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PINKSTON v. LAMARQUE

February 18, 2003

Rickey Pinkston, Petitioner,
v.
Anthony A. Lamarque, Warden, Respondent



The opinion of the court was delivered by: JENKINS, District Judge.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

  Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising two cognizable claims: (1) that his Sixth Amendment right to counsel was violated because his trial counsel provided ineffective assistance at his resentencing hearing; and (2) his sentence of 25-years-to-life under California's "three strikes" law violates his Eighth Amendment right to be free from cruel and unusual punishment. Following briefing by the parties, the court denied the petition on the merits in an order dated October, 30, 2001.

  After the order denying the petition was issued, the law in this circuit governing plaintiffs Eighth Amendment claim changed significantly. In Andrade v.

[247 F. Supp.2d 1148]

      Attorney General, 270 F.3d 743 (9th Cir. 2001). cert. granted, Lockyer v. Andrade, (2002), the Ninth Circuit found that petitioner's 50-years-to-life sentence under California's three strikes law for two counts of petty theft with a prior violated the Eighth Amendment. Andrade, 270 F.3d at 766. In Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002), the Ninth Circuit held that 25-years-to-life sentences under California's three strikes law for felony petty theft with a prior violated the Eighth Amendment. Brown, 283 F.3d at 1037. Because the Antiterroriism and Effective Death Penalty Act applied, as it does to the instant petition, the Ninth Circuit granted the habeas petitions after concluding that the state courts' denials of the Eighth Amendment claims was an unreasonable application of federal law. Id. at 1038-39 (applying 28 U.S.C. § 2254(d)(1)); Andrade, 270 F.3d at 766-67 (same).

  The court ordered respondent to show cause why the petition should not be granted, upon reconsideration, in light of Brown and Andrade. See generally Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n. 5 (9th Cir. 1989) (one of the major grounds justifying reconsideration is an intervening change in the controlling law). Respondent has filed a supplemental brief contending that the petitions should be denied. Petitioner, who is pro se, has not filed an opposition to respondent's supplemental brief.

  BACKGROUND

  Petitioner was convicted in Santa Clara County Superior Court of one count of second degree burglary and one count of petty theft with a prior felony for stealing $279.86 worth of blue jeans from a Mervyn's Department Store on August 22, 1994. Allegations of five prior serious felonies were also found to be true. Counting the five priors as "strikes," the trial court sentenced petitioner to twenty-five years to life in state prison under California's three strikes laws (California Penal Code §§ 667(b)-(i); 1170.12) on April 14, 1995. The California Court of Appeal reversed and remanded to allow the trial court to exercise its discretion to strike the prior offenses. On December 13, 1996, the trial court declined to strike any of the priors and reimposed the same sentence. The California Court of Appeal denied petitioner's subsequent appeal and a petition for a writ of habeas corpus in a consolidated opinion. The state appellate court found, inter alia, that his sentence did not violate his right to be free from cruel and unusual punishment under the Eighth Amendment. The Supreme Court of California rejected his direct appeal in a one-line opinion.

  DISCUSSION

 A. Standard of Review

  This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

  A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the ...


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