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February 12, 1985

RICHARD CARTER, Petitioner, against ROBERT J. HENDERSON, Respondent

The opinion of the court was delivered by: KNAPP



 Richard Carter petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court appointed counsel by Order dated November 28, 1983, but because of some disagreements between petitioner and counsel, petitioner has submitted several pro se memoranda in addition to those submitted by counsel. After consideration of all the papers so submitted, and for the reasons which follow, we deny the writ.

 Petitioner was convicted, following a jury trial in Supreme Court, New York County, of three counts of Attempted Murder (Penal Law § 110.00 and former Penal Law §§ 125.25 and 125.30), four counts of Robbery in the First Degree (Penal Law § 160.15), and court [count] of Assault in the First Degree (Penal Law § 120.10), one count of Felonious Possession of a Weapon (former Penal Law § 265.05), and one count of Bail Jumping in the First Degree (Penal Law § 215.57). In April, 1977 petitioner was sentenced to ten concurrent prison terms: three of from fifteen years to life on the attempted murder conviction, four of from five to fifteen years on the robbery convictions, an indeterminate term of five years on the weapons conviction, and an indeterminate term of three years on the bail jumping conviction.

 Petitioner appealed his convictions to the Appellate Division, First Department, New York Supreme Court, which affirmed without opinion on May 9, 1978. People v. Carter (1st Dept. 1978) 63 A.D.2d 866, 404 N.Y.S.2d 933 . On June 21, 1978 leave to appeal to the New York Court of Appeals was denied, People v. Carter, (1978) 45 N.Y.2d 777, and on October 16, 1978, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Carter v. New York (1978) 439 U.S. 914, 58 L. Ed. 2d 261, 99 S. Ct. 287 .

 On April 27, 1981, petitioner moved in the trial court to set aside his sentence pursuant to § 440.20 of the New York Criminal Procedure Law. On June 5, 1981, without having held a hearing, Justice Burton Roberts denied the motion in a written decision and, on July 27, denied petitioner's motion to reargue. Leave to appeal to the Appellate Division was denied on July 16, 1981. On May 12, 1983, petitioner filed the instant petition for writ of habeas corpus.

 Petitioner's conviction arose out of an October 24, 1971 robbery of a Manhattan record store in which he and two accomplices, each of whom was armed, robbed the store's employees and patrons. During the robbery one of the robbers was shot and later died, one of the police officers was shot and wounded, and several police officers were fired at from a distance of six feet. Eventually, all three participants in the robbery surrendered to the police.

 Petitioner's principal contention is that his sentence of from fifteen years to life is so grossly disproportionate to the crime of attempted murder as to violate the Eighth Amendment's prohibition against cruel and unusual punishment.


 Petitioner, who has previously been convicted of aggravated assault and battery (1950) and of assault and battery with intent to murder (1964) was in the instant case convicted of three counts of attempted murder in the first degree (attempting to murder an on-duty police officer), four counts of robbery in the first degree, one count of the felonious possesion [possession] of a weapon, and one count of felonious bail jumping. The facts upon which his sentence is based have already been set forth, but deserve elaboration: Petitioner and his accomplices set out to rob a record store; when one of the intended victims proved recalcitrant, petitioner and his accomplices went out and kidnapped an innocent passerby and threatened him with death in the presence of the recalcitrant victim in order to induce the latter to become more cooperative. When uniformed police arrived to interrupt these proceedings, petitioner and his accomplices shot at them at point-blank range, wounding one of them but -- fortunately -- not killing any of them.

 Quite understandably, petitioner does not contend that 15 years to life is "cruel and unusual" punishment for this particular conduct. Instead, citing Solem v. Helm (1983) 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 he claims that the statutory scheme upon which his sentence was based is defective. Petitioner totally misconceives the authority upon which he relies.

 Solem v. Helm -- which dealt with a life sentence imposed on an alcoholic (who had never been convicted or even accused of a crime of violence) for cashing a $100 bad check while intoxicated -- commands us only to examine each individual sentence to determine whether it is "disproportionate" in light of the facts upon which it is based and other objective criteria. It does not command us to examine the statutory scheme pursuant to which a particular sentence was imposed. The surest indication of this distinction is the Court's observation that:

We agree . . . that "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] ...

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