In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1164

Lewis Henry,

Petitioner-Appellant,

v.

James Page, Warden, Stateville
Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98-3270--Jeanne E. Scott, Judge.


Argued June 6, 2000--Decided August 4, 2000



  Before Bauer, Manion, and Williams, Circuit Judges.

  Bauer, Circuit Judge. Lewis Henry petitioned the
district court for a writ of habeas corpus
pursuant to 28 U.S.C. sec. 2254. The district
court denied the petition, but granted Henry a
certificate of appealability on two issues. We
resolve both of these issues against Henry and
affirm the district court.

I.   Background

  In May 1992, an Illinois state police officer
stopped Henry for a traffic violation. The
officer requested and obtained consent to search
Henry’s vehicle. With the assistance of a dog
trained to smell illegal drugs, police found 2
bags of a green leafy substance they believed was
cannabis and 15 bags of white powder that they
suspected was cocaine. Henry was arrested and
charged with unlawful possession with the intent
to deliver cannabis and unlawful possession with
the intent to deliver cocaine./1

  A month after Henry’s arrest, on June 4, 1992,
Henry’s attorney filed a motion for discovery
requesting "a list of the items of physical
evidence intended to be used by the prosecution
and for a copy thereof, if possible, and . . .
the right to inspect the same." The prosecution
responded that, upon reasonable notice and
request, Henry could inspect, obtain, test, or
photograph the physical evidence, including the
substances seized during the traffic stop.

  In addition to the criminal charges, the
prosecution filed a civil forfeiture complaint
against Henry on October 2, 1992. By agreement of
the parties, the trial court entered a stipulated
forfeiture order on November 2, 1992.

  In August 1993, more than one year after his
initial discovery request, Henry filed a motion
requesting samples of the substances seized
during the traffic stop so that he could subject
them to analysis and testing. During the hearing
on that motion, the prosecution disclosed that
the substances had been destroyed. Apparently, an
Illinois state police evidence custodian had
received the civil forfeiture order in Henry’s
case and mistakenly thought that Henry’s criminal
case had also been completed. Believing that
Henry’s criminal case was closed and the evidence
no longer needed, the evidence custodian
destroyed the two substances. Upon learning that
the substances had been destroyed, Henry filed a
motion in limine seeking to bar any evidence of
the results from the state’s testing of the
substances. Henry claimed that since he was
unfairly denied the opportunity to independently
analyze the substances, the government should be
prohibited from introducing the results of its
scientific testing of the substances. The trial
court denied the motion.

  At Henry’s trial, a chemist testified that he
received the substances seized from Henry’s
automobile and tested them. The chemist stated
that the white powdery substance weighed 410.9
grams and contained cocaine. He also testified
that the green leafy substance seized from
Henry’s car contained cannabis and weighed 743.4
grams.

  On September 22, 1993, the jury found Henry
guilty of unlawful possession of cannabis with
the intent to deliver and unlawful possession of
cocaine with the intent to deliver. The trial
court sentenced Henry to an enhanced 80 year
prison term for the cocaine conviction and a
concurrent 7 year term for the cannabis
conviction. The court imposed the 80 year
sentence under an Illinois statute that allows a
court to double a repeat drug offender’s
sentence. See 720 ILCS 570/408(a). The court also
imposed various fines.

  Henry appealed his case to the Illinois
Appellate Court, which affirmed the important
parts of his conviction and sentence, but gave
him a $505 credit against his fines. See People
v. Henry, No. 4-93-1016 (Ill. App. Ct., July 14,
1997) (unpublished order). Henry next filed a
petition for leave to appeal to the Illinois
Supreme Court, but that request was denied. See
People v. Henry, 686 N.E.2d 1167 (1997). And
Henry then sought a writ of certiorari with the
United States Supreme Court, but that petition,
too, was denied. See Henry v. Illinois, 523 U.S.
1029 (1998).

  On September 30, 1998, Henry filed a petition
for a writ of habeas corpus under 28 U.S.C. sec.
2254 with the district court. Henry’s habeas
petition raised six arguments, but the district
court found that only two of them were properly
presented for federal habeas review: (1) Henry’s
claim that he was denied due process of law when
the state destroyed the substances seized from
his car and introduced evidence that those
substances were cannabis and cocaine; and (2) his
claim that his 80 year sentence violated the
Eighth Amendment because it was disproportionate
to the crime for which it was imposed./2 The
district court reviewed these claims and found no
basis for issuing a writ of habeas corpus, but
did find an adequate basis for issuing a
certificate of appealability on both issues. See
28 U.S.C. sec. 2253(b)(2). We now consider the
merits of Henry’s claims.

II.   Analysis

  The statute governing this habeas case provides
that:

(d) [a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim--

(1) 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 . . . .

28 U.S.C. sec. 2254(d)(1). Habeas relief under
sec. 2254(d)(1) is appropriate only if "the
Supreme Court has ’clearly established’ the
propositions essential to [the petitioner’s]
arguments." Mueller v. Sullivan, 141 F.3d 1232,
1234 (7th Cir. 1998). A rule is "clearly
established" only if it is compelled by existing
Supreme Court precedent. Hogan v. Hanks, 97 F.3d
189, 192 (7th Cir. 1996). "We may no longer rely
upon our own precedent or that of other circuit
courts of appeals to grant a writ." Schaff v.
Snyder, 190 F.3d 513, 522 (7th Cir. 1999).
Rather, the petitioner must have a Supreme Court
case to support his claim, "and that Supreme
Court decision must have clearly established the
relevant principle as of the time of his direct
appeal." Id. If a petitioner can support his
claim with clearly established Supreme Court
precedent, he must next show that the state
court’s decision was "contrary to" or "involved
an unreasonable application" of that federal law.
See Bocain v. Godinez, 101 F.3d 465, 471 (7th
Cir. 1996). Whether the state courts and federal
district court adhered to these standards is a
matter that we review de novo. See Sanchez v.
Gilmore, 189 F.3d 619, 623 (7th Cir. 1999).

  Henry first argues that he was deprived of due
process because the state destroyed the
substances seized from his car but nonetheless
introduced evidence that those substances were
cannabis and cocaine. According to Henry, this
violated his due process rights because it
prevented him from independently analyzing the
substances and possibly rebutting the state’s
evidence that those substances were, in fact,
cannabis and cocaine. Henry insists that the
destruction of the physical evidence contravenes
his clearly established right to have a fair
opportunity to present a meaningful and effective
defense. See, e.g., Ake v. Oklahoma, 470 U.S. 68,
76 (1985); Chambers v. Mississippi, 410 U.S. 284,
294 (1973). The Supreme Court has held that the
constitutional right to present a meaningful
defense includes access to evidence which is
material to guilt or punishment. United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982);
Brady v. Maryland, 373 U.S. 83, 87 (1963). Henry
claims the state violated these clearly
established rights in his case.

  In cases very similar to this one, the Supreme
Court has twice considered whether the
destruction of evidence violates the Due Process
Clause. In California v. Trombetta, 467 U.S. 479
(1984), defendants who had been arrested for
driving under the influence of alcohol claimed
that their rights to analyze physical evidence
were violated when the state destroyed samples of
their breath taken at the time of their arrests.
The Court rejected the notion that destruction of
the breath samples violated due process. Id. at
488-89. In doing so, the Court pointed out that
the officers who destroyed the evidence "were
acting ’in good faith and in accord with their
normal practice.’" Id. at 488 (quoting Killian v.
United States, 368 U.S. 231, 242 (1961)). The
Court emphasized that "the record contains no
allegation of official animus towards respondents
or of a conscious effort to suppress exculpatory
evidence." Trombetta, 467 U.S. at 488. Aside from
the absence of bad faith, the Court also found
that the nature of the evidence did not require
preservation of the breath samples. Specifically,
the Court said:

[w]hatever duty the Constitution imposes on the
States to preserve evidence, that duty must be
limited to evidence that might be expected to
play a significant role in the suspect’s defense.
To meet this standard of constitutional
materiality, evidence must both possess an
exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature
that the defendant would be unable to obtain
comparable evidence by other reasonably available
means.

Id. at 488-89. The Court found that the evidence
lacked any prior exculpatory value to defendants
because the reliability of the breath tests was
very high and past errors from the tests were
extremely limited. The Court also pointed out
that defendants had access to other evidence
which they could have used to impeach the
reliability of the breath sample evidence. In the
end, the Court determined that there was no
constitutional violation because there was no bad
faith and the evidence was immaterial to the
defense since it had no exculpatory value before
being destroyed. Id. at 489-91.

  The Court confronted the destruction of evidence
issue again in Arizona v. Youngblood, 488 U.S. 51
(1988). In Youngblood, a defendant convicted of
sexual assault claimed a due process violation
because the state failed to properly test the
victim’s clothing for physical evidence and also
failed to refrigerate the clothing which would
have preserved the evidence for additional future
testing. In rejecting this argument, the Court
observed that the evidence was only "potentially
exculpatory" and therefore failed Trombetta’s
requirement that the evidence possess an
exculpatory value apparent before the evidence
was destroyed. Id. at 56-57. The Court then
reiterated the requirement there be some
governmental bad faith by stating, "[w]e
therefore hold that unless a criminal defendant
can show bad faith on the part of the police,
failure to preserve potentially useful evidence
does not constitute a denial of due process of
law." Id. at 58.

  In light of the principles announced in
Trombetta and Youngblood, it is readily apparent
that the Illinois courts did not violate Henry’s
due process rights by admitting evidence of the
state’s test results which showed that the
substances seized from Henry’s car were cannabis
and cocaine. First and foremost, Henry fails to
demonstrate any bad faith by the police. Rather,
Henry agrees that the evidence custodian
mistakenly destroyed the drugs after receiving
the civil forfeiture order and incorrectly
believing that his criminal case had been
completed and the evidence no longer needed.
Since he has demonstrated no bad faith by the
government, there is no constitutional violation.
See Youngblood, 467 U.S. at 57-58; Trombetta, 467
U.S. at 488; see also Jones v. McCaughtry, 965
F.2d 473, 477-78 (7th Cir. 1992); Balfour v.
Haws, 892 F.2d 556, 565 (7th Cir. 1989). In
addition to not showing bad faith, Henry has also
failed to demonstrate that the substances seized
from his car were material to his defense. There
is nothing in the record to suggest that the
substances possessed an exculpatory value that
was apparent before they were destroyed. In fact,
the only evidence in the record illustrates that
the substances were cannabis and cocaine. Because
there was no showing of bad faith, and nothing to
suggest that the destroyed evidence was not
cannabis and cocaine, the Illinois courts’
decisions to admit the evidence was not contrary
to or an unreasonable application of clearly
established federal law as announced by the
Supreme Court in Trombetta and Youngblood.
Accordingly, the district court properly denied
Henry’s argument on this issue./3

  Henry’s second argument is that the state
courts violated the Eighth Amendment’s
prohibition against cruel and unusual punishment
by imposing an 80 year sentence for his
conviction of unlawful possession of cocaine with
the intent to deliver. Henry bases this claimed
constitutional violation on Solem v. Helm, 463
U.S. 277 (1983) in which the Supreme Court held
that a sentence may violate the Eighth Amendment
if it is grossly disproportionate to the crime
for which it is imposed. Id. at 290-92; see also
United States v. Simpson, 8 F.3d 546, 550 (7th
Cir. 1993).

  Since it decided Solem, the Supreme Court has
revisited the question of whether the Eighth
Amendment safeguards against sentences that are
grossly disproportionate to the crime of
conviction. In Harmelin v. Michigan, 501 U.S. 957
(1991), a splintered Court expressed several
different views of the rule announced in Solem
and divergent opinions of whether Solem remains
good law. Since the divided decision in Harmelin,
several courts have questioned whether Solem
survives. See, e.g., United States v. Kratsas, 45
F.3d 63, 67 (4th Cir. 1995). Notwithstanding this
apparent confusion, "the continuing applicability
of the Solem test is indicated by the fact that
a majority of the Harmelin Court either declined
expressly to overrule Solem or explicitly
approved of Solem." Id. Our court has adhered to
Solem and we continue to recognize some degree of
sentencing proportionality in the Eighth
Amendment. See Koo v. McBride, 124 F.3d 869, 875
(7th Cir. 1997); Bocain v. Godinez, 101 F.3d 465,
472-73 (7th Cir. 1996). We therefore accept Solem
as clearly established federal law as required by
28 U.S.C. sec. 2254(d)(1). We do so, however,
bearing in mind our previous holding that "in
non-capital felony convictions, a particular
offense that falls within legislatively
prescribed limits will not be considered
disproportionate unless the sentencing judge has
abused his discretion." United States v. Vasquez,
966 F.2d 254, 261 (7th Cir. 1992).

  In this case, we cannot say that the Illinois
courts’ decisions imposing and upholding Henry’s
80 year sentence were unreasonable or contrary to
clearly established federal law. Initially, it is
important to note that Henry’s sentence was
authorized by Illinois law and Henry does not
dispute that his previous convictions made him
eligible for the enhanced sentence. Additionally,
there is no basis upon which to conclude that the
sentencing court abused its discretion by
imposing this sentence. Henry was a repeat drug
offender and on this occasion was caught with a
substantial amount of cocaine that he was
planning to distribute for sale to end users.
And, the fact that he was simultaneously in
possession of 743 grams of cannabis that he
planned to distribute served as a serious
aggravating factor. In light of these
circumstances, there was no abuse of discretion
in Henry’s sentence and the district court
properly decided that Henry was not entitled to
a writ of habeas corpus for receiving a grossly
disproportionate sentence.


III.   Conclusion

  For the foregoing reasons, the district court
is affirmed.

/1 Henry was also charged with (and later convicted
of) unlawful possession of cannabis and unlawful
possession of cocaine. After Henry’s conviction,
however, these lesser-included offenses were
merged into his convictions for unlawful
possession with the intent to deliver.

/2 Henry does not contest the district court’s
ruling that his other four claims were either
procedurally defaulted or not cognizable under
federal habeas review.

/3 Henry relies heavily on the Illinois Supreme
Court’s decision in People v. Newberry, 652
N.E.2d 288 (Ill. 1995) to support his due process
claim. We are not persuaded by his arguments
based on Newberry. Aside from being factually
distinguishable, Newberry is not authority from
the United States Supreme Court and as such
cannot support a writ of habeas corpus under 28
U.S.C. sec. 2254(d)(1). See Schaff, 190 F.3d at
522.
