United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-3529

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Mark Alan Hutto, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

Douglas Weber, Warden of the *

South Dakota State Penitentiary; *

Mark W. Barnett, Attorney General *

of South Dakota, *

*

Appellee. *

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Submitted: October 15, 2001

Filed: December 14, 2001

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Before MURPHY, BEAM, and BYE, Circuit Judges.

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BEAM, Circuit Judge.

A South Dakota state court sentenced Mark Alan Hutto to sixty years'

imprisonment for his role in an attempted escape from the Huron Regional

Correctional Center and for being a habitual offender, as defined by state statute.

Hutto asserts that the sixty-year sentence violates the concept of proportionality found

within the Eighth Amendment to the United States Constitution. Pursuant to 28
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The Honorable Lawrence L. Piersol, Chief Judge, United States District Court

for the District of South Dakota.

2

One co-defendant received a sentence of twenty-five years' imprisonment, to

be served consecutive to the sentence he was already serving, and the other received

a sentence of fifty years' imprisonment, to be served concurrent with an eighty-five

year sentence on charges of aggravated assault and being a habitual offender.

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U.S.C. § 2254, he appeals the federal district court's1

 denial of his petition for a writ

of habeas corpus. We affirm.

While detained prior to trial on charges of burglary and grand theft, Hutto

participated in a failed attempt to escape from the Correctional Center. Hutto's role

in the endeavor was to run a shower and play cards in order to conceal two other

inmates' efforts to remove a prison window. One of the other inmates succeeded in

making it out the window and dropping to the ground, only to injure his back and be

apprehended by jail authorities who had been tipped off by yet another inmate.

Hutto pled guilty to state charges of aiding, abetting or advising escape, and

third-degree burglary. He was found to be a habitual offender on both counts.

Pursuant to South Dakota's habitual offender statute, a state court sentenced him to

sixty years' imprisonment for his role in the attempted escape, to be served

consecutive to a twenty-five-year sentence on the burglary charge. However, if Hutto

receives the maximum amount of "good time" allowed by South Dakota law, he will

be eligible for parole in 2013.

In assessing Hutto's habeas claim, the district court looked at the facts behind

Hutto's prior felony burglary and theft convictions and determined that his criminal

history was essentially non-violent and not as serious as the appellees have attempted

to portray it. The district court also found that Hutto's co-defendants were at least as

culpable as Hutto in the attempted escape but were sentenced much more leniently.2
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Still, the district court ultimately concluded that, under Supreme Court

precedent, it could not draw an inference that Hutto's sentence under South Dakota's

habitual offender statute was grossly disproportionate to his offense. See Rummel

v. Estelle, 445 U.S. 263, 265-66, 285 (1980) (upholding life sentence under state

recidivist statute for conviction on charge of obtaining $120.75 by false pretenses,

when defendant had previous felony convictions for fraudulent use of a credit card

to obtain $80 worth of goods or services and for passing a forged check in the amount

of $28.36). The district court further concluded that without such inference, it need

not consider sentences imposed upon other criminals in South Dakota, or those

imposed upon criminals for the same crime in other jurisdictions. See Harmelin v.

Michigan, 501 U.S. 957, 1004-05 (1991) (plurality opinion of Kennedy, J.).

The Eighth Amendment prohibits sentences that are disproportionate to the

crime committed. Solem v. Helm, 463 U.S. 277, 284 (1983). However, when applied

to noncapital sentences, this proportionality principle is narrowly construed.

Harmelin, 501 U.S. at 997. Intrajurisdictional and interjurisdictional analyses are

necessary "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." Id. at 1005; accord United States v. Johnson, 944 F.2d 396, 409

(8th Cir. 1991). 

We share the district court's concerns as to whether Hutto's relatively nonviolent criminal history and minor role in the attempted escape warrant the harsh

sixty-year, consecutive sentence imposed upon him. Hutto's co-defendants were

apparently more culpable in the escape attempt, and one co-defendant's underlying

crime was more violent, yet they received considerably lighter sentences for their

roles in the escape attempt. However, also as the district court determined, Hutto's

sentence is not disproportionate to his crime in the constitutional sense. See, e.g.,

Harmelin, 501 U.S. at 997, 1005; Rummel, 445 U.S. at 266, 276, 285. But see

Henderson v. Norris, 258 F.3d 706, 709-10 (8th Cir. 2001) (finding sentence grossly
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disproportionate to habeas corpus petitioner's crime where sentence was not

warranted by harm caused or threatened to a victim or to society, petitioner's

culpability or degree of involvement, or by recidivism concerns).

Our power to grant a state prisoner's application for a writ of habeas corpus on

claims adjudicated on their merits in state courts is constrained. Williams v. Taylor,

529 U.S. 362, 412 (2000). We cannot grant habeas corpus relief on a petitioner's

claim unless the state court's adjudication of the claim "resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States," or "resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2);

accord Williams, 529 U.S. at 412-13. Hutto has not demonstrated that the state

court's disposition of his claim was contrary to, or an unreasonable application of,

Supreme Court precedent, or was based on an unreasonable determination of the

facts. We therefore affirm the district court's thorough and well-reasoned result. See

8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.