223 F.3d 477 (7th Cir. 2000)
Lewis Henry, Petitioner-Appellant,v.James Page, Warden, Stateville  Correctional Center, Respondent-Appellee.
No. 00-1164
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 6, 2000Decided August 4, 2000

Appeal from the United States District Court  for the Central District of Illinois.  No. 98-3270--Jeanne E. Scott, Judge.
Before Bauer, Manion, and Williams, Circuit Judges.
Bauer, Circuit Judge.


1
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

2
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


3
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.


4
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.


5
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.


6
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.


7
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.


8
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).


9
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


10
(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

11
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--


12
(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 . . . .


13
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).


14
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.


15
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


16
[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.


17
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.


18
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.


19
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


20
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).


21
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).


22
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

23
For the foregoing reasons, the district court  is affirmed.



Notes:


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.


