Rippey v. Brown

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/12/2012 ORDERING that petitioner's application for writ of habeas corpus is DENIED; the court DECLINES to issue a COA; and the Clerk is to close the case. CASE CLOSED. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SCOTT JOSEPH RIPPEY,
Petitioner,

11
12
13

No. 2:11-cv-1307 EFB P

vs.
EDMUND BROWN,
Respondent.

14

ORDER
/

15
16

Petitioner is a state prisoner without counsel proceeding with an application for a writ of

17

habeas corpus pursuant to 28 U.S.C. § 2254.1 He challenges his sentence on a 2009 judgment of

18

conviction entered against him in the Shasta County Superior Court, pursuant to a guilty plea, on

19

charges of transportation of methamphetamine, with enhancements for having suffered prior

20

“strike” convictions and having served prior prison terms. He seeks relief on the grounds that:

21

(1) the trial court violated his right to due process in denying his motion to strike his prior

22

conviction enhancements at sentencing; (2) his sentence constitutes cruel and unusual

23

punishment; and (3) his trial counsel rendered ineffective assistance. Upon careful consideration

24

of the record and the applicable law, and for the reasons set forth below, petitioner’s application

25
1

26

The parties in this action have consented to proceed before a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
1

1

for habeas corpus relief must be denied.

2

I.

Factual Background2

3

In August 2008, a Shasta County deputy sheriff stopped
defendant's truck because defendant, three weeks discharged from
parole, was not wearing a seat belt and the truck's license plate was
obstructed. Defendant told the deputy that his driver's license had
been suspended or revoked for over 14 years because of prior
convictions for driving under the influence.

4
5
6

During a search of the truck, the deputy found two “baggies”
containing marijuana weighing 3.5 grams and 2.8 grams,
respectively, and two “baggies” containing methamphetamine
weighing 0.9 grams and 0.5 grams, respectively. The deputy also
found 14 new baggies, an empty baggie with methamphetamine
residue on it, three empty baggies that once contained marijuana,
and $260 in cash.

7
8
9
10

Defendant was arrested and charged with transportation of
methamphetamine (Health & Saf.Code, § 11379, subd. (a)-count
1), possession of methamphetamine for sale (Health & Saf.Code, §
11378-count 2), possession of methamphetamine (Health &
Saf.Code, § 11377, subd. (a)-count 3), driving with his license
suspended for prior conviction for driving under the influence
(Veh.Code, § 14601.2, subd. (a)-count 4), and failing to provide
evidence of financial responsibility (Veh.Code, § 14601.2, subd.
(a)-count 5).

11
12
13
14
15

It was further alleged that defendant had two prior strike
convictions: (1) a 1978 conviction for robbery (Pen.Code, § 211),
and (2) a 1988 conviction for second degree robbery (Pen.Code, §
211). (Pen.Code, § 1170.12.) It was also alleged that defendant
previously served prison terms on convictions for second degree
robbery (Pen.Code, § 211), possession of a controlled substance
(Health & Saf.Code, § 11377, subd. (a)), and failing to appear (Pen
.Code, § 1320.5). (Pen.Code, § 667.5, subd. (b).)

16
17
18
19
20

The court later amended the charging information to remove all
references to the word “sale” in count 1. Defendant then pled
guilty to count 1 as amended, admitted the two prior strike
convictions, and admitted serving the three prior prison terms as
alleged. The remaining charges were dismissed and defendant
reserved the right to make a motion to dismiss either or both of his
prior strike convictions pursuant to People v. Romero (1996) 13
Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero).

21
22
23
24
25
26

2

In its unpublished memorandum and opinion affirming petitioner’s judgment of
conviction on appeal, the California Court of Appeal for the Third Appellate District provided
the following factual summary.
2

1

Defendant also pled guilty to a misdemeanor charge of driving
with a blood-alcohol level exceeding .08 percent in an unrelated
case. (Case No. 08CT9462.)

2
3

Defendant filed his Romero motion, which the trial court denied.
Defendant was then sentenced to state prison for 25 years to life
plus one year for each of his prior prison terms, for an aggregate
term of 28 years to life. Defendant appeals his sentence.

4
5
6

People v. Rippey, No. C062515, 2010 WL 3180272, at *1 (Cal.App.3d Dist. Aug. 12, 2010)

7

(Opinion).

8

II.

9

Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a

10

state court can be granted only for violations of the Constitution or laws of the United States. 28

11

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

12

application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);

13

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

14

2000).

15
16
17
18
19
20
21
22

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

23

(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.

24

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

25

holdings of the United States Supreme Court at the time of the state court decision. Stanley v.

26

Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06
3

1

(2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is

2

clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d

3

at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

4

A state court decision is “contrary to” clearly established federal law if it applies a rule

5

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

6

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

7

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant

8

the writ if the state court identifies the correct governing legal principle from the Supreme

9

Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case.3

10

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360

11

F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ

12

simply because that court concludes in its independent judgment that the relevant state-court

13

decision applied clearly established federal law erroneously or incorrectly. Rather, that

14

application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v.

15

Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal

16

habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that

17

the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit

18

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

19

of the state court’s decision.” Harrington v. Richter, 562 U.S.___, ___, 131 S. Ct. 770, 786

20

(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a

21

condition for obtaining habeas corpus from a federal court, a state prisoner must show that the

22

state court’s ruling on the claim being presented in federal court was so lacking in justification

23

that there was an error well understood and comprehended in existing law beyond any possibility

24
3

25
26

Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
4

1

for fairminded disagreement.” Harrington,131 S. Ct. at 786-87.

2

If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

3

court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

4

527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

5

(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

6

2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

7

considering de novo the constitutional issues raised.”).

8

The court looks to the last reasoned state court decision as the basis for the state court

9

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

10

If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

11

previous state court decision, this court may consider both decisions to ascertain the reasoning of

12

the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

13

a federal claim has been presented to a state court and the state court has denied relief, it may be

14

presumed that the state court adjudicated the claim on the merits in the absence of any indication

15

or state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 784-85. This

16

presumption may be overcome by a showing “there is reason to think some other explanation for

17

the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

18

803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to

19

support its conclusion, a federal habeas court independently reviews the record to determine

20

whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

21

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

22

review of the constitutional issue, but rather, the only method by which we can determine

23

whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853.

24

Where no reasoned decision is available, the habeas petitioner still has the burden of “showing

25

there was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. at 784.

26

////
5

1

When it is clear, however, that a state court has not reached the merits of a petitioner’s

2

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

3

habeas court must review the claim de novo.4 Stanley, 633 F.3d at 860; Reynoso v. Giurbino,

4

462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

5

III.

Petitioner’s Claims

6

A.

7

In his first ground for relief, petitioner claims that the trial court violated his Fourteenth

Prior Conviction Enhancements

8

Amendment right to due process and his Eighth Amendment right to be free from cruel and

9

unusual punishment when it denied his motion pursuant to People v. Superior Court (Romero),

10

13 Cal.4th 497 (1996), to dismiss one or more of his prior felony “strike” convictions in the

11

furtherance of justice at the time of his sentencing. Dckt. No. 1 (Pet.) at 26-31. Petitioner argues

12

that the sentencing judge should have dismissed at least one of his prior convictions because his

13

commitment offense was “minor,” he had a longstanding addiction to drugs, the severity of his

14

convictions had decreased over time, his prior convictions occurred many years ago, and he was

15

52 years of age at the time of sentencing. Id. at 26-28. Petitioner contends that the sentencing

16

court improperly ignored his attempts to rehabilitate and his addiction to drugs. Id. at 28-29.

17

The California Court of Appeal rejected these arguments, reasoning as follows:

18

Defendant contends the trial court abused its discretion in denying
his motion to strike one or both of the prior conviction
enhancements. He argues the court improperly focused on his
remote priors, ignored the nonviolent nature of the triggering
offense, and failed to consider his advanced age and attempts to
rehabilitate.

19
20
21

Penal Code section 1385 gives the trial court the authority, on its
own motion or upon application of the prosecution, “and in
furtherance of justice,” to order an action dismissed. (Pen.Code, §
1385, subd. (a).) In Romero, the California Supreme Court held a
trial court may utilize Penal Code section 1385 to strike or vacate a

22
23
24
25
26

4

The United States Supreme Court has recently granted certiorari in a case apparently to
consider this issue. See Williams v. Cavazos, 646 F.3d 626, 639-41 (9th Cir. 2011), cert. granted
in part, ___U.S.___, 132 S. Ct. 1088 (2012).
6

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

prior strike for purposes of sentencing under the three strikes law,
“subject, however, to strict compliance with the provisions of
section 1385 and to review for abuse of discretion.” (Romero, at p.
504, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Likewise, a trial court's
“failure to dismiss or strike a prior conviction allegation is subject
to review under the deferential abuse of discretion standard.”
(People v. Carmony (2004) 33 Cal.4th 367, 374.)
In ruling on a Romero motion, the trial court “must consider
whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme's spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161, 69
Cal.Rptr.2d 917, 948 P.2d 429.)
Dismissal of a strike is a departure from the sentencing norm.
Therefore, in reviewing a Romero decision, we will not reverse for
abuse of discretion unless the defendant shows the decision was
“so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
Reversal is justified where the trial court was unaware of its
discretion to strike a prior strike, or refused to do so at least in part
for impermissible reasons. (Id. at p. 378.) But where the trial
court, aware of its discretion, “‘balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court's ruling, even if we might have
ruled differently in the first instance’ [citation].” (Ibid.)

16
17
18
19
20
21
22
23
24
25

In support of his claim that the trial court abused its discretion,
defendant notes that his prior strikes were committed more than 20
and 30 years ago respectively, and he was 52 years old when he
committed the current offense. He argues the trial court
improperly focused on the aged priors and the numerous parole
violations that followed, which he characterizes as “minor,” and
failed to give due weight to the decrease in recidivism for aging
offenders.
Defendant further argues the court should have given greater
weight to the nonviolent nature of the triggering offense, which he
contends, “represented a huge de-escalation of criminal behavior.”
He also believes the trial court failed to give “fair consideration” to
his addiction.
All of the foregoing was laid out to the trial court by defense
counsel. In denying defendant's motion, the court explained: “I'm
not going to strike the strikes. [Defendant] clearly falls within the
spirit of the three strikes law.

26
7

1

“Going back to his juvenile record back in 1973, grand theft of
person which suggests to me he stole something from the person of
another. Could have been close to a 211.

2
3

“Had an assault causing great bodily injury as a juvenile, not to
mention, the car theft and escape from [California Youth Authority
(CYA) ].

4
5

“Both of his strikes are, even though they're somewhat aged,
involve serious felony conduct; 211, 245. And then in the second
there's a 212.5[,] which I think is a first degree robbery. But even
if not I think it was a second degree robbery still in 1988.

6
7

“And in between all of this he's had nonstop criminal history
including a variety of misdemeanors, some of which put the
community at risk when a person is driving under the influence.
Some of which involve possession of weapons, the firearm
possession, multiple parole violations.

8
9
10

“And in the last series even though in the last looks like four years
or so has gone back on parole violations. So it's hard to tell how
long he was actually out of custody. He picked up a 242, a hit and
run. And then after this most recent offense for which he's about
to be sentenced he picked up another DUI.

11
12
13

“So he's clearly not someone who is outside the spirit of the three
strikes law. I won't be striking those strikes.”

14
15

It is obvious from the foregoing the trial court understood its
discretion to grant the motion to strike but concluded this case
does not warrant such extraordinary action. Defendant's
criminality began in 1973 when he was committed to CYA for
grand theft person. Paroled in 1974, defendant was returned to
custody in 1975 for stealing a car and again for assault resulting in
great bodily injury. He was returned a third time, after escaping
from the CYA.

16
17
18
19

As an adult, defendant accumulated seven felony and 12
misdemeanor convictions in California prior to his arrest for the
current conviction.5 As a result of his convictions, defendant
received sentences totaling more than 19 years, in addition to a
sentence of six months to life, which he received in 1978.
Furthermore, between April 1992 and April 2009, defendant
violated his parole nine times.

20
21
22
23
24
5

25

This does not include the numerous offenses for which defendant was convicted in
other states: a conviction for driving under the influence in Washington in 1982; a conviction for
theft in Arkansas in 1987; and a conviction for presenting false identification in Oregon in 1997.

26
8

1
2
3
4
5
6
7

The three strikes law establishes sentencing norms and “creates a
strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (People v.
Carmony, supra, 33 Cal.4th at p. 378.) This presumption will only
be rebutted in an “extraordinary case – where the relevant factors
described in [People v.] Williams, supra, 17 Cal.4th 148, 69
Cal.Rptr.2d 917, 948 P.2d 429, manifestly support the striking of a
prior conviction and no reasonable minds could differ.” (People v.
Carmony, supra, 33 Cal.4th at p. 378.) However, “[w]here the
record is silent [citation], or ‘[w]here the record demonstrates that
the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm
the trial court's ruling, even if we might have ruled differently in
the first instance’ [citation].” (Ibid.)

8
9
10
11

The record here demonstrates the trial court exercised its discretion
and concluded this is not such an extraordinary case as to warrant
dismissal of the strike. Under the facts and circumstances
presented, we cannot say this conclusion is “so irrational or
arbitrary that no reasonable person could agree with it.” (People v.
Carmony, supra, 33 Cal.4th at p. 377.) We therefore find no abuse
of discretion.

12
13
14

Opinion at **2-4.
Petitioner’s federal habeas challenge to the trial court’s denial of his Romero motion

15

essentially involves an interpretation of state sentencing law. As explained above, “it is not the

16

province of a federal habeas court to reexamine state court determinations on state law

17

questions.” Corcoran, 131 S. Ct. at 16 (quoting Estelle, 502 U.S. at 67). So long as a sentence

18

imposed by a state court “is not based on any proscribed federal grounds such as being cruel and

19

unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violation of

20

state statutes are matters of state concern.” Makal v. State of Arizona, 544 F.2d 1030, 1035 (9th

21

Cir. 1976). Thus, “[a]bsent a showing of fundamental unfairness, a state court’s misapplication

22

of its own sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d

23

461, 469 (9th Cir. 1994).

24

The sentencing judge in this case declined to strike any of petitioner’s prior convictions

25

only after considering all of the relevant circumstances and applying the applicable law. As

26

indicated by the California Court of Appeal, the sentencing judge’s conclusion that petitioner did
9

1

not fall outside the spirit of California’s Three Strikes Law was not unreasonable under the

2

circumstances of this case. After a careful review of the sentencing proceedings, this court finds

3

no federal constitutional violation in the state trial judge’s exercise of his sentencing discretion.6

4

The California Court of Appeal carefully considered the entire record in rejecting

5

petitioner’s claims based on the trial judge’s refusal to strike one or more of his prior convictions

6

at the time of sentencing. Its decision with respect to the application of state sentencing law is

7

not contrary to or an unreasonable application of federal law and does not justify the granting of

8

federal habeas relief. Accordingly, petitioner is not entitled to relief on this claim.

9

B. Cruel and Unusual Punishment

10
11

In his second ground for relief, petitioner claims that his sentence of 28 years to life
constitutes cruel and unusual punishment. Pet. at 32-57.

12

The California Court of Appeal denied this claim, reasoning as follows:

13

Defendant further contends his sentence of 28 years to life violated
his federal constitutional guarantees against cruel and unusual
punishment because the triggering offense was “minor,” his prior
strikes are remote in time, and his crimes have been decreasing in
seriousness over the last 20 years. We are not persuaded.

14
15
16

Under the proscription of “cruel and unusual punishment” in the
Eighth Amendment to the United States Constitution (applicable to
the states via the Fourteenth Amendment), a “‘narrow
proportionality principle . . . applies to noncapital sentences.’”
(Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108,
117] (Ewing), quoting Harmelin v. Michigan (1991) 501 U.S. 957,
996-997 [115 L.Ed.2d 836, 865-866] (Harmelin).) This
constitutional principle “forbids only extreme sentences that are
‘grossly disproportionate’ to the crime.” (Ewing, supra, 538 U.S.
at p. 23, 123 S.Ct. at p. ---- [155 L.Ed.2d at p. 119], quoting
Harmelin, supra, 501 U.S. at p. 1001 [155 L.Ed.2d at p. 869].)

17
18
19
20
21
22

////

23
6

24
25
26

If petitioner’s sentence had been imposed under an invalid statute and/or was in excess
of that actually permitted under state law, a federal due process violation would be presented.
See Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990) (due process violation found where
the petitioner’s sentence of life imprisonment without the possibility of parole could not be
constitutionally imposed under the state statute upon which his conviction was based).
However, petitioner has not made a showing that such is the case here.
10

1

Objective factors guiding the proportionality analysis include “(I)
the gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for the commission of the same crime
in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292
[77 L.Ed.2d 637, 650].) But only in the rare case where the first
factor is satisfied does a reviewing court consider the other two
factors. (Harmelin, supra, 501 U.S. at p. 1005, 111 S.Ct. at p. ---[115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)

2
3
4
5
6

The United States Supreme Court rejected an Eighth Amendment
challenge to a 25-years-to-life three strikes sentence in Ewing,
supra, 538 U.S. 11 [155 L.Ed.2d 108], noting that recidivism has
traditionally been recognized as a proper ground for increased
punishment. (Id. at p. 25 [538 U.S. at p. ----, 123 S.Ct. at p.
----155 L.Ed.2d at p. 120].) Given the defendant's long criminal
history, the court held that the defendant's punishment was not
disproportionate despite the relatively minor character of his
current felony. (Id. at p. 29 [538 U.S. at p. ----, 123 S.Ct. at p.
----155 L.Ed.2d at p. 122].)

7
8
9
10
11

Here, as we have explained in part I, ante, defendant's criminality
was prolonged and consistent. His punishment was not grossly
disproportionate in light of that record. (See People v. Poslof
(2005) 126 Cal.App.4th 92, 109, 24 Cal.Rptr.3d 262; People v.
Meeks (2004) 123 Cal.App.4th 695, 706-710, 20 Cal.Rptr.3d 445
(maj. opn. of Hull, J.).)7

12
13
14
15
16

Pet. at *4.
The United States Supreme Court has held that the Eighth Amendment includes a

17

“narrow proportionality principle” that applies to terms of imprisonment. See Harmelin v.

18

Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring). See also Taylor v. Lewis, 460

19

F.3d 1093, 1097 (9th Cir. 2006). However, successful challenges in federal court to the

20

proportionality of particular sentences are “exceedingly rare.” Solem v. Helm, 463 U.S. 277,

21

289-90 (1983). See also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004). “The Eighth

22

Amendment does not require strict proportionality between crime and sentence. Rather, it

23

forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501

24
25
26

7

The recent amendments to Penal Code section 4019 do not operate to modify
defendant's entitlement to credit, as he has prior convictions for serious or violent felonies.
(Pen.Code, § 4019, subds. (b) & (c); Stats.2009, 3d Ex.Sess., ch. 28, § 50.)
11

1

U.S. at 1001 (Kennedy, J., concurring) (citing Solem v. Helm). In Lockyer v. Andrade, the

2

United States Supreme Court held that it was not an unreasonable application of clearly

3

established federal law for the California Court of Appeal to affirm a “Three Strikes” sentence of

4

two consecutive 25 year-to-life imprisonment terms for a petty theft with a prior conviction

5

involving theft of $150.00 worth of videotapes. Andrade, 538 U.S. at 75. In Ewing v.

6

California, 538 U.S. 11, 29 (2003), the Supreme Court held that a “Three Strikes” sentence of 25

7

years-to-life in prison imposed on a grand theft conviction involving the theft of three golf clubs

8

from a pro shop was not grossly disproportionate and did not violate the Eighth Amendment.

9

And in Crosby v. Schwartz, 678 F.3d 784, 791-92 (9th Cir. 2012), the United States Court of

10

Appeals for the Ninth Circuit held that a sentence of 26 years to life under California’s Three

11

Strikes Law for defendant’s failure to annually update his registration as a sex offender and

12

failure to register within five days of a change of address did not constitute cruel and unusual

13

punishment, in violation of the Eighth Amendment.

14

In assessing the compliance of a non-capital sentence with the proportionality principle, a

15

reviewing court must consider “objective factors” to the extent possible. Solem, 463 U.S. at 290.

16

Foremost among these factors are the severity of the penalty imposed and the gravity of the

17

offense. “Comparisons among offenses can be made in light of, among other things, the harm

18

caused or threatened to the victim or society, the culpability of the offender, and the absolute

19

magnitude of the crime.” Taylor, 460 F.3d at 1098.8

20
21
22

8

As noted in Taylor, the United States Supreme Court has also suggested that reviewing
courts compare the sentences imposed on other criminals in the same jurisdiction, and also
compare the sentences imposed for commission of the same crime in other jurisdictions. 460
F.3d at 1098 n.7. However,

23
24
25
26

consideration of comparative factors may be unnecessary; the Solem Court “did
not announce a rigid three-part test.” See Harmelin, 501 U.S. at 1004, 111 S.Ct.
2680 (Kennedy, J., concurring). Rather, “intrajurisdictional and interjurisdictional
analyses are appropriate only in the rare case in which a threshold comparison of
the crime committed and the sentence imposed leads to an inference of gross
disproportionality.” Id. at 1004-05, 111 S.Ct. 2680; see also Rummel v. Estelle,
12

1

This court finds that petitioner’s sentence does not fall within the type of “exceedingly

2

rare” circumstances that would support a finding that his sentence violates the Eighth

3

Amendment. Petitioner’s sentence is certainly a significant penalty. However, petitioner pled

4

guilty to transportation of methamphetamine, and he has a very significant criminal background

5

which includes crimes of violence. In Harmelin, the petitioner received a sentence of life

6

without the possibility of parole for possessing 672 grams of cocaine. In light of the Harmelin

7

decision, as well as the decisions in Andrade and Ewing, which imposed sentences of twenty-

8

five years to life for petty theft convictions, and Crosby, which imposed a sentence of twenty-six

9

years to life for failing to register as a sex offender, the sentence imposed on petitioner is not

10

grossly disproportionate. Because petitioner does not raise an inference of gross

11

disproportionality, this court need not compare petitioner’s sentence to the sentences of other

12

defendants in other jurisdictions. This is not a case where “a threshold comparison of the crime

13

committed and the sentence imposed leads to an inference of gross disproportionality.” Solem,

14

463 U.S. at 1004-05. The state courts’ rejection of petitioner’s Eighth Amendment claim was

15

not an unreasonable application of the Supreme Court’s proportionality standard. Accordingly,

16

this claim for relief should be denied.

17

C. Ineffective Assistance of Counsel

18

In his third claim for relief, petitioner argues that in the event the Court of Appeal

19

deemed his Eighth Amendment argument forfeited based on his trial counsel’s failure to object

20

to his sentence as being cruel and unusual, that this court should excuse the default on the

21

grounds that his counsel rendered ineffective assistance in failing to object. Pet. at 58-64. The

22

respondent did not argue in state court that petitioner’s Eighth Amendment claim was waived by

23
445 U.S. 263, 282, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (“Absent a
constitutionally imposed uniformity inimical to traditional notions of federalism,
some State will always bear the distinction of treating particular offenders more
severely than any other State.”).

24
25
26

Id.
13

1

counsel’s failure to object in the trial court, and the Court of Appeal did not reject the claim on

2

that basis. Accordingly, petitioner’s claim of ineffective assistance lacks a factual basis and is

3

denied.

4

IV. Conclusion

5

For all of the foregoing reasons, IT IS HEREBY ORDERED that:

6

1. Petitioner’s application for a writ of habeas corpus is denied;

7

2. The court declines to issue a certificate of appealability; and

8

3. The Clerk is directed to close the case.

9

DATED: September 12, 2012.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
14