The question is whether sentencing a repeat felony offender to life imprisonment in accordance with Alabama's mandatory Habitual Felony Offender Act ("HFOA" or "Act"), Ala.Code Sec. 13A-5-9 (1975), constitutes an equal protection violation when a co-defendant, who was also a repeat offender, was not sentenced pursuant to the Act. The answer is "no".

Rickett was arrested on charges of theft and jailed. With the assistance of Battles, a fellow detainee, Rickett escaped from jail. The two were recaptured. Battles, on the eve of his trial, pleaded guilty to escape and theft in the first degree. Although Battles had prior convictions and should have been sentenced under the HFOA, the prosecutor in Battles' case erred in not learning of the earlier convictions before Battles' sentencing. Battles was sentenced to four years' imprisonment.

Later, Rickett had a jury trial and was convicted of first degree escape. Rickett was sentenced to life imprisonment without parole under the HFOA, based on evidence that Rickett had four prior felony convictions. See Ala.Code Sec. 13A-5-9(c)(2) (1975). At Rickett's trial, Battles testified against Rickett and admitted having three prior felony convictions.1 These admissions might have brought Battles within the scope of HFOA's mandatory life sentence for repeat felony offenders.

Rickett argues that the dissimilar sentencing denied him equal protection.2 We disagree. Rickett fails to establish an equal protection claim for two reasons.

First, the Supreme Court set out the controlling law on this issue in Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962). The Court rejected the argument that application of West Virginia's recidivist statute to the Oyler petitioners violated the equal protection clause. The Court held that where "the allegations set out no more than a failure to prosecute other [ ] [three-time offenders] because of a lack of knowledge of their prior offenses[,] [t]his does not deny equal protection due petitioners...."3 Here, the district court made a factual finding that Battles' record for prior felonies was unchecked due to a slip by the prosecutors and that the prosecutors were for that reason unaware of Battles' earlier convictions. So, in the light of Oyler, Rickett has failed to show an equal protection violation.

Second, even if Oyler does not bar Rickett, he fails to prove a violation of the equal protection clause. Rickett's evidence in this case fails to show that, in Alabama, persons similarly situated to Rickett are generally not prosecuted and sentenced as habitual offenders. The HFOA is mandatory in its terms. See Maye v. State, 472 So. 2d 688, 690 (Ala.Crim.App.1985); Watson v. State, 392 So. 2d 1274, 1276 (Ala.Crim.App.1980). At most, Rickett has shown in Battles' case an isolated and random departure from the HFOA; and this is not enough.

No human institution is perfect, including courts of law. Occasional or random errors in application of state law will occur; but such errors do not constitute state policy, and they do not offend the equal protection clause of the federal Constitution.4 Merely negligent conduct is insufficient to support a claim for denial of equal protection. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977). The HFOA is facially neutral, applying equally to all repeat felony offenders. "Mere error or mistake in judgment when applying a facially neutral statute does not violate the equal protection clause. There must be intentional discrimination." E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir.1987). Nothing suggests that the fourteenth amendment's equal protection clause was intended to serve as a shield against every human error. The Supreme Court has repeatedly rejected the contention that inequality due to error violates equal protection. See, e.g., Beck v. Washington, 369 U.S. 541, 554-55, 82 S. Ct. 955, 962-63, 8 L. Ed. 2d 98 (1962); Charleston Federal S. & L. Ass'n v. Alderson, 324 U.S. 182, 190, 65 S. Ct. 624, 630, 89 L. Ed. 857 (1945); Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 (1944). See also McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S. Ct. 1756, 1766-67, 95 L. Ed. 2d 262 (1987). Here, Rickett was sentenced in compliance with the HFOA's terms. Battles was lucky and, due to the prosecutors' oversight, escaped application of the full force of the HFOA. But this gift of chance to Battles does not mean that Rickett's constitutional rights were violated.

Rickett's claim, at best, is like one for selective prosecution. To make out such a case, a defendant must establish "that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution." United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir.1978) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). Rickett has not proved that he was singled out for harsh treatment.

The district court found that, while checks of prior records are routinely done, Battles' record was not checked due to an error in the prosecutors' office and that prosecutors did not know of Battles' earlier convictions when Battles was sentenced. The district court also found no reason to doubt the prosecutors' testimony or integrity when they testified that nothing was done invidiously against Rickett and that no special treatment was given to Battles. The district court's findings of fact are entitled to deference. Nothing in this record shows that Battles' record was not checked or that Rickett's record was checked because of an official's desire to punish Rickett (or to reward Battles) based on impermissible considerations such as race or religion or because of a desire to prevent Rickett's exercise of his constitutional rights. Intentional and purposeful discrimination is essential to a selective prosecution claim. Johnson, 577 F.2d at 1308.

Alabama prosecutors should be painstaking in checking about prior felonies. The intent of Alabama law is that all persons within the scope of the Act are to be punished in accordance with its terms. Carelessness in checking records can weaken the legislation's effectiveness. In addition, if failure to apply the HFOA were to become more than occasional and random, the federal Constitution might be violated, requiring federal court intervention.5 But the record in this case fails to show a violation of the federal Constitution.

The judgment of the District Court denying this state prisoner federal habeas corpus relief is AFFIRMED.

JOHNSON, Circuit Judge, concurring in the judgment:

For reasons stated below, I agree that the judgment of the district court in this case should be affirmed. I write separately, however, to emphasize that Alabama has trod close to the line of unconstitutional irrationality in its application of the Habitual Felony Offender Act ("HFOA"), and to express my disagreement with the majority's reliance on Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962).

I. THE RATIONAL BASIS COMPONENT OF EQUAL PROTECTION

The equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). The most basic and familiar principle of equal protection is that "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Id. at 440, 105 S.Ct. at 3254. The Supreme Court has stated and applied this "rational basis test" in innumerable cases. The test has frequently been applied in a deferential manner to uphold economic and social legislation. See, e.g., Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981); New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976); Williamson v. Lee Optical, 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). The standard is "not a toothless one," however, see Schweiker, 450 U.S. at 234, 101 S.Ct. at 1082-83, and the Court has applied it, for example, to invalidate laws irrationally discriminating against the mentally retarded, see Cleburne, 473 U.S. at 450, 105 S.Ct. at 3259-60 persons who have recently moved from one state to another, see Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618-23, 105 S. Ct. 2862, 2866-69, 86 L. Ed. 2d 487 (1985), tenants unable to post excessive security bonds in rental disputes, see Lindsey v. Normet, 405 U.S. 56, 74-79, 92 S. Ct. 862, 874-77, 31 L. Ed. 2d 36 (1972), and persons born out of wedlock, see Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 75, 88 S. Ct. 1515, 1516, 20 L. Ed. 2d 441 (1968).

Rickett concedes the legitimacy of the state interest in this case. Alabama's objective in enacting the HFOA, as authoritatively construed by its own courts, was quite simply to "prevent repetition and increase of crimes by imposing increased penalties upon repeat offenders." Watson v. State, 392 So. 2d 1274, 1279 (Ala.Crim.App.1980), cert. denied, 392 So. 2d 1280 (Ala.1981). The touchstone of the inquiry in this case is thus whether the disparate treatment of Rickett "rests on grounds wholly irrelevant to the achievement of the State's objective." McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961).

It is clear that if the state applied the HFOA to Rickett while knowingly and deliberately failing to apply it to similarly situated defendants, its policy would be irrational in the purest sense of the word.1 Not only would such unequal treatment be "wholly irrelevant" to the law's goal, it would actually tend to defeat it. The state argues, and the district court below agreed, that the uneven application of the HFOA demonstrated in this case was not deliberate, but the result of an unintentional and excusable failure to discover the relevant information. The state argues, in effect, that it took reasonably diligent steps to uncover such information. The district court found, however, that the state failed to take even the minimal step of running a background check with state agencies which were in possession of the relevant information.2 It is difficult to perceive what rational basis the state had for failing to run such a check.

Rickett's equal protection claim, while unconventional, is stronger than the majority's brief treatment of it might suggest. Although he does not challenge any explicit legal classification, his claim of purely random or arbitrary discrimination is cognizable under the reasoning adopted by six Justices in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). Logan involved a challenge to an Illinois law which provided an administrative hearing remedy to persons bringing employment discrimination claims. The law required that claimants bring claims within 180 days of the alleged discriminatory act, and that the Illinois Fair Employment Practices Commission ("FEPC") schedule a preliminary hearing within 120 days after the claim was brought. In Logan, the appellant timely filed a claim, but the FEPC, "[a]pparently through inadvertence," id. at 426, 102 S.Ct. at 1152, simply failed to timely schedule a preliminary hearing. As a matter of state law, Logan's claim, through no fault of his own, was therefore held forfeited. Justice Blackmun's majority opinion struck down the law on due process grounds. Justice Blackmun also issued a separate opinion, however, joined by Justices Brennan, Marshall, and O'Connor, finding that the law violated the equal protection clause. Justice Powell, joined by Justice Rehnquist, concurred separately in the judgment, also finding the law invalid on equal protection grounds.3

The state argued that Logan had "no more been deprived of equal protection than anyone would be who is injured by a random act of governmental misconduct." Id. at 438, 102 S.Ct. at 1159 (separate opinion of Blackmun, J.). Justice Blackmun conceded that Logan's claim was "unconventional" and that the law "establishes no explicit classifications." Id. He found, however, that the law "unambiguously divides claims--and thus, necessarily, claimants--into two discrete groups that are accorded radically disparate treatment. Claims processed within 120 days are given full consideration on the merits.... [O]therwise identical claims that do not receive a hearing within the statutory period are unceremoniously, and finally, terminated." Id. at 438-39, 102 S.Ct. at 1159; accord id. at 443-44, 102 S.Ct. at 1161-62 (Powell, J., concurring in the judgment) ("[The law] effectively created two classes of claimants: those whose claims were, and those whose claims were not, processed within the prescribed 120 days.... Under this classification, claimants with identical claims ... would be treated differently, depending on whether the Commission itself neglected to convene a hearing within the prescribed time.... [T]he challenged classification ... is arbitrary and irrational when measured against [the state's asserted goals].") (emphasis added).

Similarly, in the present case, the state's unexplained failure to run a background check on some HFOA-eligible defendants effectively classifies such defendants, otherwise identically situated for relevant purposes, into two classes "accorded radically disparate treatment." Despite the strength of Rickett's claim to have been subjected to irrationally disparate treatment in violation of the equal protection clause, however, I am compelled to agree with the majority that the caselaw of the Supreme Court and this Circuit, as it now stands, precludes a finding of an equal protection violation where the state's conduct is found to be merely negligent. See, e.g., Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 (1944) ("[W]here the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.").4

The magistrate below noted that "[i]f a prosecutor is lazy and misses a defendant's prior record, the district attorney can simply claim ignorance and that particular defendant will fall through the cracks in applying the supposedly 'mandatory' HFOA." See Magistrate's Report and Recommendation, March 1, 1989, at 15 (adopted by the district court on April 3, 1989) (hereinafter "Magistrate's Report"). The prosecutors' own testimony in this case indicated that they were aware that relevant information could be obtained through the kind of check which the district court found they did not perform. Given the easy availability of the relevant sources of information, it strains credulity to view any systematic failure to investigate such sources as arising from mere unintentional negligence. It is thus possible to envision factual scenarios in which such a failure might amount to "deliberate indifference" as defined in Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976) (holding that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment"). While the district court below did not find as a fact that the prosecutors deliberately closed their eyes to available sources of relevant information in this case, it did find that no systematic policy or procedure requiring such background checks appears to exist in Alabama. See Magistrate's Report at 15.

The majority excuses the state's failure to consistently enforce the HFOA with the comment that "[n]o human institution is perfect." Maj. op. at page 1063. While this cannot be gainsaid, the comment would have more force if the officials in this case had at least made an attempt to check Battles's prior record. If the prior convictions had then remained undiscovered because of some human or computer error, it might be possible to view the state's conduct as diligent and reasonable. As noted above, however, the officials simply failed to consult sources which they knew possessed the relevant information. Rickett hardly demands "perfection" from the Alabama criminal justice system; he merely argues that some regularized system of consistent background checks with a verifiable paper trail be instituted to replace the present lackadaisical approach. While I conclude that the district court's factual finding that the officials in this case acted only negligently rather than intentionally is not clearly erroneous, I believe prosecutors in Alabama would be well advised to institute the kind of regularized procedure urged by Rickett. So long as they do not, the State of Alabama, in my view, will be skating close to the line of irrational--and unconstitutional--application of the HFOA.

The majority relies heavily on Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962), and argues that Rickett's claim may be treated as a selective prosecution complaint. I disagree. In my view, Oyler is inapplicable and Rickett's claim cannot properly be analyzed under the standards developed for selective prosecution cases. First, it is important to note that the West Virginia statute involved in Oyler, although also aimed at enhancing punishment of recidivists, functioned quite differently from Alabama's HFOA. Under the West Virginia law, prosecutors had to file a separate information following a defendant's conviction (although before sentencing), alleging the requisite prior convictions and in effect charging the defendant with the new and separate crime of being a recidivist. If the defendant denied he was the person named in the prior convictions, or simply remained silent, he was afforded a jury trial on the issue of identity. See Oyler, 368 U.S. at 449, 453, 82 S. Ct. at 502, 504. These factors explain Oyler 's references to the legitimacy of a conscious state policy of selective enforcement in that case, and explain why Oyler has properly been seen as a seminal case in the selective prosecution area. See Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985) (citing Oyler ).5

The underlying premise of the special equal protection standard employed in selective prosecution cases6 is the historic principle that, "[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute ... generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978). In explaining why prosecutorial decisions are "particularly ill-suited to judicial review," the Supreme Court has noted the variability of such factors as "the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan." Wayte, 470 U.S. at 607, 105 S.Ct. at 1530.

These factors have no relevance to the application of Alabama's HFOA. Under Alabama law, the "provisions [of the HFOA] are absolutely mandatory and are not discretionary." Miliner v. State, 414 So. 2d 133, 135 (Ala.Crim.App.1981), cert. denied, 414 So. 2d 133 (Ala.1982), overruled in part on other grounds, Ex parte Williams, 510 So. 2d 135, 136 (Ala.1987). "[W]e do not believe the prosecutor has any discretion about whether or not to 'show' the prior convictions; if he is aware of the accused's record he must apprise the court of that fact." Id. The HFOA is equally nondiscretionary for the sentencing court. See Holley v. State, 397 So. 2d 211, 215 (Ala.Crim.App.), cert. denied, 397 So. 2d 217 (Ala.1981). Furthermore, the HFOA is not invoked by indictment or information. The HFOA "does not create a new crime. Rather, it merely enhances the punishment of the present crime...." Coker v. State, 396 So. 2d 1094, 1098 (Ala.Crim.App.1981). The HFOA affords no right to jury trial on whether prior convictions are valid; where necessary, the judge simply conducts a sentencing hearing. See Ala.Code Sec. 13A-5-10(a); Holley, 397 So. 2d at 213-14.

For these reasons, while I agree with the majority that Rickett's claim fails under the controlling equal protection caselaw, I do not agree with the majority's reasoning with regard to Oyler, and I cannot regard Oyler as dispositive of the broad question whether states are free to arbitrarily and haphazardly administer supposedly mandatory recidivist sentencing laws.

In McLester v. Smith, 802 F.2d 1330 (11th Cir.1986), this Court addressed a different legal challenge to the HFOA and specifically noted that the record revealed 78 instances in which prisoners eligible for mandatory life sentences under the HFOA were at that time serving sentences of less than life. See id. at 1333. How many other prisoners may have been sentenced before or since in violation of the HFOA's mandatory provisions is unclear, but the foregoing figure indicates that the number may be substantial.7 Rickett's disparate treatment as compared to Battles's therefore cannot be dismissed as an isolated slip or error. Indeed, the state's failure properly to sentence Battles, while sharpening and dramatizing Rickett's claim, is less important than the fact that an indeterminate number of other defendants similarly situated to Rickett and those like him are apparently exempted, for mysterious and at best irrational reasons, from the supposedly mandatory application of the HFOA.

More than a century ago the Supreme Court observed:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 1073, 30 L. Ed. 220 (1886). In Yick Wo, of course, there was evidence of invidious discrimination on grounds of race, whereas the record in this case does not establish, and Rickett does not claim, that the state had any particular invidious ground for singling him out for disparate treatment. Even purely unexplained and irrational discrimination may offend the Constitution, however; that is the very premise of the rational basis test. To paraphrase a comment by Justice Stewart on the random imposition of the death penalty, irrationally disparate treatment is unfair in the same way that being struck by lightning is unfair. See Furman v. Georgia, 408 U.S. 238, 309, 92 S. Ct. 2726, 2762, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring). Surely one of the prime justifications for the rational basis component of the equal protection clause is the risk that seemingly random and haphazard treatment may conceal the "evil eye" and "unequal hand" of invidious discrimination. I find cogent and well taken Rickett's argument that the current laissez-faire enforcement of the HFOA in Alabama "opens a door for corruption in the justice system. It provides a temptation, a bargaining chip,8 to gain an advantage and a desired outcome as to a particular individual's plea or sentence. It furnishes an avenue by which those affected by the law may be given radically disparate treatment." Appellant's Brief at 8 (footnote added).

For these reasons, while I reluctantly concur in the judgment in this case, I would reiterate this Court's warning in McLester, 802 F.2d at 1333 n. 2, that "[s]ince the HFOA is mandatory, the state of Alabama has a serious problem regarding its recidivist statute that we will be requested to address in some other case...." While I conclude that this is not that case, the State of Alabama should be placed on notice that it may not continue to administer the HFOA in the careless and haphazard fashion reflected by the record in this case.