Crosby v. Schwartz

Filing 75

OPINION of USCA as to 70 Notice of Appeal: The decision of District Court is AFFIRMED. (Michel, G)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COURTNEY CROSBY,
Petitioner-Appellant,
v.
T. SCHWARTZ,
Respondent-Appellee.

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


No. 10-17726
D.C. No.
2:05-cv-00047GEB-KJN
OPINION

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
March 13, 2012—San Francisco, California
Filed May 4, 2012
Before: John T. Noonan, Jr., M. Margaret McKeown, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Noonan

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COUNSEL
Eric Weaver (argued), Albany, California, for petitionerappellant Courtney Crosby.
Kamala D. Harris, Michael P. Farrell, and David Andrew
Eldridge (argued), Office of the California Attorney General,
Sacramento, California, for respondent-appellee T. Schwartz.

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OPINION
M. SMITH, Circuit Judge:
Courtney Crosby appeals the district court’s denial of his
federal petition for a writ of habeas corpus. He raises three
claims on appeal. First, Crosby challenges the California
Court of Appeal’s conclusion that his waiver of his Sixth
Amendment right to a jury trial was valid. Second, he claims
that the California court erred in finding that the trial court
acted within its discretion to deny his subsequent attempt to
withdraw the jury trial waiver. Finally, Crosby contends that
the California court erred in finding that his sentence of 26
years to life under California’s Three Strikes Law did not constitute cruel and unusual punishment under the Eighth
Amendment. Because we conclude that these holdings of the
California Court of Appeal were neither contrary to, nor
involved an unreasonable application of, clearly established
Federal law, we affirm the district court’s denial of Crosby’s
habeas petition.
FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 1999, Sacramento police responded to a call for
disturbing the peace at the Ethan Terrace Apartments in Sacramento County. Police found petitioner Crosby and another
man named Rivers upon arrival at the scene. Crosby initially
told the officer his name was Sirleaf Flomo, and when asked
for identification, produced a falsified driver’s license and a
stolen Social Security card. He was finally identified by Rivers as Courtney Crosby. When the officer ran a check on
Crosby’s real name, he discovered that Crosby had an outstanding felony no bail warrant for violation of California
Penal Code Section 290, California’s sex offender registration
statute. The officer arrested Crosby. The officer found several
other stolen identification and insurance cards in Crosby’s
wallet.

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Crosby was charged with three counts of failing to register
under Section 290. Section 290, as it read when Crosby was
arrested, stated that every person who qualifies, “for the rest
of his or her life while residing in, or, if he or she has no residence, while located within California, shall be required to
register with the chief of police of the city in which he or she
is residing, or if he or she has no residence, is located, or the
sheriff of the county if he or she is residing, or if he or she
has no residence, is located, in an unincorporated area or city
that has no police department.” Cal. Penal Code
§ 290(a)(1)(A) (1998) (emphasis added). Section 290(g)(2)
provides that anyone who is required to register under this
section because of a prior felony conviction, but fails to do so,
is guilty of a felony. Id. § 290(g)(2). One of Crosby’s failure
to register counts was dismissed before Crosby proceeded to
trial. Thus, at trial, Crosby faced two charges. He faced one
count for failing to register within five working days after
moving from his residence, in violation of Section 290(f).
Crosby faced another court for failing to register within five
working days of his birthday, in violation of Section
290(a)(1)(c). Crosby was further alleged to have three prior
felony convictions for 1) rape, Cal. Penal Code § 261a(2), 2)
forced copulation, Cal. Penal Code § 288(c), and 3) robbery,
Cal. Penal Code § 667(b)-(i).
Prior to trial, Crosby’s counsel and the prosecutor discussed whether to proceed to trial on the Section 290 registration charges first or the separate charges for receiving stolen
property. Crosby’s counsel informed the court that Crosby
would waive his right to a jury trial for the Section 290
charges, and the court engaged in a colloquy with Crosby in
which Crosby waived his right to a jury trial.
At Crosby’s bench trial, the assistant manager at Crosby’s
last registered address, Ethan Terrace Apartments, testified
that Crosby lived at the apartment with his mother and moved
out on February 14, 1999. A friend of Crosby, April Lowe,
testified that Crosby told her around March 30, 1999 that he

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had been living in West Sacramento for about two weeks, and
that he may have told her that he had stayed at the Dodge City
Inn prior to that.
Crosby was initially registered as a sex offender on February 27, 1989. Records indicated that he executed three annual
updates and nine change of address updates after his initial
registration. Testimony from Sacramento Deputy David
Anderson established that Crosby last executed an annual registration form on July 15, 1998, reporting his address as 1822
Ethan Way, Apartment 23 in Sacramento. Crosby did not file
any more registration updates through the date of his arrest on
July 15, 1999.
The trial judge found Crosby guilty of failing to annually
register and failing to register within five days of his birthday.
The trial court also found as true Crosby’s prior felony convictions and prior prison term. Crosby was sentenced under
California’s Three Strikes Law to an indeterminate sentence
of 25 years to life, plus a one-year enhancement for his prior
prison term. The California Court of Appeal affirmed the conviction on appeal.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus de novo. Silva v. Woodford, 279
F.3d 825, 835 (9th Cir. 2002). We review findings of law
made by the district court for clear error. Id.
We apply the deferential standard of review of the Anterrorism and Effective Death Penalty Act (AEDPA) to Crosby’s
petition. Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011).
Under AEDPA, we are barred from granting habeas relief on
any claim that has been adjudicated on the merits in California state courts unless the adjudication of the claim “(1)
resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) 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); Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011). We review the
last reasoned state court decision—here, the California Court
of Appeal’s decision. Horell, 644 F.3d at 978.
“Clearly established” federal law refers to the “holdings, as
opposed to the dicta, of the [Supreme Court’s] decisions as of
the time of the relevant state-court decision.” Lockyer v.
Andrade, 538 U.S. 63, 71 (2003) (internal citation and quotation omitted). A “state-court decision can be ‘contrary to’
th[e] Court’s clearly established precedent . . . if the state
court arrives at a conclusion opposite to that reached by th[e]
Court on a question of law.” Williams v. Taylor, 529 U.S.
362, 405 (2000). A state-court decision would also be contrary to the “Court’s clearly established precedent if the state
court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at
a result different from [that] precedent.” Id. A state court decision is an “unreasonable application” of clearly established
federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. In evaluating what is an
unreasonable application, the fact that a state court decision
is incorrect or erroneous is not enough; rather, it must be “objectively unreasonable.” Lockyer, 538 U.S. at 75.
The Supreme Court recently emphasized the extremely deferential nature of this review. Explaining that while Section
2254(d) “stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state court proceedings,” the Court emphasized that AEDPA only permits
the court to grant a writ of habeas corpus “where there is no
possibility that fairminded jurists could disagree that the state
court’s decision conflicts with th[e Supreme] Court’s prece-

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dents.” Harrington, 131 S. Ct. at 786. Our review of Crosby’s
appeal is thus limited by the constraints of AEDPA.
DISCUSSION
I.

Jury Waiver

[1] Crosby first contends that he should be granted habeas
relief because his jury waiver was ineffective. The right to a
jury trial, conferred by the Constitution, is waivable, as long
as the waiver includes the consent of the government counsel,
the sanction of the court, and the “express and intelligent consent of the defendant.” Patton v. United States, 281 U.S. 276,
312 (1930), overruled on other grounds by Williams v. Florida, 399 U.S. 78, 92 (1970). We hold that the California Court
of Appeal reasonably concluded that Crosby’s jury trial
waiver was express and intelligent.
The following colloquy occurred at a hearing on February
7, 2002, during which the court discussed scheduling matters
for Crosby’s charges for Section 290 failures to register and
his receipt of stolen property:
THE COURT: Mr. Crosby, you do have on these
matters the right to a speedy public jury trial. That
is one of the rights that you have. The Court’s perfectly willing to go down that road and have jury trials. That’s what we do all the time. We’ve got plenty
of seats out in the audience, plenty of places for the
jurors here, and we’re perfectly willing to proceed in
that fashion.
Although you do have the right to waive a jury
trial, that is to give up a jury trial, that is one of the
rights that you have as long as the District Attorney’s Office would consent to that. Mr. Higgins has
already indicated to the Court that the D.A.’s office
would consent to your waiver of a jury trial in the

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290 case, the failure to register charge that’s against
you.
Mr. Crosby, have you discussed that with your
counsel, and are you satisfied that you want to waive
your right to a jury trial in that case?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Walton, do you join in that
waiver?
MR. WALTON: Join, Your Honor.
THE COURT: The People join in that waiver?
MR. HIGGINS: Yes. People join, Your Honor.
THE COURT: Mr. Crosby, if you waive your right
to that jury trial, then I as the judge in the matter
would act as not just the judge but also the finder of
fact as to whether or not those allegations against
you were true or not true and whether you were
guilty or not guilty of the three charges included in
that Information. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: It appears to me that you understand
what is going on, Mr. Crosby. So the Court will
accept your waiver of a jury trial, and it will proceed
as a court trial on the 290 charge, that’s case 03592.
The California Court of Appeal evaluated the above colloquy, with an understanding that a jury trial waiver would only
be valid if it is made knowingly and intelligently, with a full
understanding of the right being abandoned and the consequences of the abandonment of that right. The state court

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rejected Crosby’s arguments that the above exchange only
showed that he “understand” and “wanted to” waive the right,
but did not expressly do so, and found that the colloquy established that he expressly waived the right.
[2] We cannot say that this conclusion was contrary to or
an unreasonable application of clearly established Supreme
Court law. Crosby first answered “yes” when the court asked
him “Mr. Crosby, have you discussed that with your counsel,
and are you satisfied that you want to waive your right to a
jury trial in that case?” Crosby then answered “yes” when the
court asked him if he understood what he would be giving up.
Taken together, it was not objectively unreasonable for the
appeals court to conclude that Crosby knowingly and intelligently waived his jury trial rights. See Lockyer, 538 U.S. at
75-76.
Crosby argues on appeal that he did not expressly waive his
rights. However, the record belies this contention. The court
expressly asked, “are you satisfied that you want to waive
your right to a jury trial,” and Crosby answered the question
in the affirmative. While Crosby acknowledges this answer,
he argues that the court recognized that Crosby had not agreed
because it prefaced the subsequent question regarding the
consequences of waiver with “if you waive your right to that
jury trial.” We agree with the California Court of Appeal that
this argument amounts to grammatical parsing, and that the
exchange between Crosby and the court just prior to this statement cannot be ignored. Moreover, even if it were plausible
to construe the phrase as Crosby urges, under AEDPA’s deferential review, a simple mistake or error on the part of the
state court is not enough, and we cannot conclude that there
is no possibility that fairminded jurists could agree with the
state court’s interpretation. Harrington, 131 S. Ct. at 786.
Additionally, to the extent that Crosby now argues that misapplication of laws by the state court somehow deprived him of
a liberty interest protected by the Fourteenth Amendment
against arbitrary deprivation by the state, this claim is barred

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by exhaustion because he did not raise the issue in the state
court. 28 U.S.C. § 2254(b).
Accordingly, we reject Crosby’s argument that the California Court of Appeal’s conclusion on the validity of the jury
waiver was contrary to or an unreasonable application of
Supreme Court precedent.
II.

Withdrawal of Jury Waiver

Crosby next argues that he should be granted habeas relief
because the trial court erroneously denied his subsequent
request to withdraw his jury waiver. We deny Crosby’s petition on this ground because he has not established that there
is any clearly established Supreme Court law that holds that
the Constitution guarantees a right to a jury trial after a valid
waiver of that right.
The bench trial was set to begin four days after Crosby
waived his rights to a jury trial. The morning of trial, Crosby
attempted to withdraw his jury waiver. The trial judge denied
the request, finding that it was within his discretion to decide
whether to accept the withdrawal or reject it. In particular, the
court pointed to the fact that the motion was made just before
the first witness was to be put on the stand, that days had been
wasted that could have been used to select a jury, and that all
the witnesses were ready to go that day as scheduled.
The California Court of Appeal found that the trial court
properly considered the timeliness of the motion on the day
trial was set to begin, and the impact on the witnesses who
were ready to take the stand that day. Thus, the court concluded that the trial court’s decision to deny the withdrawal
request was not an abuse of discretion.
[3] As previously discussed, Supreme Court precedent
establishes that a defendant has a right to a jury trial, but that
right is waivable, as long as the waiver is express and intelli-

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gent. Patton, 281 U.S. at 312. However, Patton is silent on
whether there is a duty for a court to restore the right to jury
trial, once the defendant has validly waived it, upon request
of the defendant. Crosby fails to point us to, nor have we
found, any Supreme Court case that deals squarely with this
issue. Thus, there is no “specific legal rule that has been
squarely established” on this issue by the Supreme Court.
Harrington, 131 S. Ct. at 786.
The Sixth Circuit in Sinistaj v. Burt, 66 F.3d 804 (6th Cir.
1995) reached the same conclusion. The Sixth Circuit found
that there was no authority for the proposition that “when a
state court abuses its discretion in denying a defendant’s
motion to withdraw a previously filed waiver of jury trial, the
result is a violation of the United States Constitution.” Id. at
808. Finding that perhaps such a violation could be made out
in certain circumstances, the court emphasized that it could
“conceive of no situation in which a federal judicial determination on habeas collateral review that a state court, as a matter of general law, abused its discretion in denying the
withdrawal motion is therefore a violation of the federal Constitution.” Id. (emphasis in original). Addressing a similar
issue in the context of an attempted withdrawal of a waiver
of the right to counsel, we held in John-Charles v. California,
646 F.3d 1243 (9th Cir. 2011), that there was no Supreme
Court precedent to establish an absolute right to reinstate
counsel after a valid waiver of the right to counsel under
Faretta v. California, 422 U.S. 806 (1975).
[4] Nor can we say that the California Court of Appeal’s
conclusion violates the general principles regarding the
waiver of a jury trial set forth in Supreme Court cases, such
as Patton. We have held that while waiver of a jury trial is not
forever binding on the defendant, the right to withdraw it is
not absolute and it may only be withdrawn if it is timely.
United States v. Mortensen, 860 F.2d 948, 950-51 (9th Cir.
1988). A request is timely if “granting the motion would not
unduly interfere with or delay the proceedings.” Id. at 950

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(finding that withdrawal request was untimely when it was
made on the morning of trial). Thus, fairminded jurists certainly could agree with the state court’s conclusion that the
trial court did not abuse its discretion when it denied Crosby’s
request for withdrawal the day trial was set to begin as
untimely because granting it would have interfered with and
delayed his trial.
[5] Accordingly, we also reject Crosby’s argument that the
California Court of Appeal’s conclusion as to the withdrawal
of jury waiver was contrary to or an unreasonable application
of Supreme Court precedent.
III.

Eighth Amendment Claim

Crosby’s last claim is that his sentence of 26 years to life
violates the Eighth Amendment because it constitutes cruel
and unusual punishment. Crosby was convicted of both failing to annually update his registration five days after his birthday, in violation of former California Penal Code
§ 290(a)(1)(c), and failing to register within five days of a
change of address, in violation of former California Penal
Code § 290(f). The trial court found as true three prior felony
convictions for rape, forced copulation, robbery. Based on
these qualifying priors and the current conviction, the trial
court sentenced Crosby to 26 years to life under California’s
Three Strikes Law.
[6] The Eighth Amendment commands that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. CONST. amend.
VIII. The clause against cruel and unusual punishment prohibits “not only barbaric punishments, but also sentences that
are disproportionate to the crime committed.” Solem v. Helm,
463 U.S. 277, 284 (1983); see also Rummel v. Estelle, 445
U.S. 263, 274 n.11 (1980) (upholding the life sentence under
a Texas recidivist sentencing statute, but cautioning that a

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proportionality principle could come into play in extreme circumstances).
[7] To apply the deference required under AEDPA, we
first must determine what constitutes clearly established Federal law in this context. As we previously recognized in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008), what is clear
is that a “gross proportionality principle” applies when evaluating a terms of years sentence under the Eighth Amendment.
Id. at 882 (citing Lockyer, 538 U.S. at 72). However, the precise contours of this principle are unclear, and it has been
applied only in exceedingly rare and extreme circumstances.
Andrade, 538 U.S. at 73.
In Solem v. Helm, the Supreme Court announced three factors that serve as guidance in reviewing a terms of years sentence under the Eighth Amendment. First, “we look to the
gravity of the offense and the harshness of the penalty.”
Solem, 463 U.S. at 290-91. Second, “it may be helpful to
compare the sentences imposed on other criminals in the same
jurisdiction.” Id. at 291. Third, we may “compare the sentences imposed for commission of the same crime in other
jurisdictions.” Id. The Supreme Court applied these factors to
a conviction for uttering a no account check for $100 under
South Dakota’s recidivist statute, where the defendant also
had priors for three burglaries, obtaining money under false
pretenses grand larceny, and driving while intoxicated. Id. at
281-82. The court found that the sentence violated the Eighth
Amendment, noting that Solem’s offense was “one of the
most passive felonies a person could commit” and did not
involve violence or the threat of violence to any person. Id.
at 296 (internal quotation marks omitted).
[8] However, despite its enunciation of the three factors in
Solem and concluding that Solem’s sentence violated the
Eighth Amendment, the Supreme Court has since handed
down several opinions upholding sentences under the disproportionality principle without agreeing on a uniform set of

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factors lower courts are to consider when deciding such sentencing cases. See Harmelin v. Michigan, 501 U.S. 957 (1991)
(upholding life sentence for possession of more than 650
grams of cocaine, but without a majority opinion agreeing on
what factors comprise the gross proportionality test); Ewing
v. California, 538 U.S. 11 (2003) (plurality opinion) (upholding a life sentence under California’s Three Strikes Law for
a felony conviction for grand theft of personal property (golf
clubs) in excess of $400, without a majority opinion). Finally,
in Lockyer v. Andrade, the Supreme Court upheld a California
Three Strikes 25 to life sentence for petty theft convictions for
theft of $153.54 worth of videotapes. 538 U.S. at 66. The
Supreme Court has emphasized that a term of years sentence
only violates the Eighth Amendment in extraordinary circumstances. Id. at 77. The Supreme Court also emphasized that
“[o]ur cases exhibit a lack of clarity regarding what factors
may indicate gross disproportionality.” Id. at 72.
We have applied the Supreme Court’s nebulous gross disproportionality test in a number of habeas cases challenging
convictions under California’s Three Strikes Law, and have
reached different results based on the factual situations presented in each case. See Ramirez v. Castro, 365 F.3d 755,
756, 767-75 (9th Cir. 2004) (holding that a life sentence for
shoplifting of a $199 VCR with qualifying priors for shoplifting was “harsh . . . beyond any dispute” and an “extremely
rare case” where the state court unreasonably applied the
gross disproportionality principle); Nunez v. Ramirez-Palmer,
485 F.3d 432, 440, 443 (9th Cir. 2007) (upholding a life sentence for conviction for shoplifting of $114.40 worth of
tools); Taylor v. Lewis, 460 F.3d 1093, 1101 (9th Cir. 2006)
(upholding a life sentence for possession of 0.036 grams of
cocaine following long history of recidivism, including violent crimes); Rios v. Garcia, 390 F.3d 1082, 1083 (9th Cir.
2004) (upholding a life sentence for stealing $79.98 worth of
watches with prior robbery convictions).
It was against this background that we decided Gonzalez v.
Duncan, 551 F.3d 878 (9th Cir. 2008), a case involving a Sec-

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tion 290 conviction as the triggering offense for a Three
Strikes sentence. Gonzalez was convicted of failing to annually register within five days of his birthday, as required under
the sex offender statute. Id. at 878. This is one of the charges
of which Crosby was convicted. Gonzalez was acquitted of
the other charge of which Crosby was convicted—failing to
register after a change of address. Id. Applying the Solem
framework, we found that failing to annually register as a sex
offender was a purely regulatory offense. Id. at 884. We
stated that the purpose of the sex offender registration law is
to prevent recidivism in sex offenders by making sure they are
available for police surveillance. Id.
[9] Importantly, we contrasted the annual registration
requirement and the address change registration requirement
of Section 290. The annual registration requirement is “only
tangentially” related to the state’s interest in ensuring that sex
offenders are available for police surveillance, and it is a mere
backup measure to ensure the authorities have accurate information. Id. Thus, failure to comply with the annual registration requirement is a technical violation that by itself poses no
danger to society. Id. In contrast, we noted that the address
change requirement is directly related to the state’s interest in
ensuring that it knows the whereabouts of its sex offenders.
Id. We observed that the California courts have made a distinction between the two registration requirements and that
this distinction is “critical” to our analysis. Id. at 885.
When Gonzalez was decided, we did not have the benefit
of any decision from the Supreme Court, or our own court’s
interpretation of the Supreme Court’s disproportionality principle, to guide our analysis regarding a conviction for failure
to register as a sex offender. We stand on different ground
today. Gonzalez does not present a factual situation identical
to what we face here, but its logic and reasoning remain
highly instructive and persuasive.
Crosby and Gonzalez differ because Crosby was convicted
of the other charge of which Gonzalez was acquitted—failing

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to register within five days of a change of address. We found
a clear distinction between the address change requirement
and the annual registration requirement in Gonzalez, and we
cannot ignore that distinction here. In light of the distinction
made in Gonzalez, we cannot say the state court’s decision
was objectively unreasonable or that there is no possibility
that fairminded jurists could agree with the decision.
[10] The California Court of Appeal concluded that Crosby’s conviction was not merely a technical violation. The
court observed that Crosby was not living at the address
shown in his last registration, and that when the officer confronted Crosby prior to his arrest, he actively lied about his
identity, and provided falsified identification cards, in an
attempt to evade and deceive law enforcement. In Gonzalez,
we concluded that a conviction for failure to register after an
address change is directly related to the state’s interest in
ensuring that it knows the whereabouts of its sex offenders.
Gonzalez, 551 F.3d at 884. This distinction puts the conviction here in stark contrast to the mere technical violation for
failure to annually register. Id.
[11] The California Supreme Court has also held that this
distinction is crucial. In People v. Meeks, 123 Cal. App. 4th
695 (2004), the court held that a life sentence for failure to
register after a change of address did not violate the Eighth
Amendment. Similar to Crosby, the defendant in Meeks
vacated his registered residence, and lived in various places
without registration, including with family and spending some
time on the streets, prior to his arrest. Id. at 701. The court
found that the address change registration requirement is one
that is “intended to avoid, or at least minimize, the danger to
public safety posed by those who have been convicted of certain sexual offenses.” Id. at 708. The court emphasized the
importance of continued registration in order to effectuate the
purpose of the registration requirement, and rejected the
defendant’s contention that the crime was de minimis because
of its grounding in society’s interest in having sex offenders

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readily available for police surveillance at any time. Id. at
709-10 (“We see nothing ‘de minimis’ either in the offenses
in the abstract or in the circumstances attending their commission.”). In contrast, in People v. Carmony, 127 Cal. App. 4th
1066 (2005), the California Supreme Court held that a life
sentence for failure to annually register violates the Eighth
Amendment. The court emphasized that the defendant had not
moved since his last registration, so there was no new information to update, and the defendant in fact still lived at his
last registered address when he was arrested. Id. at 1072-73.
The court discussed at length the legislative history behind the
annual registration requirement and found that this section
was “intended to address the problem of offenders who fail to
notify authorities of an address change” and was a “backup
measure to ensure that authorities have current accurate information.” Id. at 1078-79. The court additionally pointed out
that “because defendant did not evade or intend to evade law
enforcement officers, his offense was the most technical and
harmless violation of the registration law we have seen.” Id.
at 1078 (emphasis added).
[12] In light of our opinion in Gonzalez and the California
Supreme Court’s holdings in Carmony and Meeks, we cannot
conclude that the state court acted unreasonably when it
applied the disproportionality principle to Crosby’s case in the
same way we and the California Supreme Court have done.
Crosby’s factual circumstance is virtually indistinguishable
from the factual circumstance in Meeks. Taken together, these
three cases emphasize a consistent principle found in the sex
offender registration context—whether the crime is a de
minimis crime for which a life sentence is disproportionate is
related to how closely the violation is tied to helping achieve
the purposes of the sex offender registration statute. See Gonzalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at
1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state
court was not objectively unreasonable when it concluded that
Crosby’s failure to register after he moved was not a mere
technical offense. Crosby was no longer living at his last reg-

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istered address at the time of his arrest, and his failure to register impeded the police’s ability to find him for surveillance.
The state court’s decision is even more reasonable because,
unlike the defendant in Carmony, there was evidence that
Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification
cards.
[13] Additionally, the California Court of Appeal found
that Crosby’s prior convictions were serious and violent
crimes. It noted that during the incident resulting in the rape
and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim. It
was further noted that during the prior robbery conviction,
Crosby and an accomplice robbed a restaurant at gunpoint.
The use of violence in Crosby’s prior convictions distinguishes his case from those in which the inference of disproportionality was found to be met by the court.1 See Solem, 463
U.S. at 298 (discussing how Solem’s prior convictions were
all “nonviolent and none was a crime against a person”);
Ramirez, 365 F.3d at 755 (emphasizing how Ramirez’s prior
convictions were all nonviolent in nature and that no weapons
were involved in the offenses).
[14] Circumstances satisfying the gross disproportionality
principle are rare and extreme, and constitutional violations
1

We acknowledge that in Gonzalez, the defendant had a criminal history
that was “extensive” and included a conviction for forcible rape and lewd
conduct with a child. 551 F.3d at 886. However, in spite of the extensive
priors, the court found the sentence was still too harsh because the current
crime did not reveal any propensity to recidivate. Id. at 887. Crosby’s
prior convictions cannot be excused by such a lack of relationship; rather
the conviction for failing to register after an address change, with evidence
of intentional evasion of the requirement, can be said to be rationally
related to recidivism. See Meeks, 123 Cal. App. 4th at 709 (recognizing
that “sex offenders present a serious danger to society because of their tendency to repeat their sexual offenses” and that a history of prior sexual
crimes may make one a person “who law enforcement needs to have readily available for police surveillance at all times”).

CROSBY v. SCHWARTZ

4803

on that ground are “only for the extraordinary case.” Lockyer,
538 U.S. at 77. Crosby’s challenge arises under AEDPA, and
we must give the appropriate deference to California Court of
Appeal’s decision. In light of the various cases that have dealt
precisely with sex offender registration convictions under the
gross disproportionality principle, it was not an unreasonable
application of clearly established federal law for the California Court of Appeal to affirm Crosby’s sentence under the
Eighth Amendment.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court to deny Crosby’s petition for a writ of habeas
corpus.

NOONAN, Circuit Judge, concurring and dissenting:
First lawyer: “His sentence is imprisonment. Twenty-five
years to life.”
Second lawyer: “That’s pretty standard.”
First lawyer: “It depends on the crime. Crosby’s crime
was failing to let the state know of his change of address. The
maximum penalty for this offense by itself is three years.”
Second lawyer: “So he was a recidivist. He had already
committed two serious felonies. This was his third strike. Naturally, the penalty is sharper.”
First lawyer: “The penalty has been enormously enlarged.
The key to constitutional sentencing is proportionality. The
sentence imposed on Crosby is out of all proportion to his
failure to report his change of address. Violent crimes such as
robbery and voluntary manslaughter draw lesser punishment.

4804

CROSBY v. SCHWARTZ

Even rape, the most brutal of sex crimes, would not by itself
draw this kind of penalty. How can it be that an offense which
in itself is passive, which in itself harms no one, will justify
incarceration up to the end of Crosby’s life?”
This hypothetical conversation assumes that governing law
on the subject was established by the United States Supreme
Court, notably in Solem v. Helm, 463 U.S. 277 (1983). The
state of California does not share this view. The state bases its
position on quotations from Ewing v. California, 538 U.S. 11
(2003).
In Ewing, Justice O’Connor delivered what the official
report describes as “an opinion.” It was concurred in by two
members of the Court, Chief Justice Rehnquist and Justice
Kennedy. Justice Scalia and Justice Thomas, who did not find
the Eighth Amendment applicable, concurred in the judgment
reached by the three. Justice Stevens, Justice Souter, Justice
Ginsburg, and Justice Breyer dissented.
In oral argument in the present case, the state of California
asserted that footnote 2 of Justice O’Connor’s three-justice
opinion stated controlling law. I quote from its responses to
questions from our court:
Assistant Attorney General: More importantly, and
frankly, this was a flaw in Gonzalez [v. Duncan, 551
F.3d 875 (9th Cir. 2008)] as well, but this court
doesn’t actually have to decide whether Gonzalez
was wrong, it’s enough that this court recognizes its
job is simply to determine what a state court could
have interpreted Ewing to mean, what any, what
some fairminded jurist could think the case means,
and the problem fundamentally is that over and over,
the emphasis by petitioner is, my offense really
wasn’t that bad. Yeah, it was a felony, but it really
isn’t that bad. The problem, and, going on Gonzalez
v. Duncan the argument that, well, this offense

CROSBY v. SCHWARTZ

doesn’t really show a particular type of recidivism.
None of that matters. Footnote 2 in Ewing v. California says flat-out, “the California legislature therefore
made a deliberate policy decision that the gravity of
the new felony should not be a determinative factor
in triggering the application of the three strikes law.
Neither the Eighth Amendment nor this court’s precedent forecloses that legislative choice.” In other
wordsThe court: Where are you quoting that?
Assistant Attorney General: That is footnote 2 of
Ewing v. California, Your Honor. In other words, a
fairminded jurist could decide that under United
States Supreme Court precedent, it is irrelevant how
the felony looks standing alone. Rather, the very fact
that before you commit that felony, you had at least
two prior serious or violent felonies is enough to
make it grave enough, under the Eighth Amendment,
for a life term. No amount of ignoring that language
is going to work. Gonzalez unfortunately didn’t cite
that language either. Gonzalez spent a lot of time
talking about, you know, this particular offense, and
just ignored the language. I don’t know how The court: If Gonzalez had followed that, they
would have come out in favor of the state?
Assistant Attorney General: I’m sorry?
The court: You’re saying if Gonzalez had been correctly decided, it would have come out in favor of
the state?
Assistant Attorney General: Oh, to be sure, but the
question for you isn’t simply whether Gonzalez is
correct. Rather, it’s wrong, but the question for you

4805

4806

CROSBY v. SCHWARTZ

is, could a state court have reasonably understood
Ewing in a way that makes the offense, here, not so
disproportionate to the punishment. And they could
have, because the state court could have treated that
language seriously in Ewing v. California.
Oral Argument at 12:52-15:46,
www.ca9.uscourts.gov/media/.

available

at

http://

In its brief to us, the state quotes from Justice O’Connor’s
three-justice opinion in Ewing to the effect that it is “enough”
that California had “a reasonable basis for believing” that “a
dramatically enhanced sentence for habitual felons” advanced
the goals of the California justice system (citing Ewing, 538
U.S. at 28, and adding italics to enough and dramatically).
The state’s brief continues with quotation from the threejustice opinion, again acknowledging that the state is adding
italics: “ ‘Nothing in the Eighth Amendment prohibits California from making [the] choice’ that the way to advance justice
is outright ‘incapacitation’ of the recidivist.” (combining language quoted from Ewing at 25 with the state’s argument).
The force of this remarkable contention appears to be that
there is no limit to the punishment that the state may prescribe
for any recidivist. It is hard to believe that the three-justice
opinion was intended to lift all restraint on the state’s reaction
to recidivism. In California’s sweeping gloss, proportionality
in sentencing a recidivist has been eliminated. The repeat
felon, however technical his felony, is to be “incapacitated.”
With a severity worthy of Sparta, the state of California will
bring to book those who thrice fall afoul of any felony provision in its legislation.
I do not believe that the humane restraint of the Eighth
Amendment has been so removed from its role in measuring
the proportion of the penalty to the offense.
I concur in the remainder of the majority’s opinion. I note
that one standard referenced in it is that of “any fair-minded

CROSBY v. SCHWARTZ

4807

judge.” The standard is similar to the standard of “any reasonable person.” It is an objective standard. In disagreeing with
a colleague as to whether such a standard is met, a judge is
not impugning the reason or the fairmindedness of the colleague with whom the judge disagrees because the objective
standard has not been met.