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July 15, 1993

TROY TOULSON, Petitioner,
HOWARD L. BEYER, Superintendent, New Jersey State Prison, and ROBERT J. DEL TUFO, Attorney General of New Jersey, Respondents.

The opinion of the court was delivered by: WILLIAM G. BASSLER


 Troy Toulson ["petitioner"], an inmate at West Jersey State Prison in Trenton, New Jersey, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a). For the reasons stated below, the Court will deny the petition.


 The petitioner is presently incarcerated based on a five-count state conviction stemming from the commission of an attempted armed robbery. This Court has previously addressed the merits of this petition. This action is here on remand from the United States Court of Appeals for the Third Circuit. In Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993) ["Toulson II"] the Third Circuit reversed this Court's grant, in Toulson v. Beyer, 792 F. Supp. 352 (D.N.J. 1992) ["Toulson I"], of petitioner's request for habeas corpus relief with respect to his state court sentence.

 In Toulson I, petitioner asserted five grounds for habeas relief. 792 F. Supp. at 353. This Court found that petitioner had failed to exhaust his state law remedies with respect to the first three grounds, id. at 354-55, but that these three claims were procedurally defaulted under New Jersey law, id. at 356, and that requiring their exhaustion prior to hearing the exhausted claims raised in Grounds Four and Five would be futile, id. at 355.

 This Court then concluded that it could properly hear the merits of the exhausted claims in Grounds Four and Five. Id. at 356-57. Petitioner's claim under Ground Four, that the total sentence received was manifestly excessive, was then rejected by this Court. Id. at 357. The Court, however, did grant the requested relief with respect to the aggregate state sentence imposed, based on one of the claims asserted by the petitioner in Ground Five. Id. at 358.

 Ground Five challenges petitioner's sentence on two distinct bases. First, it alleges that the state court improperly imposed separate consecutive sentences, by failing to merge two different counts upon which petitioner was convicted, through reliance on a misinterpretation of the testimony of one witness. 792 F. Supp. at 357. Second, in Ground Five petitioner claims that the sentencing judge relied upon facts not of record in imposing petitioner's sentence. Id. It is this second claim of Ground Five that formed the basis of the Court's determination that a remand to state court for resentencing was necessary. Id. at 358.

 The Third Circuit in Toulson II determined that this Court should not have reached the merits of any of the claims asserted in the habeas petition because of a failure to exhaust state remedies. The court, accordingly, remanded the case to this Court with directions to vacate the order granting the writ of habeas corpus and to dismiss the petition without prejudice. Toulson II, 987 F.2d at 989.

 Upon remand, however, petitioner requested permission to waive the unexhausted claims in Grounds One through Three of the petition, so that the Court could properly readdress the merits of the claims in Grounds Four and Five, which is permissible under McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir. 1987). See Letter of Troy Toulson, dated March 26, 1993. The respondents consented to this Court's addressing the merits of the exhausted claims on the papers previously submitted, without the necessity of a refiled petition, and supplemented their original answer and provided additional briefing on one of those claims.


 A. Petitioner's Ground Four Claim

 In Ground Four petitioner asserts that his aggregate sentence, forty-five years with a twenty-year period of parole ineligibility, is manifestly excessive. Petitioner's brief does not state with any degree of specificity which of his federal constitutional rights are claimed to have been violated. Indeed, the focus of petitioner's claim appears to be that the state court abused its discretion, under New Jersey court precedent, in failing to place a significant emphasis on petitioner's age when considering the aggravating and mitigating circumstances of both the offenses committed and the offender. See Petitioner's Brief In Support of Petition for Writ of Habeas Corpus ["Petitioner's Brief"] at 15-20.

 As was noted in Toulson I, in a habeas corpus proceeding under 28 U.S.C. § 2254(a) this Court has jurisdiction to review both the validity and length of confinement of a state court sentence whenever a constitutional defect in such sentence is properly asserted. Toulson I, 792 F. Supp. at 357; see generally Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983); Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). The standard of review of such state sentences, however, is very limited. Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J. 1987). "So long as the punishment imposed is not based upon any proscribed federal grounds, such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of state concern." Id.

 Although Ground Four of Toulson's petition does not enumerate with particularity which federal constitutional provisions were allegedly violated, this Court may nonetheless address those cognizable constitutional claims which may fairly be inferred from the substance of its allegations. See Blackledge v. Allison, 431 U.S. 63, 75-76, 52 L. Ed. 2d 136, 97 S. Ct. 1621 (1977); see also Rule 4, Rules Governing Habeas Corpus Cases. It is sufficient for this Court to give preliminary consideration to Ground Four of the petition that it "states facts that point to a real possibility of constitutional error." Blackledge, 431 U.S. at 75 n.7 (emphasis added; internal quotations omitted).

 In Toulson I, this Court treated Ground Four as an assertion that the aggregate sentence imposed on petitioner was manifestly excessive because the sentencing judge did not merge two of the counts upon which petitioner was convicted, the aggravated assault and attempted armed robbery counts, and that sentencing petitioner on each count separately thus violated the Double Jeopardy Clause under the Fifth and Fourteenth Amendments. Toulson I, 792 F. Supp. at 357. This argument was rejected, id., and for the reasons there stated, the Court again rejects petitioner's claim and finds no double punishment in his aggregate sentence.

 Another constitutional challenge to petitioner's sentence which may be derived from Ground Four is the possibility that the aggregate sentence imposed violates the Cruel and Unusual Punishments Clause of the Eighth and Fourteenth Amendments. In Solem v. Helm, the United States Supreme Court held that the Eighth Amendment's proscription of cruel and unusual punishments prohibits sentences that are disproportionate to the crimes committed. 463 U.S. at 290.

 This view of the Cruel and Unusual Punishments Clause, however, has been called into question in the more recent Supreme Court ruling in Harmelin v. Michigan, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991). In that case a plurality concluded that "Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." Harmelin, 111 S. Ct. at 2686 (opinion of Scalia, J., joined by Rehnquist, C.J.). Another plurality concluded, however, that "the Eighth Amendment does not require strict proportionality between crime and sentence[,] . . . [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id. at 2705 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.), quoting Solem v. Helm, 463 U.S. 277, 288, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983). It is presently unclear which, if either, of these views of the Cruel and Unusual Punishments Clause will ultimately prevail in the higher courts. See, e.g., United States v. Frazier, 981 F.2d 92, 95-96 (3d Cir. 1992), cert. den. 113 S. Ct. 1662 (1993).

 What is readily apparent from Harmelin, however, is that five Justices of the Supreme Court have held that the three-factor analysis of whether a sentence is disproportionate to the crime, established in Solem, 463 U.S. at 292, is no longer required. Harmelin, 111 S. Ct. at 2686 (opinion of Scalia, J., joined by Rehnquist, C.J.); id. at 2707 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). It is clear that, under Justice Scalia's analysis, Ground Four does not state a constitutional violation.

 Even if Justice Kennedy's somewhat broader analysis ultimately prevails, the determination is whether a "comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 2707 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). In applying that analysis to the present matter, it is important to note that the petitioner was convicted on all counts of a five-count indictment. Toulson I, 792 F. Supp. at 353. As the third count was merged into the fifth, petitioner was effectively punished for having violated four distinct statutory provisions, and thus it is not true that "the offense [sic] for which he was tried and found guilty was essentially one of a single transaction." Petitioner's Brief at 19. On the contrary, it is only in "the legislative branch of the government . . . [where] the substantive power to define crimes and prescribe punishments" lies, Jones v. Thomas, 491 U.S. 376, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322 (1989), and the New Jersey legislature has done that with regard to the crimes for which petitioner was convicted. Because the legislature of New Jersey has separately defined each offense that petitioner was convicted of, and prescribed separate punishments for each, it is appropriate for this Court, in this context, to consider each offense separately.

 Viewed in this light, a sentence of ten years for the crime of conspiracy to commit armed robbery (here, of a nursing home), with the possibility of parole in five years, in no way appears grossly disproportionate to the crime, especially when compared to the facts of Harmelin. There, Justice Kennedy's plurality found that a mandatory sentence of life imprisonment without possibility of parole for possession of more than 650 grams of cocaine was not grossly disproportionate punishment in violation of the Eighth Amendment. 111 S. Ct. at 2708 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.); see also Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980) (mandatory life sentence, under a state recidivist statute, not grossly disproportionate to the crime of obtaining $ 120.75 by false pretenses, with prior convictions for fraudulent use of a credit card and passing of a forged check).

 Considering petitioner's convictions on the other counts separately, it is similarly quite apparent that sentences of five years, ten years with a five-year parole disqualifier, and twenty years with a ten-year parole disqualifier, are not grossly disproportionate to the respective crimes committed by petitioner: possession of a handgun, aggravated assault (which consisted of shooting a woman in the face), and attempted armed robbery. Therefore, because this Court concludes that there is no inference of gross disproportionality among any of the sentences imposed on the petitioner, under Harmelin, no intra- and inter-jurisdictional comparative analyses of these crimes and their related sentences is warranted. Harmelin, 111 S. Ct. at 2707 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). Thus, petitioner's aggregate sentence does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.

 It should also be noted that consideration of whether the sentencing judge abused his discretion in allegedly failing to consider the relative youth of petitioner is not warranted, as such an abuse of discretion, even if it existed, would not rise to constitutional dimensions. See Grecco, 661 F. Supp. at 415. Thus, this Court affirms its initial decision in Toulson I to deny habeas relief to the petitioner with regard to all claims arising under Ground Four of his petition.

 B. Petitioner's Ground Five Claims

 As explained above, Ground Five of Toulson's petition contains two different claims. First, petitioner asserts that when considering the testimony of a 16-year-old male, one of the petitioner's confederates, *fn1" ["the second accomplice"] concerning a prior plan to rob a nursing home, the sentencing court improperly interpreted that testimony to attribute to petitioner the intent to rob the elderly residents of the nursing home, rather than an intent to rob only the office of the nursing home. 792 F. Supp. at 357. Petitioner asserts that by doing so, and then relying on this "misconstrued" intention to separately sentence him on the conspiracy and attempted armed robbery convictions (as the conspiracy was thus viewed by the court as demonstrating a hardness of heart justifying additional punishment), the court punished the petitioner excessively.

  As with Ground Four, the petition contains no specific assertion of a federal constitutional violation. However, based upon the substance of the claim, it appears that petitioner is alleging that the sentencing court deprived him of due process, in violation of the Fourteenth Amendment. It has long been held that due process guarantees a convicted criminal defendant the right not to have his sentence based upon "extensively and materially false" information. Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948); United States v. McDowell, 888 F.2d 285, 290 (3d Cir. 1989); United States v. Cifuentes, 863 F.2d 1149, 1153 (3d Cir. 1988); Bibby v. Tard, 741 F.2d 26 (3d Cir. 1984). Petitioner's argument can thus best be construed as claiming that the judge's interpretation of the second accomplice's testimony is incorrect and resulted in a sentence based on "extensively and materially false" information.

 In Toulson I, after a thorough review of the record this Court determined that the record did in fact contain a basis for the sentencing court's construction of the testimony of the second accomplice concerning the intent to rob the nursing home, and thus factually rejected petitioner's due process claim. Toulson I, 792 F. Supp. at 357. As no new facts have been brought to the attention of the Court, it again finds that petitioner's first argument for relief under Ground Five is without merit.

 Ground Five of Toulson's petition, secondly, asserts that the state sentencing judge relied on facts not in the record in imposing the sentence under which he is currently incarcerated. More particularly, petitioner refers to the transcript of the sentencing hearing *fn2"

 In Toulson I, this Court first determined that there was evidence in the record (i.e., testimony from the state court trial) that both supported and contradicted the sentencing judge's finding that petitioner had threatened at least one of the confederates prior to trial. 792 F. Supp. at 358. Furthermore, this Court noted there was nothing in the record concerning the judge's statement about the "spit-and-threat" incident. This Court there concluded that, from the record, whether these threats had actually occurred was not clear. Id.

 Because the Third Circuit has remanded this case, and because petitioner has now waived his unexhausted claims, this Court has a second opportunity to review the merits of Grounds Four and Five. As explained earlier, the Court finds no reason to disturb its earlier conclusions concerning Ground Four and the first argument in Ground Five. However, in re-examining the merits of the second argument in Ground Five, the Court finds that it overlooked two key elements of law in its earlier analysis.

 First, the Court finds it failed adequately to consider the requirement that the false information upon which a state court judge relies must be not merely "false," but "extensively and materially false" for a due process violation to occur under Townsend v. Burke, 334 U.S. at 741 (emphasis added). Second, the Court did not properly consider that in a habeas proceeding, under 28 U.S.C. § 2254(d), "the factual findings of state courts are presumptively correct." Hakeem v. Beyer, 990 F.2d 750, 766 (3d Cir. 1993).

 Respondents point out, and rightly so, that in determining the existence of the pretrial threats by petitioner the state trial judge, who was also the sentencing judge, *fn3" necessarily relied heavily on the credibility of the two accomplices who testified at trial concerning the threat and discounted petitioner's contradictory testimony. Respondents argue, again correctly, that such a credibility determination generally must be given deference by this Court when considering the habeas petition under 28 U.S.C. § 2254(d).

 The Court recognizes that not all factual findings by a state judge qualify for the § 2254(d) presumption. A district court, before it may consider findings of fact made by a state court, must make sure four prerequisites are satisfied: (1) There was a hearing on the merits of the factual issue, (2) made by a state court of competent jurisdiction, (3) in a proceeding to which the petitioner and the state were parties, (4) evidenced by a written finding, opinion or other reliable and adequate written indicia. See Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991) (citing Townsend v. Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963)).

 The Court concludes that respondents have met the four § 2254(d) prerequisites. The record shows the state court had competent jurisdiction, that petitioner and respondents were parties to the proceeding and that the judge's findings were evidenced in writing in the state court's "Reasons for Sentence," at Da 9-11. While the state court did not conduct a formal evidentiary hearing on the existence of the pretrial threats against the two witnesses, such a separate hearing is not required under the statute. See Sumner v. Mata, 449 U.S. 539, 546-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981).

 In Sumner, the Supreme Court stated that a habeas petitioner had received a "hearing" within the meaning of § 2254(d) when he was given an opportunity to be heard on the factual issue in question, when both the petitioner and the state were formally before the court, and when the court had resolved the factual issue in writing. Id. at 546. Here, petitioner and the state were formally before the Court, both petitioner and the state had an opportunity to be heard on the factual issue, and the court resolved the issue in writing.

 Having concluded that the four prerequisites for § 2254(d) deference apply, the Court may presume that a factual finding by a state court is correct unless petitioner establishes, or it is otherwise shown, or the respondents admit, that one or more of the eight exceptions apply. The § 2254(d) exceptions are:

(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford ...

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