s findings unless they are
“based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”60 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”61
Regarding this standard, the U.S. Court of Appeals for the Fifth Circuit further explains:
A state court decision is contrary to clearly established precedent if the state court
applies a rule that contradicts the governing law set forth in the Supreme Court’s
cases. A state-court decision will also be contrary to clearly established precedent
if the state court confronts a set of facts that are materially indistinguishable from
a decision of the Supreme Court and nevertheless arrives at a result different from
Supreme Court precedent. A state-court decision involves an unreasonable
application of Supreme Court precedent if the state court identifies the correct
governing legal rule from the Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.62
Fed. R. Civ. P. 72(b)(3).
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
Bell v. Cone, 535 U.S. 685, 693 (2002).
28 U.S.C. § 2254(d)(2).
28 U.S.C. § 2254(d)(1).
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (citations and quotation marks omitted).
If Supreme Court case law “give[s] no clear answer to the question presented, let alone one in [the
petitioner’s] favor, ‘it cannot be said that the state court unreasonably applied clearly established
Federal law.’”63 Additionally, “unreasonable is not the same as erroneous or incorrect; an incorrect
application of the law by a state court will nonetheless be affirmed if it is not simultaneously
IV. Law and Analysis
Petitioner objects to the Magistrate Judge’s conclusion that his sentences are not
excessive.65 He argues that his sentences are excessive because he was sentenced to 60 years
imprisonment on his first offense theft charges.66 Petitioner notes that he is 63 years old, the father
of two small children, and he could make restitution if released.67 Because Petitioner objects to the
Magistrate’s recommendation, the Court reviews this issue de novo.
The Eighth Amendment “preclude[s] a sentence that is greatly disproportionate to the
offense, because such sentences are cruel and unusual.”68 This Court must “initially make a
threshold comparison of the gravity of [the defendant’s] offenses against the severity of [the
defendant’s] sentence.”69 If the sentence is not grossly disproportionate to the crime, the inquiry
is finished.70 However, if the Court infers from this comparison “that the sentence is grossly
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006)).
Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (quotation marks omitted).
Rec. Doc. 18 at 1.
Id. at 1–2.
McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (citations and quotation marks omitted).
Id. at 316.
United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997).
disproportionate to the offense,” then it must “compare the sentence received to (1) sentences for
similar crimes in the same jurisdiction and (2) sentences for the same crime in other
jurisdictions.”71 “Although wide discretion is accorded a state trial court’s sentencing decision and
claims arising out of the decision are not generally constitutionally cognizable, relief may be
required where the petitioner is able to show that the sentence imposed exceeds or is outside the
statutory limits, or is wholly unauthorized by law.”72 The Fifth Circuit has “recognized, following
guidance from the Supreme Court, that successful Eighth Amendment challenges to prison-term
lengths will be rare.”73
Here, Petitioner pleaded guilty to six counts of theft in excess of $500 in violation of
Louisiana Revised Statute § 14:67.74 The trial court sentenced Petitioner to 10 years imprisonment
as to each count to be served consecutively.75 The Louisiana Supreme Court was the last state court
to issue a reasoned opinion on Petitioner’s sentence. The Louisiana Supreme Court upheld the
sentence finding that the trial court “justified its decision to consider [Petitioner] an exceptional
risk to public safety for whom consecutive sentences are appropriate because he had preyed
systematically on distressed homeowners attempting to rebuild their lives in the aftermath of
Hurricane Katrina.”76 The Louisiana Supreme Court also noted that at the time of sentencing, five
additional theft charges were pending against Petitioner in Jefferson Parish.77 Accordingly, the
McGruder, 954 F.2d at 316.
Haynes v. Butler, 825 F.2d 921, 923–24 (5th Cir. 1987) (citations omitted).
United States v. Hebert, 813 F.3d 551, 566 (quoting United States v. Harris, 566 F.3d 422, 436 (5th Cir.
State Rec., Vol. I of V, Indictment, June 24, 2009.
State Rec., Vol. I of V, Sentencing Minutes, February 12, 2010.
State v. Colvin, 2011-K-1040 (La. 3/13/12); 85 So. 3d 663, 668.
Id. at 669.
Louisiana Supreme Court found no abuse of the trial court’s “broad sentencing discretion.”78 On
federal habeas review, this Court can only disturb the Louisiana Supreme Court’s determination if
it was “contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”79 Accordingly, the Court looks to the
Supreme Court’s decisions on excessive sentences in non-capital cases involving adult offenders.
In Rummel v. Estelle, the Supreme Court upheld a sentence of life imprisonment with the
possibility of parole for the defendant’s third nonviolent felony conviction for the crime of
obtaining $120.75 by false pretenses.80 The Court found that “because parole is ‘an established
variation on imprisonment of convicted criminals,’ a proper assessment of Texas’ treatment of [the
defendant] could hardly ignore the possibility that he will not actually be imprisoned for the rest
of his life.” 81 The Court opined that the State of Texas had an interest “in dealing in a harsher
manner with those who by repeated criminal acts have shown that they are simply incapable of
conforming to the norms of society as established by its criminal law.” 82 The Court concluded that
“the length of the sentence actually imposed is purely a matter of legislative prerogative.” 83
Accordingly, the Court held that the sentence did not constitute cruel and unusual punishment. 84
Following its decision in Rummel, the Supreme Court upheld a sentence of 20 years
imprisonment for possession of marijuana with intent to distribute and 20 years imprisonment for
28 U.S.C. § 2254(d)(1).
445 U.S. 263, 265 (1980). The defendant had previously been convicted of fraudulent use of a credit card
to obtain $80 worth of goods and services and passing a forged check in the amount of $28.36. Id.
Id. at 280–81 (quoting Morrissey v. Brewer, 408 U.S. 471, 477 (1972)).
Id. at 276.
Id. at 274.
Id. at 285.
distribution of marijuana, with the prison terms running consecutively.85 The Court stated that
“Rummel stands for the proposition that federal courts should be reluctant to review legislatively
mandated terms of imprisonment, and that successful challenges to the proportionality of particular
sentences should be exceedingly rare.”86 Accordingly, the Supreme Court found that the Fourth
Circuit Court of Appeals erred in affirming the district court’s order granting a writ of habeas
Solem v. Helm is the only case involving an adult defendant in which the Supreme Court
has found that a lengthy prison term violated the Eighth Amendment.88 There, the defendant was
sentenced to life imprisonment without the possibility of parole for issuing a “no account” check
for $100.89 The conviction was the defendant’s seventh nonviolent felony conviction. 90 The Court
noted that while “[r]eviewing courts . . . should grant substantial deference to the broad authority
that legislatures necessarily possess in determining the types and limits of punishment for crimes,
as well as to the discretion that trial courts possess in sentencing convicted criminals,” no penalty
is per se constitutional.91 The Solem Court distinguished the case from Rummel, where the
defendant was eligible for parole within 12 years, noting that this fact was heavily relied on by the
Court.92 The Court found that the sentence was significantly disproportionate to the crime,
Hutto v. Davis, 454 U.S. 370 (1982) (per curiam).
Id. at 374 (citations and quotation marks omitted).
463 U.S. 277 (1983).
Id. at 281–82.
Id. at 280.
Id. at 290.
Id. at 297.
reasoning that the criminal conduct was relatively minor, the defendant was treated more harshly
than other criminals in the state who were convicted of more serious crimes, and the defendant
was treated more harshly than he would have been in any other jurisdiction.93
The Supreme Court has rejected proportionality claims in other cases following Solem. In
Harmelin v. Michigan, the Court, in a 5-4 plurality opinion, upheld a sentence of life imprisonment
without the possibility of parole for the defendant’s first felony conviction of possession of 372
grams of cocaine.94 The controlling opinion concluded that the Eighth Amendment contains a
“narrow proportionality principle,” that “does not require strict proportionality between crime and
sentence” but rather “forbids only extreme sentences that are grossly disproportionate to the
crime.”95 In Ewing v. California, the Supreme Court, in a 5-4 plurality opinion, rejected a challenge
to a sentence range of 25 years to life for the theft of three golf clubs under California’s “three
strikes” recidivist statute.96
Finally, in Lockyer v. Andrade, the Supreme Court, in a 5-4 opinion, found that the Ninth
Circuit erred in determining that two consecutive sentence ranges of 25 years to life imprisonment
for “third strike” convictions of stealing videotapes valued at $84.60 and $68.84 respectively were
not contrary to, or an unreasonable application of, clearly established federal law.97 The Court
noted that the term “clearly established federal law” under § 2254(d)(1) refers to “the governing
legal principle or principles set forth by the Supreme Court at the time the state court renders its
Id. at 303.
501 U.S. 957 (1991).
Id. at 997, 1000–1001 (Kennedy, J., concurring in part and concurring in judgment).
Ewing v. California, 538 U.S. 11 (2003).
Lockyer v. Andrade, 538 U.S. 63 (2003).
decision.”98 The Court opined that this was a difficult task in excessive sentence claims because
its “precedents in this area have not been a model of clarity.”99 The Court found that “one
governing legal principle emerges as ‘clearly established’ under § 2254(d)(1): A gross
disproportionality principle is applicable to sentences for terms of years,” but that the “precise
contours” of the gross disproportionality principle are “unclear, applicable only in the ‘exceedingly
rare’ and ‘extreme’ case.”100 The Court stated that a state court decision is “‘contrary to  clearly
established precedent if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.’”101
Because the petitioner’s sentence in Lockyear implicated factors relevant in both Rummel
and Solem and because Solem stated that it did not overrule Rummel, the Supreme Court held that
the state court’s denial of relief was not contrary to clearly established federal law.102 Turning to
the unreasonable application clause, the Court stated that “a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle for [the Supreme] Court’s
decision but unreasonably applies that principle to the facts of the prisoner’s case.”103 The Court
explained that a federal habeas court may not issue a writ of habeas corpus simply because it
concludes in its independent judgment that the state court decision applied federal law erroneously
Id. at 71–72 (citing Williams v. Taylor, 529 U.S. 362, 413 (2000); Bell v. Cone, 535 U.S. 685, 698 (2002)).
Id. at 72.
Id. at 72–73.
Id. at 73 (quoting Williams, 529 U.S. at 405–06)).
Id. at 74.
Id. at 75.
or incorrectly; instead, the application of federal law must be objectively unreasonable.104 Because
“[t]he gross disproportionality principle reserves a constitutional violation for only the
extraordinary case,” the Supreme Court found that it was not an unreasonable application of clearly
established federal law for the California courts to affirm the petitioner’s sentence of two
consecutive terms of 25 years to life in prison.105
In the instant case, Petitioner pleaded guilty to six counts of theft in excess of $500 in
violation of Louisiana Revised Statute § 14:67.106 The trial court sentenced Petitioner to 10 years
imprisonment as to each count to be served consecutively.107 At the time of Petitioner’s sentencing,
Louisiana Revised Statute § 14:67 provided for a term of imprisonment, with or without hard labor,
of not more than 10 years, or a fine of not more than $3,000.00, or both.108 Louisiana law allows
a sentencing court to order that sentences be served consecutively.109 Accordingly, the sentence
was within the statutory range, albeit at the top of that range. When a sentence is within the
statutory limits prescribed by state law, a petitioner “must show that the sentencing decision was
wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that
an error of law resulted in an improper exercise of the sentencer’s discretion and thereby deprived
the petitioner of his liberty.”110
Id. at 75–76.
Id. at 77.
State Rec., Vol. I of V, Indictment, June 24, 2009.
State Rec., Vol. I of V, Sentencing Minutes, Feb. 12, 2010.
La. Rev. Stat. § 14:67(B)(1) (West 2006-2010).
See La. Code Crim. Proc. art. 883 (“If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served
concurrently unless the court expressly directs that some or all be served consecutively.”).
Haynes, 825 F.2d at 924.
Petitioner avers that the sentence “was clearly designed to inflict needless pain and
suffering.”111 The state trial court stated that it found Petitioner’s conduct “predatory and deeply
offensive.”112 Both the state trial court and the Louisiana Supreme Court found that the extent to
which Petitioner “accepted responsibility for the victims[’] losses and the degree to which he was
committed to making restitution by entering his guilty pleas . . . [was] open to considerable
doubt.”113 Moreover, the state courts found that Petitioner was an exceptional risk to public safety,
as he had preyed systematically on distressed homeowners following Hurricane Katrina. The
combined losses for the offenses amounted to over $240,000.00, including government funds
obtained through the Road Home Program.114 Therefore, Petitioner’s contention that the sentence
was designed to inflict needless pain is without merit because the state courts provided reasons to
support the conclusion that the sentence imposed was warranted by the gravity of the offenses.
Petitioner contends that the sentence is effectively a life sentence because although he is
parole eligible after 20 years, it is “statistically [likely that he] will die in prison.”115 In United
States v. Looney, the Fifth Circuit upheld on direct appeal a sentence of 546 months, or
approximately 45 years, imprisonment that was imposed on a 50-year-old first offender for
conspiracy and possession of methamphetamine with intent to distribute and for possessing
firearms in furtherance of drug-trafficking crimes.116 The Fifth Circuit recognized that “while a
life sentence for a crime involving no actual violence might be considered a disproportionate
Rec. Doc. 18 at 4.
State v. Colvin, 2011-K-1040 (La. 3/13/12); 85 So. 3d 663, 666.
Id. at 668.
Id. at 664.
Rec. Doc. 18 at 4.
United States v. Looney, 532 F.3d 392, 393, 396–97 (5th Cir. 2008).
punishment, it is not ‘grossly disproportionate’ as that term is understood under current law.”117
Unlike in Looney, where the defendant would not have been parole eligible under federal law,118
Petitioner will be eligible for parole after 20 years imprisonment.119 Therefore, while the sentence
imposed here may appear harsh for someone who has no previous conviction of any sort, it is
within the statutory range prescribed by Louisiana law and the Louisiana courts found that the
sentence was warranted given the severity of the offenses. Accordingly, considering the wide
discretion that is accorded a state trial court’s sentencing decision, relief is not warranted because
Petitioner has not shown that the sentence imposed exceeds or is outside the statutory limits, or is
wholly unauthorized by law.120
Moreover, in Solem v. Helem, the only case involving an adult defendant where the
Supreme Court found that a lengthy prison term violated the Eighth Amendment, the Supreme
Court relied heavily on the fact that the defendant was sentenced to life imprisonment without the
possibility of parole in determining that the sentence was significantly disproportionate to the
crime.121 This case is distinguishable from Solem because Petitioner is parole eligible.
Furthermore, after Solem was decided, the Supreme Court affirmed a sentence of life imprisonment
without the possibility of parole on a first offense felony conviction for possession of cocaine.122
As noted above and even considering the significant harm to the victims of Petitioner’s crimes, a
Id. at 396 (citing United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997)).
The Sentencing Reform Act of 1984 abolished federal parole for persons convicted under federal law after
November 1, 1987. Lightsey v. Kastner, 846 F.2d 329, 331–32 (5th Cir. 1988).
Rec. Doc. 18 at 4.
Haynes, 825 F.2d at 923–24.
Solem, 463 U.S. at 297, 303.
Harmelin, 501 U.S. at 957.
combined sentence totaling up to 60 years imprisonment for a first-time, non-violent offender
strikes the Court as harsh. Nevertheless, Petitioner will be eligible for parole after 20 years of
imprisonment. Accordingly, Petitioner has not shown that the sentences imposed were grossly
disproportionate to the offenses under clearly established Supreme Court law.
Because Petitioner has not established a gross disproportionality between the sentences
imposed and the offenses, further scrutiny is not warranted.123 However, even comparing the
sentence received to sentences for similar crimes in the same jurisdiction and sentences for the
same crime in other jurisdictions, relief would not be warranted.124 Louisiana appellate courts have
approved the imposition of the maximum ten year sentence in other felony theft cases,125 even in
cases involving first offenders.126 In State v. Ferguson, the Louisiana Fourth Circuit upheld a
sentence totaling 21.5 years imprisonment.127 There, the defendant was convicted of 15 counts of
theft of property and one count of misapplication of funds by a contractor.128 The Louisiana Fourth
See Gonzales, 121 F.3d at 942.
McGruder, 954 F.2d at 316.
State v. Miller, 50-410 (La. App. 2 Cir. 2/24/16); 1894 So. 3d 1160 (upholding a 10-year sentence for one
count of felony theft imposed on a young, college-educated man who had been convicted of two prior felony offenses
and stole $63,534.95 in merchandise from his former employer); State v. Gedric, 96-2262 (La. App. 1 Cir. 9/23/97);
700 (finding that the maximum sentence of ten years at hard labor was not excessive for a sixth felony offender who
stole over $4,400 in cash); State v. LeBlanc, 578 So.2d 1036 (La. App. 3 Cir. 1991) (upholding a ten-year sentence at
hard labor for the defendant who committed theft of approximately $120,000.00, noting that the presentence
investigation report established that defendant had a lengthy criminal record involving theft and issuance of worthless
checks); State v. Madison, 535 So. 2d 1024 (La. App. 2 Cir. 1988) (upholding a sentence of ten years imprisonment
where the defendant had an extensive record of repetitive conduct of stealing and shoplifting and had not responded
to previous correctional treatment); State v. Morris, 525 So.2d 1247 (La. App. 1 Cir. 1988) (finding that the maximum
sentence of ten years imprisonment at hard labor was not excessive for the defendant who was convicted of felony
theft, noting that defendant had a lengthy criminal record).
State v. Daigle, 96-782 (La. App. 5 Cir. 1/28/97); 688 So. 2d 158 (finding that a sentence of ten years at
hard labor was not excessive for a corporate accountant who embezzled an estimated $600,000.00 over a ten-year
period, even though defendant had no prior felony convictions and made partial restitution to the victims).
State v. Ferguson, 10-199 (La. App. 4 Cir. 6/30/10); 43 So. 3d 291.
Id. at 293.
Circuit found that the sentence was not excessive considering that the defendant had taken
advantage of hurricane victims by taking the victims’ money and then failing to complete the work
or completing the work in a substandard fashion.129 Therefore, Petitioner’s sentence is not out of
line with other sentences imposed in Louisiana for the same crime. Moreover, Petitioner’s sentence
is also not entirely inconsistent with sentences imposed for the same crime in other jurisdictions.130
Petitioner has not demonstrated that his sentence was disproportionate to his offense,
unconstitutionally excessive, or otherwise unconstitutional under the circumstances. Accordingly,
on de novo review, the Court concludes that Petitioner is not entitled to relief as he has not
established that the state courts’ denial of relief was contrary to or an unreasonable application of
clearly established federal law, as determined by the Supreme Court.
For the reasons stated above, the Court concludes that Petitioner is not entitled to relief as
he has not established that the state courts’ denial of relief was contrary to or an unreasonable
application of clearly established federal law, as determined by the Supreme Court. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
Id. at 296.
See State v. Schmidt, 825 N.W.2d 889 (S.D. 2012) (sentence of ten years imprisonment on nine counts of
grand theft, to run concurrent, and ten years imprisonment on count ten for grand theft, to run consecutive to the other
counts, did not constitute cruel and unusual punishment where the defendant embezzled money from her employer for
six years, the employer’s daughter testified that her mother was forced to sell most of her property due to the loss, IRS
liens were placed against the employer, and the defendant had a prior criminal history and a prior conviction for grand
theft); State v. Kahapea, 141 P.3d 440 (Haw. 2006) (imposition of five consecutive terms of imprisonment of ten years
each upon defendant on his convictions for first-degree theft did not constitute cruel and unusual punishment, as
sentence was not so disproportionate to defendant’s crimes “nor of such duration as to shock the conscience of
reasonable persons or to outrage the moral sense of the community, in light of developing concepts of decency and
fairness”); Brown v State, 640 S.W.2d 275 (Tex. Crim. App. 1982) (sentence of life imprisonment imposed upon a
defendant convicted of offense of theft of personal property valued at more than $200 but less than $10,000 was not
cruel and unusual considering the defendant’s two prior felony convictions); State v. Pettay, 532 P.2d 1289 (Kan.
1975) (nine-to-30-year sentence imposed on defendant, who had two prior felony convictions, for his conviction of
felony theft was within permissible limits of applicable statutes and was not erroneous).
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner John W. Colvin’s petition for issuance of a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this ______day of March, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
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