Billy Roy Tyler v. Frank Gunter & Gary Grammer, 819 F.2d 869 (8th Cir. 1987). · Go Syfert
Billy Roy Tyler v. Frank Gunter & Gary Grammer, 819 F.2d 869 (8th Cir. 1987). Cases Citing This Book View Copy Cite
20 citation events across 6 distinct courts.
Strongest positive: Gary Wickham v. Denis Dowd (ca8, 1990-12-10)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Gary Wickham v. Denis Dowd (2×)
8th Cir. · 1990 · confidence medium
See, e.g., United States v. Buckner, 894 F.2d 975, 980 (8th Cir.1990); United States v. Milburn, 836 F.2d 419, 420 (8th Cir.), cert. denied, 487 U.S. 1222 , 108 S.Ct. 2880 , 101 L.Ed.2d 915 (1988); Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987).
discussed Cited as authority (rule) United States v. R. Randall Walker (2×) also: Cited "see"
8th Cir. · 1990 · confidence medium
Tyler v. Gunter, 819 F.2d 869, 872 (8th Cir.1987).
cited Cited as authority (rule) Blankenfeld v. Clarke
D. Neb. · 1990 · confidence medium
Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987).
cited Cited as authority (rule) Charles Jess Palmer v. Gary Grammer, Warden of the Nebraska State Penitentiary
8th Cir. · 1988 · confidence medium
See 28 U.S.C. § 2254 (b); Anderson v. Harless, 459 U.S. 4, 6 , 103 S.Ct. 276, 277 , 74 L.Ed.2d 3 (1982); Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir.1987).
cited Cited as authority (rule) United States v. Ross Alan Milburn
8th Cir. · 1988 · confidence medium
E.g., Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987) (Tyler).
cited Cited as authority (rule) Raymond D. Irwin v. State of Minnesota
8th Cir. · 1987 · confidence medium
Anderson v. Harless, 459 U.S. 4, 6 , 103 S.Ct. 276, 277 , 74 L.Ed.2d 3 (1982); Tyler v. Gunter, 819 F.2d 869, 870-871 (8th Cir.1987).
cited Cited as authority (rule) United States v. Freeman
E.D. Ark. · 1987 · confidence medium
For a review of Eighth Circuit cases holding sentences "not excessive" see, supra, Tyler v. Gunter , at 871. 2 .
cited Cited "see" Moore v. Kinney
D. Neb. · 2000 · signal: see · confidence high
See Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir. 1987).
cited Cited "see" McGurk v. Stenberg
D. Neb. · 1997 · signal: see · confidence high
See Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir.1987).
discussed Cited "see" Hatter v. Warden, Iowa Men's Reformatory
N.D. Iowa · 1990 · signal: see · confidence high
See Tyler v. Gunter, 819 F.2d 869 (8th Cir.1987) (five year sentence for possession of Vsth gram of hashish); United States v. Eggleton, 799 F.2d 378, 384-85 (8th Cir.1986) (45 year sentence for a kidnapping of four persons for several hours and bank robbery); United States v. Wilson, 787 F.2d 375, 382-84 (8th Cir.), cert. denied, 479 U.S. 857 , 107 S.Ct. 197 , 93 L.Ed.2d 129 (1986) (50 year sentence for kidnapping and bank robbery).
discussed Cited "see, e.g." United States v. Sherman Ray Meirovitz
8th Cir. · 1990 · signal: see also · confidence medium
The Court qualified its analysis by noting, “[i]n view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Id. at 290 n. 16, 103 S.Ct. at 3010 n. 16; see also Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987) (appellate court substantially defers “to a legislature’s broad authority to determine types and limits of punishment and to trial courts who have the discretion to sentence offenders”).
discussed Cited "see, e.g." Wealot v. Armontrout
W.D. Mo. · 1990 · signal: see, e.g. · confidence medium
See, e.g., Tyler v. Gunter, 819 F.2d 869, 870 (8th Cir.1987) (applying the Daye standard); Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986) (applied Daye , since the result was the same under either test, though the court noted that Daye is "arguably more lenient"); Diamond v. Wyrick, 757 F.2d 192, 193 (8th Cir.1985) (per curiam) (applying the Daye standard without citing Daye); Nelson v. Solem, 714 F.2d 57 (8th Cir.1983) (assumed without deciding that Daye is consistent with Thomas).
discussed Cited "see, e.g." United States v. Leo Klein
9th Cir. · 1988 · signal: see also · confidence low
See Fla.Stat.Ann. § 893.135 (1979); Ga.Code § 16-13-31 (1981). 16 .See State v. Benitez, 395 So.2d 514 (Fla.1981); Brugman v. State, 255 Ga. 407 , 339 S.E.2d 244 (1986); see also Tyler v. Gunter, 819 F.2d 869 (8th Cir.1987) (five-year sentence for possession of one-eighth gram of hashish not cruel and unusual); Terrebonne, 646 F.2d at 998 (life im *1499 prisonment in Louisiana for selling small quantity of heroin not cruel and unusual); Salazar v. Estelle, 547 F.2d 1226 (5th Cir.1977) (upholding Texas’ 45-year term for distribution of small quantity of heroin); Shy v. State, 459 A.2d 123, …
Retrieving the full opinion text from the archive…
Billy Roy TYLER, Appellant,
v.
Frank GUNTER and Gary Grammer, Appellees
86-2378.
Court of Appeals for the Eighth Circuit.
Jun 1, 1987.
819 F.2d 869
Terry Wittier, Lincoln, Neb., for appellant., Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, Neb., for appellees.
Arnold, Wright, Gibson.
Cited by 14 opinions  |  Published
EUGENE A. WRIGHT, Senior Circuit Judge.

Tyler seeks habeas corpus relief from a five year sentence for possession of Vsth of a gram of hashish. He alleges that the sentence violates the Eighth Amendment’s provision against cruel and unusual punishment. We disagree.

BACKGROUND

While jailed for traffic violations, Tyler was found with hashish about the size of Vith of an aspirin tablet. Representing himself, he pleaded no contest to a charge of knowingly possessing a controlled substance other than marijuana. A presen-tence investigation report noted that he had three other drug-related convictions, three felony convictions, and 10 misdemeanor convictions. The judge sentenced Tyler to not less than 20 months nor more than five years in jail, a sentence within the statutory limit.

Tyler appealed his sentence to the Nebraska Supreme Court which affirmed, finding no abuse of discretion. He now seeks federal habeas corpus relief. The state argues that he failed to exhaust his remedies in state court.

I. Exhaustion Doctrine

We review a habeas corpus petition after the state court has considered the petitioner’s claim. See Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986); Martin v. Solem, 801 F.2d 324, 330 (8th Cir.1986). He must present the substance of his federal habeas claim to the state court. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct 276, 277, 74 L.Ed.2d 3 (1982); Martin, 801 F.2d at 330. “It is not enough that all the facts necessary to support the federal claim” are presented. Martin, 801 F.2d at 330 (citing Harless, 459 U.S. at 6, 103 S.Ct. at 277). The petitioner must state his federal habeas claim with enough particularity that a specific constitutional right is relied on or “allege ‘a pattern of facts that is well within the mainstream of constitutional litigation.’ ” Id. 801 F.2d at 331 (citing Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir.1982)); Purnell v. Missouri Dep’t of Corrections, 753 F.2d 703, 707 (8th Cir.1985) (must present state court claims on same grounds as in federal proceeding). Once the state court has a “ ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional claim,” the exhaustion doctrine is satisfied. Harless, 459 U.S. at 6, 103 S.Ct. at 277; Martin, 801 F.2d at 330.

Tyler presented his Eighth Amendment claim to the state court. He stated in several pleadings that his sentence violated the Eighth Amendment, and he cited relevant case law. [1] Tyler need only present[*871] the state court with an opportunity to rule; he need not obtain a precise ruling. See Harless, 459 U.S. at 6, 103 S.Ct. at 277. He exhausted his state remedies. [2]

We address the merits of Tyler’s request for habeas relief.

II. Eighth Amendment

Tyler argues that a five-year sentence for possessing Vsth of a gram of hashish is cruel and unusual punishment violating the Eighth Amendment. [3] The Eighth Amendment prohibits sentences disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983).

To determine whether a sentence is so disproportionate that it violates the Eighth Amendment, we must (1) weigh the gravity of the offense and the harshness of the penalty, (2) compare sentences imposed for other crimes in the same jurisdiction, and (3) compare sentences imposed for the same crime in other jurisdictions. Id. at 292, 103 S.Ct. at 3010.

Even applying this balancing test, a successful challenge of a sentence is rare. Helm, 463 U.S. at 289-90, 103 S.Ct. at 3009-10 (citing Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980)); Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 705, 70 L.Ed.2d 556 (1982). We defer substantially to a legislature’s broad authority to determine the types and limits of punishment and to trial courts who have the discretion to sentence offenders. Helm, 463 U.S. at 290, 103 S.Ct. at 3009. “In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Helm, 463 U.S. at 290 n. 16, 103 S.Ct. at 3009 n. 16.

Notwithstanding Tyler’s well-written brief and research, extended analysis is not needed to determine that his sentence does not violate the Eighth Amendment. Rather, Supreme Court and circuit precedent establish that this sentence is not cruel and unusual. A review of case law indicates that the Supreme Court does not invalidate a sentence unless it is grossly disproportionate to the crime. [4] See Davis, 454 U.S. at 377, 102 S.Ct. at 707 (concurring, Powell, J.).

The Court found recently that two 20-year sentences for possessing nine ounces of marijuana and attempting to sell three ounces of marijuana, as well as LSD capsules, were not grossly excessive. Id. at 370, 102 S.Ct. at 703. A life sentence with parole in 12 years for three felonies involving fraud of sums less than $121 was also not grossly excessive. Rummel, 445 U.S. at 284-85, 100 S.Ct. at 1144-45.

We have followed these precedents by deferring to trial courts and state legislatures in determining appropriate sentences. United States v. DeNoyer, 811 F.2d 436, 441-42 (8th Cir.1987) (18-year sentence for sodomy not excessive); Stevens v. Armontrout, 787 F.2d 1282 (8th Cir.1986) (two-hundred-year sentence for second degree murder not excessive); Kohley v. [*872] United States, 784 F.2d 332 (8th Cir.1986) (54-month sentence for embezzlement not excessive); United States v. Stead, 740 F.2d 657 (8th Cir.), cert. denied, 469 U.S. 1090, 105 S.Ct. 600, 83 L.Ed.2d 709 (1984) (20 years for attempt to enter federally insured institution not excessive); Fowler v. Parratt, 682 F.2d 746, 752 (8th Cir.1982) (15-year sentence for fraud not excessive).

Though Tyler’s sentence may appear harsh, it does not violate the Eighth Amendment. He had several drug-type convictions. When a defendant has repeated offenses, the state need not treat him as a first offender. Rummel, 445 U.S. at 284, 100 S.Ct. at 1144; see Stead, 740 F.2d at 659. In deference to trial judges and legislatures, we deny this habeas corpus petition and Tyler’s motions.

AFFIRMED.

1

. Tyler cites the following from his briefs to the Nebraska Supreme Court: (1) "in excess of that which the nature of the offense and circumstances of the case demand and inflicts cruel and unusual punishment upon appellant in violation of his Eighth Amendment right to be free therefrom,"; (2) “is cruel and unusual punishment upon appellant proscribed by the Eighth[*871] Amendment to the U.S. Constitution,”; and (3) "to include the argument that Solent v. Helm, ... it was recognized that the Eighth Amendment proscripts against cruel and unusual_” (citations omitted).

2

. Rg., Hall v. Iowa, 705 F.2d 283, 287-88 (8th Cir.), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 307 (1983) (exhaustion when petitioner cited to case predicated on same ground as habeas petition); Morrow v. Wyrick, 646 F.2d 1229, 1232 (8th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 2101, 70 L.Ed.2d 216 (1981) (exhaustion when petitioner presented basic argument of constitutional issue and citations to state court;); cf. Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980), ce rt. denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020 (1983) (no exhaustion when references to denial of fair trial without any citation to federal constitution or federal case).

3

. The Eighth Amendment provides "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

4

. Helm found cruel and unusual punishment, and thus a grossly disproportionate sentence, because the defendant was sentenced to life without the possibility of parole. Helm, 463 U.S. at 277, 103 S.Ct. at 3001. Cf. Rummel, 445 U.S. at 263, 100 S.Ct. at 1133.