                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 14 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CORY DEAN LUMAN,

                Plaintiff-Appellant,

    v.                                                    No. 97-2073
                                                    (D.C. No. CIV-94-1313)
    DONALD A. DORSEY, Warden;                              (D. N.M.)
    ATTORNEY GENERAL OF THE
    STATE OF NEW MEXICO,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore,



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appellant’s request for oral argument is denied, and the case is ordered submitted

without oral argument.

      Petitioner Cory Dean Luman appeals the district court’s denial of his

petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal,

petitioner asserts (1) ineffective assistance of counsel at sentencing; (2) the

district court abused its discretion in improperly considering petitioner’s mental

health in sentencing in violation of the Fifth and Fourteenth Amendments; and (3)

the sentences imposed were disproportionate to the offenses committed thus

violating the Eighth and Fourteenth Amendments. We have previously granted a

certificate of appealability, we have jurisdiction pursuant to 28 U.S.C. § 2253,

and we affirm.


                                   I. Background

      Petitioner was charged with eighteen counts of aggravated burglary,

aggravated battery, criminal sexual penetration, and kidnaping. The first seven

counts arose out of a rape committed against a female victim in her home on or

about January 2, 1989. The remaining ten counts related to a rape committed

against another female victim in her home on or about January 15, 1992.

Petitioner pled guilty to six counts of the indictment and to habitual offender

status due to a previous felony conviction for criminal sexual contact of a minor,

his niece. In return, the state dismissed the remaining twelve counts of the

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indictment. Petitioner was sentenced to nine years’ imprisonment on each count

to run consecutively plus a one-year enhancement for the habitual offender status

for a total of fifty-five years.


                                       II. Discussion

                                   A. Standard of Review

       In reviewing the denial of a federal habeas corpus petition, we accept the

district court’s findings of fact unless clearly erroneous, and we review the

court’s conclusions of law de novo. See Matthews v. Price, 83 F.3d 328, 331

(10th Cir. 1996).

                        B. Ineffective Assistance of Counsel

       Initially, petitioner asserts that he received ineffective assistance of counsel

at sentencing when his attorney “recommended the maximum sentence to the

court and the facts justified imposition of a lesser sentence.” Appellant’s Br. in

Chief at 11. Petitioner alleges that his counsel should have argued in his favor

for some sentencing relief, and his failure to do so constituted ineffective

assistance.

       A district court decision “that [counsel] was not ineffective is a mixed

question of fact and law which we review de novo.” United States v. Carter, No.

97-2122, 1997 WL 770595, at *9 (10th Cir. Dec. 16, 1997). The district court’s

findings of fact underlying the decision, however, are reviewed only for clear

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error. Id. To prevail on a claim of ineffective assistance, petitioner must show

that counsel’s performance “fell below an objective standard of reasonableness,”

and that counsel’s deficient performance so prejudiced the proceeding, that absent

the alleged errors, the outcome would have been different. Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984).

      Petitioner asserts that counsel made certain statements at sentencing that

prejudiced his sentencing, and that without those statements, petitioner would

have received a lighter sentence. He also contends that counsel failed to argue in

his behalf. Specifically, petitioner alleges that counsel’s statement to the court

that petitioner was “truly sorry, but sorry doesn’t cut it with the Court, doesn’t cut

it with the community,” his statement that petitioner “molested a woman in her

home and destroyed her feeling of safety before he was apprehended,” and his

statement that petitioner “should be given the maximum sentence of 55 years,” R.

Vol. I, tab 8, ex. C-1 at 12-13, so prejudiced the sentencing as to be considered

ineffective assistance.

      We agree that the statements petitioner refers to in his brief, when read

cold and out of context, produce some cause for concern. When read in the full

content of counsel’s advocacy at the sentencing hearing, however, counsel’s

statements, although possibly not “prudent or appropriate,” Duvall v. Reynolds,

No. 96-6329, 1997 WL 758810, at *3 (10th Cir. Dec. 10, 1997), were nonetheless


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constitutionally permissible. As expanded below, it appears that counsel believed

his client would get the presumptive sentence of nine years on each count and that

his forthright acknowledgment of the seriousness of the offense could avoid the

one-third increase for aggravating circumstances and persuade the court to

combine a substantial suspension of sentence with conditions of treatment and

counseling.

      Even if counsel’s remarks at sentencing were to be considered

constitutionally deficient performance, however, we determine that petitioner

failed to establish that the district court’s sentencing decision was prejudiced by

counsel’s statements, or that, but for counsel’s remarks, the sentence would have

been different. See Strickland, 466 U.S. at 692-93. The six counts to which

petitioner pled guilty were all second degree felonies which in New Mexico carry

a basic sentence of nine years. See N.M. Stat. Ann. § 31-18-15(A)(3). This basic

sentence can be altered by one-third for mitigating or aggravating circumstances.

See id. § 31-18-15.1. Accordingly, when accepting petitioner’s plea, the court

correctly explained that the sentencing range for each of the counts in the plea

was no more that twelve or less than six years. 1 The court further explained to


1
       Petitioner erroneously states in his brief that the plea agreement
“contemplated a range of imprisonment of six to nine years for each offense.”
Appellant’s Br. in Chief at 20. It is evident that petitioner clearly understood his
plea to carry a sentencing range of six to twelve years for each offense, with a
                                                                        (continued...)

                                         -5-
petitioner that his plea carried a presumptive sentence of nine years on each count

and that the sentences could run consecutively for a total of fifty-four years. The

court also explained that due to a prior conviction, petitioner could receive an

additional one-year sentence as an habitual offender. See id. § 31-18-17. As

predicted, petitioner was sentenced to fifty-five years’ incarceration. It is clear

that under the prejudice prong of Strickland, petitioner failed to show that, but for

counsel’s remarks or omissions, his sentence would have been less.

      Petitioner further asserts that counsel failed to argue mitigating factors

which could have influenced the sentence in his favor, including his abusive

childhood, his emotional problems, the sudden death of his brother, and his need

for treatment. On the contrary, our review of counsel’s remarks at sentencing

indicates that he mentioned all of these factors. See R. Vol. I, tab 8, ex. C-1 at

12-14. Moreover, counsel elicited testimony from Rob Colby, an evaluator with

the Forensic Evaluation Service, who specifically requested that the court provide

petitioner with mandatory treatment as part of his incarceration. See id. at 7. In

addition, counsel elicited testimony from petitioner’s father who opined that

petitioner needed “help.” Id. at 11-12. Counsel then requested that the court


1
 (...continued)
“presumptive sentence of nine years.” Tr. of Plea, May 21, 1992, at 2. Based on
the six to twelve year range explained by the court at the time petitioner entered
his plea, petitioner’s repeated assertions in his brief that the sentencing court
imposed the “maximum” sentence is also in error.

                                          -6-
suspend all but twenty or twenty-five years of petitioner’s sentence conditioned

on a five-year probation period during which time he could receive needed

therapy and sex abuse counseling within the prison environment with the goal of

rejoining the community. See id. at 13-14. In conclusion, we determine that

counsel’s advocacy at petitioner’s sentencing, although perhaps clumsy, did

not constitute deficient performance which prejudiced the proceeding, and we

therefore reject petitioner’s claim of ineffective assistance of counsel.



                            C. Mental Health Factors

      Next, petitioner alleges that in sentencing him, the court failed to consider

mental health factors which contributed to his offenses in violation of his due

process rights. Specifically, petitioner alleges that the court should have

considered his abusive childhood, the recent untimely death of his brother, and his

need for treatment as factors mitigating his sentence.

      Initially we note that a sentencing court’s failure to consider mitigating

factors does not constitute a violation of constitutional rights. See Scrivner v.

Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995) (no violation of constitutional rights

occurs when court does not consider mitigating factors during sentencing in

noncapital case). The record indicates that the sentencing court was attentive to

the statements of one of the victims, the evaluating psychologist, petitioner’s


                                          -7-
father, petitioner’s counsel, and petitioner, as well as to the prosecution. The

court concluded that, although there were usually reasons for the kind of violent

behavior of which petitioner was convicted, it also had to consider the need for

punishment and the need to protect society.

      Moreover, our reading of the court’s statements indicate that the court

recognized petitioner’s need for treatment and recommended that, if possible, he

be sent to a facility where treatment was available. Therefore, contrary to

petitioner’s contentions, we discern no relevant omission in the information

provided to the court, or any constitutional breach in the court’s consideration of

the information provided.



                         D. Disproportionate Sentences

      Finally, petitioner asserts that, in light of the mitigating mental health

factors, the sentences imposed were disproportionate to the offenses committed

and excessively punitive. Petitioner argues that the sentences constitute cruel and

unusual punishment in violation of the Eighth Amendment. See Solem v. Helm,

463 U.S. 277, 284 (1983) (“cruel and unusual punishments” include “sentences

that are disproportionate to the crime committed”).

      The Supreme Court’s proportionality analysis in Solem includes an

assessment of “(i) the gravity of the offense and the harshness of the penalty; (ii)


                                         -8-
the sentences imposed on other criminals in the same jurisdiction; and (iii) the

sentences imposed for commission of the same crime in other jurisdictions.” 463

U.S. at 292. In reviewing claims that a sentence is disproportionate to the crime,

we “grant substantial deference to the broad authority that legislatures necessarily

possess in determining the types and limits of punishments for crimes, as well as

to the discretion that trial courts possess in sentencing convicted criminals.” Id.

at 290; see also Rummel v. Estelle, 445 U.S. 263, 272 (1980) (“Outside the

context of capital punishment, successful challenges to the proportionality of

particular sentences have been exceedingly rare.”).

      Here, petitioner does not refute the gravity or violence of his crimes.

Although petitioner attempts to compare his sentence to some meted out for

murder, he fails to address the sentences imposed for the same crimes in New

Mexico or other jurisdictions. We conclude that petitioner has failed to establish

that his sentences were disproportionate. 2 Moreover, because petitioner’s

sentence falls within the prescribed statutory limits, it generally cannot be found

to be cruel and unusual punishment. See United States v. Youngpeter, 986 F.2d

349, 355 (10th Cir. 1993).



2
       We note that roughly calculating the range of petitioner’s sentence under
the federal sentencing guidelines reveals that petitioner fares much better under
the state sentencing scheme, especially in light of the parole possibility existent in
the state scheme.

                                         -9-
     The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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