                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-4023
                                  ___________

Joaquin Ramos,                        *
                                      *
                  Appellant,          *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of South Dakota.
Douglas Weber, Warden,                *
South Dakota State Penitentiary,      *
                                      *
                  Appellee.           *
                                 ___________

                            Submitted: August 20, 2002

                                 Filed: August 27, 2002
                                  ___________

Before HANSEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

FAGG, Circuit Judge.

       After drinking at a local bar, Joaquin Ramos returned to the home he shared
with his fiancee, Debbie Martinez, and her children to find Debbie not at home.
Ramos learned Debbie had taken a cab to a bar, called the cab company, and angrily
demanded that the cab driver turn around and bring Debbie home. Ramos became
violent while awaiting Debbie’s return and threatened Johnny Jibben, a coworker who
had given Ramos a ride home. Jibben’s wife arrived and took the children outside.
Ramos demanded that the children come back in the house. Jibben and Ramos began
to fight. By the time Debbie arrived home, Jibben was holding Ramos down on the
floor. Debbie told Jibben she could handle the situation and asked him to release
Ramos. Ramos then slapped Debbie and threw a table. Ramos retrieved a gun from
the rear of the house. When Debbie attempted to prevent Ramos from following
Jibben outside, Ramos pulled her hair and hit her with the gun. The gun discharged,
shooting Debbie in the neck and killing her.

        Ramos pleaded guilty to first-degree manslaughter. The sentence was left open
by the plea agreement, and under South Dakota law, ranged from a term of years to
life in prison. S.D. Codified Laws §§ 22-6-1, 22-16-15 (Mitchie 1998). Because life
imprisonment forecloses the need for rehabilitation, under South Dakota law, a life
sentence may be imposed when rehabilitation is unlikely, provided the life sentence
does not constitute excessive retribution. State v. Ramos, 545 N.W.2d 817, 821-22
(S.D. 1996) (Ramos I). Although no evidence on Ramos’s prospects at rehabilitation
was presented at the sentencing hearing, the trial court concluded that because of
Ramos’s history of abusive and controlling relationships with women, any prospect
of rehabilitation was remote. The trial court sentenced Ramos to life in prison
without the possibility of parole. On appeal, the South Dakota Supreme Court
affirmed Ramos’s conviction and sentence. Ramos I, 545 N.W.2d at 818. Ramos
then sought habeas relief in state court, claiming the sentencing court denied him due
process by concluding his prospects for rehabilitation were remote, and counsel was
ineffective for failing to request psychological assessments for use at sentencing. The
South Dakota Supreme Court rejected these contentions and denied habeas relief.
Ramos v. Weber, 616 N.W.2d 88, 90 (S.D. 2000) (Ramos II).

      Ramos then filed a petition seeking federal habeas relief. The district court*
denied Ramos’s petition, but granted a certificate of appealability on two issues:
whether Ramos’s attorneys were ineffective for failing to present evidence about his


      *
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.

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prospects of rehabilitation at sentencing, and whether the life sentence violated the
Eighth Amendment’s prohibition against cruel and unusual punishment. Having
reviewed the district court’s determinations de novo, we affirm. Carter v. Kemna,
255 F.3d 589, 591 (8th Cir. 2001), cert. denied, 122 S. Ct. 822 (2002).

        A federal court’s power to grant habeas relief to a state prisoner is limited to
cases where the state court’s rejection of the merits of a prisoner’s 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) (2000); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court
decision is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or
it the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision
is an unreasonable application of federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court’s decision but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. We presume South
Dakota’s factual findings are correct. 28 U.S.C. § 2254(e)(1).

      We first consider and reject Ramos’s claim that counsel was ineffective at
sentencing for failing to request psychological assessments of rehabilitation potential.
In order to prove counsel was ineffective, Ramos must show counsel’s assistance fell
below the wide range of reasonable professional assistance, and Ramos was
prejudiced by counsel’s actions. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Although Ramos offers two psychological evaluations conducted for the state habeas
proceeding which offer hope of rehabilitation potential, we determine whether
counsel’s actions were reasonable considering the circumstances known by the
attorney at the time of sentencing, without the benefit of hindsight. Simmons v. Iowa,

                                          -3-
28 F.3d 1478, 1481 (8th Cir. 1994). The South Dakota Supreme Court rejected
Ramos’s ineffective assistance claim, concluding Ramos could not show prejudice.
We agree.

       Although the psychological assessments presented by Ramos offer hope for
rehabilitation, the expert opinions do not contradict the trial court’s view that
rehabilitation would be a long-term process. As the South Dakota Supreme Court
points out, both experts conditioned their estimate of rehabilitation potential on
Ramos’s cooperation, ability to refrain from using alcohol or drugs, motivation, and
imposition of stringent parole conditions. Ramos II, 616 N.W.2d at 93. Even if the
opinions had been requested and offered at sentencing, the trial court was not
required to accept the expert’s opinions on rehabilitation. Id. Further, there is no
guarantee the expert opinions would have been the same if the evaluations had been
conducted before sentencing rather than three years later, before the habeas
proceeding. Indeed, a competency evaluation conducted before trial involved the
same test later used by Ramos’s experts (the Minnesota Multiphasic Personality
Inventory) but yielded different results. At sentencing, counsel presented lay
witnesses and evidence showing Ramos as a “decent person who did not intend the
death of his girlfriend.” Id. Counsel believed using psychological evidence showing
“Ramos as emotionally or mentally impaired could be seen as an attempt to excuse
his behavior” and might contradict their strategy of showing Ramos as genuinely
remorseful. Id. Contrary to Ramos’s assertion, counsel did not neglect investigating
Ramos’s mental health and, in fact, requested a psychiatric evaluation to determine
whether Ramos was competent to stand trial. Lingar v. Bowersox, 176 F.3d 453, 461
(8th Cir. 1999). Counsel is not required to obtain expert evidence on rehabilitation
and, in most cases, may rely on the presentence investigation report. Ramos II, 616
N.W.2d at 94. Given this evidence, we cannot say it was contrary to or an
unreasonable application of federal law for South Dakota to conclude Ramos did not
receive prejudicial ineffective assistance of counsel when counsel failed to request
a psychological assessment of rehabilitation potential. Williams, 529 U.S. at 413.

                                        -4-
       Second, we consider and reject Ramos’s contention that his life sentence
violates the Eighth Amendment prohibition against cruel and unusual punishment.
To prove an Eighth Amendment violation, Ramos must show the life sentence is
grossly disproportionate to the crime of first-degree manslaughter. United States v.
Prior, 107 F.3d 654, 660 (8th Cir. 1997). In determining whether a sentence is
grossly disproportionate, “we first compare the gravity of the offense committed to
the harshness of the penalty imposed.” Henderson v. Norris, 258 F.3d 706, 709 (8th
Cir. 2001). In evaluating the gravity of the offense, “we consider the harm caused or
threatened to the victim or to society and the culpability and degree of involvement
of the defendant.” Id. We evaluate the culpability of the defendant by looking at the
defendant’s intent and motive in committing the crime. Id. If the penalty appears
grossly disproportionate given the offense, we then compare the sentence with
sentences imposed on other criminals in the same jurisdiction and the sentences
imposed for violations of the same crime in other jurisdictions. Hutto v. Weber, 275
F.3d 682, 684 (8th Cir. 2001). We begin by addressing Ramos’s culpability.

       Both the prosecution and defense agree that Ramos did not intend to kill
Debbie. In that respect, Ramos’s case is different from cases of intentional murder
or kidnapping and torture where we have concluded life sentences are not grossly
disproportionate. See, e.g., Rhode v. Olk-Long, 84 F.3d 284, 290 (8th Cir. 1996)
(holding a life sentence is not grossly disproportionate for the murder of a four-month
old child with malice aforethought); Simmons, 28 F.3d at 1480 (life sentence for first-
degree kidnapping and torture of child not grossly disproportionate). Despite the lack
of intent to kill, however, Ramos is fully culpable for Debbie’s death. Ramos chose
to drink alcohol, chose to retrieve a firearm to frighten Jibben, and chose violently to
assault Debbie. Ramos is solely responsible for making each of these choices, and
thus bears the responsibility for Debbie’s resulting death.

      Having considered culpability, we next acknowledge the gravity of the offense.
South Dakota has determined that killing another person, whether it be murder or

                                          -5-
manslaughter, is sufficiently grave to deserve life imprisonment. S.D. Codified Laws
§§ 22-6-1, 22-16-15 (Mitchie 1998). Legislatures are entitled to wide latitude in
prescribing punishments. Rhode, 84 F.3d at 290. In assigning the maximum possible
penalty, the trial court discussed Ramos’s threatened harm to society arising from his
need to control those around him. The South Dakota Supreme Court concluded that
these statements about Ramos’s need for control and danger to others were sufficient
to support the life sentence and did not constitute excessive retribution. Ramos I, 545
N.W.2d at 822. We agree.

       Ramos argues the sentence is disproportionately harsh because this was his first
felony offense. Several cases upholding a life sentence for noncapital crimes have
considered the defendant’s recidivist status. Rummel v. Estelle, 445 U.S. 263, 265
(1980) (upholding constitutionality of life sentence for recidivist with convictions for
fraudulent use of credit card, forging a check, and obtaining money by false
pretenses); United States v. Kratsas, 45 F.3d 63, 65 (4th Cir. 1995) (holding the law
is well-settled that mandatory life sentences are constitutional when applied to repeat
felony drug offenders). Although Ramos had not been convicted of a felony before
Debbie’s killing, the record shows this was not Ramos’s first violent act. Ramos had
been convicted of misdemeanors including simple assault for hitting his then-wife
Angela because he did not like what she was wearing, simple assault for beating a
fellow bar patron that resulted in visible bruises and a fractured rib, and simple
assault for threatening his girlfriend Brenda with a butcher knife. In addition, the
record shows witness accounts of Ramos’s repeated domestic assaults on his wife
Angela, girlfriend Brenda, and fiancee Debbie. (J.A. at 244-253). Ramos reportedly
threatened to kill these women if they left him. He smashed car windows and stereos
when angry and left bruises on his loved ones from the beatings. The trial court noted
these incidents of violence were becoming more frequent and Ramos could not
control his need to control others. Given the trial court’s careful consideration of
Ramos’s record of violence and the circumstances surrounding Debbie’s killing, we
cannot conclude sentencing Ramos to life in prison without the possibility of parole

                                          -6-
was grossly disproportionate to the crime. Because we do not find the life sentence
too severe a penalty given the crime, we need not compare Ramos’s sentence to those
of other offenders or other jurisdictions. Hutto, 275 F.3d at 684. In sum, we
conclude the South Dakota Supreme Court’s rejection of Ramos’s Eighth Amendment
claim is neither contrary to nor an unreasonable application of clearly established
federal law. Williams, 529 U.S. at 413.

      Having concluded South Dakota’s rulings are not contrary to nor an
unreasonable application of clearly established federal law, we affirm the district
court’s denial of Ramos’s habeas petition.

      A true copy.

            Attest:

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




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