United States District Court, Northern District of California
April 1, 2003
JOE LOUIS LUGO, PETITIONER,
R.Q. HICKMAN, WARDEN, RESPONDENT.
The opinion of the court was delivered by: William Alsup, United States District Judge
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. The matter is submitted.
Petitioner was convicted by a jury of attempted first degree burglary. The jury also found true allegations that petitioner had suffered two prior serious felony convictions and served prison terms for several prior felony convictions. He was sentenced to 38 years to life in state prison pursuant to California's Three Strikes Law and other enhancements. Petitioner unsuccessfully appealed his conviction and sentence to the California Court of Appeal and the Supreme Court of California. He also unsuccessfully sought collateral relief from the state courts.
As grounds for habeas relief here he asserts that: (1) the trial court violated his right to due process by refusing to give a jury instruction relating voluntary intoxication to the specific intent element of attempted burglary; (2) trial counsel was constitutionally ineffective; (3) the cumulative effect of the errors rendered the trial fundamentally unfair in violation of due process; and (4) the sentence given petitioner under the circumstances of this case constitutes cruel and unusual punishment.
Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.
On May 17, 1995, at around 3 a.m., Kent Clark was
awakened by "rustling sounds" in his backyard. His
backyard was surrounded by a six-foot high fence, and
the only gate was padlocked. Clark's house was
equipped with an alarm system, but the alarm was off
at the time. When the alarm system was off, it would
still beep for a few seconds whenever a door or window
was jiggled, moved or opened. A sign on Clark's front
door said "day sleeper."
Clark thought the sounds that had awakened him were
being produced by a possum. He tried and failed to get
back to sleep. He remained in bed listening to the
rustling sounds for at least 15 minutes. Clark
attempted to "ignore" the sounds, but then he heard
"thumping sounds" and "crunching." Clark became
curious as to what "the possum" was doing to his
house, so he got out of bed, went into this living
room and looked out of the sliding glass doors into
the backyard. Since he expected to see a possum, he
looked "low." The first thing he saw were some feet.
When he looked up, he saw a man "trying to get into my
window." The man was about five or six feet away from
Clark. He had dark hair in a ponytail and was wearing
a plaid shirt. Clark retreated and called 911.
While he was speaking to the 911 operator, his house
alarm began beeping. The beeping could be heard
throughout Clark's house. At 3:30 a.m., Clark's clock
radio went off and started loudly playing the radio.
The radio could be easily heard throughout the house
and outside the house. Clark returned to the sliding
glass doors and found the man "pressed against" the
doors trying to look into the house. Clark got a good
look at the man. It was defendant. Clark was not
acquainted with defendant and had never seen him
before. Clark left the room and informed the 911
operator that the man was still there. The 911
operator almost immediately informed him that a
suspect was in custody.
A police officer arrived in front of Clark's house
at 3:30 a.m. As the officer approached the house, he
heard the rustling of leaves and then sounds "like
shaking of a gate." He illuminated the gate with his
flashlight and saw defendant standing with his back
toward the officer urinating on the ground. Defendant
turned around and looked at the officer with "a blank
stare." Defendant was wearing a plaid shirt and had
his hair in a ponytail. The officer placed defendant
under arrest. In defendant's shirt pocket, the officer
found an object the size of a large straw which was a
combination of a flashlight and a screwdriver. The
officer immediately identified this item as a
"burglary tool." Defendant identified himself as "Joe
Lua." The arresting officer did not detect the odor of
alcohol on defendant's breath nor did he observe any
other sign that defendant was under the influence of
alcohol. He did notice that defendant had "glassy
eyes" and seemed "nervous," "dazed," "confused," and
"passive." Defendant also had "very slow speech."
Defendant had no difficulty understanding the
A couple of screens had been removed from the
windows of Clark's house. A "cooler" had been moved
from Clark's patio to a spot under one of the
windows. The frames of the screens were bent, and
there were 1-inch diameter holes in the bottoms of two
of the screens. A window that had had no outside
screen had been "half-pried apart."
Defendant's blood was drawn at 4:22 a.m. A
presumptive test for the presence of methamphetamine
in defendant's blood was performed nearly a year later
on May 10, 1996. This test was positive. On the same
date, defendant's blood sample was also tested for the
presence of alcohol. No alcohol whatsoever was
detected in defendant's blood sample.
Defendant was charged by information with attempted
burglary, and it was further alleged that he had
suffered two prior serious felony convictions (Pen.
Code, § § 667, subds. (a), (b) to (i),
1170.12) and had served prison terms for several prior
felony convictions (Pen. Code, § 667.5, subd.
(b)). The prior conviction and prison prior
allegations were bifurcated.
At trial, defendant's friend Andrew Gomez testified
for the defense. Gomez lived across the street from
Clark in May 1995. Gomez testified that defendant had
come to visit him on May 17 about 1 a.m. When he
arrived, Gomez noticed that defendant was "[n]ot
drunk" but [a] little bit tipsy" as if he had consumed
three or four beers. Gomez was aware that defendant
was a diabetic who used insulin. Yet he offered
defendant a beer and, according to Gomez, defendant
consumed one or two beers during his two-hour visit.
Gomez expressed the opinion that defendant was "drunk"
when defendant departed shortly after 3 a.m. When
asked to explain what "signs" he associated with
drunkenness, Gomez said "[b]asically being
The court refused defendant's request for
instructions on voluntary intoxication. The jury was
instructed that attempted burglary required "the
specific intent to steal. . . ." The jury found
defendant guilty of attempted first degree burglary.
Ex. F at 1-4.*fn1
A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA 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 evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
B. Issues Presented
Petitioner asserts that the trial court violated his due process rights when it refused to give a voluntary intoxication instruction.
A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995).
The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, the defendant is not entitled to have jury instructions raised in his or her precise terms where the given instructions adequately embody the defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); Tsinnijinnie, 601 F.2d at 1040.
The state appellate court held that there was not sufficient evidence to require the trial court to give a voluntary intoxication instruction. Ex. F at 5-7. It also pointed out that the trial court did instruct on specific intent. Id. at 4. The evidence which would have supported giving an instruction on voluntary intoxication was petitioner's friend Gomez' testimony that petitioner was "tipsy" when he arrived and had one or two beers while at Gomez' house; the arresting officer's testimony that petitioner had a blank stare and glassy eyes, seemed nervous, dazed, confused, and passive, and had slow speech; and the positive lab test for methamphetamine.
Whether failure to give the voluntary intoxication instruction violated due process depends upon the instructions as a whole. See Duckett, 67 F.3d at 745. The trial court did instruct the jury on the specific intent it must find to convict, ex. F at 4, and petitioner's counsel did argue that he could not have formed that specific intent, ex. F at 11.
To obtain habeas relief here petitioner must establish that the state appellate courts' rejection of his claim was contrary to, or an unreasonable application of, clearly established Supreme Court authority. The United States Supreme Court has recently rejected the Ninth Circuit's requirement that a district court must first determine whether the state courts erred, then go on to the "contrary to or unreasonable application of" question. Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003) (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1149-50 (9th Cir. 2000)). Therefore, the only question for this Court is whether the state appellate courts' decision was contrary to clearly established Supreme Court authority or an unreasonable application of it.
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 120 S.Ct. 1495, 1518, 1523 (2000). A state court decision is an "unreasonable application of" Supreme Court authority, falls under the second clause of § 2254(d), if it "unreasonably applies that principle to the facts of the prisoner's case." Id. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 1521-22. The state court need not cite federal cases, nor need it even be aware of them. "Avoiding these pitfalls does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 123 S.Ct. 362, 365 (2002) (per curiam) (emphasis in original).
The state appellate court decisions are not contrary to clearly established Supreme Court authority on a issue of law — that is, they did not hold, for instance, that failure to give an instruction essential to the defense cannot violate due process — nor are they contrary to any Supreme Court case which is indistinguishable on the facts. Petitioner has therefore failed to establish that the state court decisions meet the "contrary to" prong.
This Court also concludes that the state appellate courts were not "objectively unreasonable" in concluding that the evidence was not such as to require giving the instruction. Reasonable minds could differ on whether there was sufficient evidence. That requires rejection of this claim.
2. Assistance of counsel
Petitioner claims that his counsel was ineffective in four specific ways: (1) failure to object to evidence of petitioner's methamphetamine intoxication; (2) failure to develop a defense based on methamphetamine intoxication; (3) failure to use evidence of methamphetamine intoxication to support his request for a voluntary intoxication instruction; and (4) failure to object the prosecutor's use in closing of petitioner's methamphetamine addiction as a motive for the crime.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. See id.*fn2 First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.
Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 688. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Where the defendant is challenging his conviction, the appropriate question is "`whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Luna v. Cambra, 306 F.3d 954, 961 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 695).
b. Appellate court's decision
The California Court of Appeal set out the relevant facts regarding petitioner's ineffective assistance claims in considerable detail. Ex. F at 7-11. They will not be repeated here. The state appellate court applied the Strickland test. Id. at 11-12.
The appellate court concluded that petitioner had not overcome the presumption that counsel made a competent tactical decision in permitting admission of evidence of petitioner's methamphetamine addiction. Id. at 12. It also held that petitioner had failed to establish that evidence existed, not tendered at trial, which would link petitioner's intoxication to a state of mind inconsistent with an intent to steal. Id. at 12-13. It held that counsel's failure to mention methamphetamine in addition to alcohol when requesting the voluntary intoxication instruction was not prejudicial, because thee was no evidence that methamphetamine consumption had affected petitioner's ability to form the required specific intent. Id. at 13. Finally, the court assumed arguendo that counsel's failure to object to the prosecutor's references in closing argument to petitioner's methamphetamine addiction as motive for the crime was below the required standard of performance, but concluded that it was not prejudicial given the overwhelming evidence of petitioner's guilt. Id. at 14.
In addition, in petitioner's state habeas petition his admirably diligent appellate counsel provided several affidavits going to the methamphetamine intoxication issue. Ex. L (petition for habeas corpus), attached exhibits A-L. Among them is an affidavit from an expert on drug and alcohol abuse and treatment, in which the affiant concludes that petitioner was under the influence of methamphetamine when apprehended, and "that his mental state was significantly impaired by the effects of the methamphetamine and/or alcohol that he had consumed." Id. at ex. C, p. 5. In another affidavit, petitioner's niece stated that when petitioner was intoxicated he could be "confused and irrational." Id. at ex. D. She did not recall his conduct on the night he was arrested, and had been interviewed by counsel, whom she had told about petitioner's drug use. Id. A friend of petitioner related that petitioner used drugs, and that three or four years before the date of the affidavit the friend had seen petitioner engaging in bizarre behavior. Id. at ex. E, p. 1. The state habeas petition was denied without comment by the California Court of Appeal, ex. M, and the California Supreme Court denied review, ex. Q.
The essence of petitioner's claim regarding ineffective assistance is that his counsel behaved in a contradictory way: he did not object to admission of evidence of petitioner's methamphetamine use, but also failed to make effective use of it. Petitioner's contention that counsel was ineffective in failing to object to evidence that he appeared to under the influence of methamphetamine when arrested is without merit, that decision clearly being a tactical one. See United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981).
Petitioner also contends that counsel should have done more to develop the methamphetamine intoxication defense, should have based his request for a voluntary intoxication instruction upon methamphetamine intoxication as well as the alcohol intoxication ground he did raise, and should have objected to the prosecutor's suggestion in closing that need for money to support his methamphetamine habit was the motive for the crime. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as the result of the alleged deficiencies. Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n. 3 (9th Cir. 1995) (applauding district court's refusal to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice). As to these contentions, the Court will go directly to the prejudice prong of Strickland.
If the state's case is weak, the potential prejudicial effect of counsel's performance must be evaluated in light of that fact. Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997). Conversely, if the defense's case was strong, there is much less likelihood of a reasonable probability that the result of the trial would have been different. See, e.g., Greene v. Henry, 302 F.3d 1067, 1072-74 (9th Cir. 2002).
In this case the prosecution's case was exceptionally strong, even taking into account a possible voluntary intoxication defense. Petitioner was seen at the householder's windows and identified by him. When detained, petitioner had a burglary tool in his possession and was on the victim's property. Two windows had had their screens cut, and another was partially pried open. An ice chest had been moved to a position under a window, obviously to make it accessible, indicating planning and an ability to rationally further petitioner's intent to break into the house. When petitioner was apprehended he was pretending to urinate, and gave a false name. Petitioner had no difficulty understanding and following the arresting officer's instructions.
Much of this evidence, in addition to showing that petitioner attempted to break into the house, goes to whether petitioner was capable of forming the specific intent to steal. He was able to take rational steps to try to gain entrance to the house, to try to cover up his reason for being there, and was able to follow the officer's instructions. Although it is true that counsel could have done more with the methamphetamine addiction theory, respondent is correct that the affidavits collected by petitioner's appellate counsel do not show that further investigation, retention of an expert, or calling of additional witnesses would have added much. Given the strength of the evidence against petitioner, it was not unreasonable for the state appellate courts to conclude that petitioner had failed to show prejudice.
3. Cumulative error
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. Thomas v. Hubbard, 273 F.3d 1164, 1179-81 (9th Cir. 2002). However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). That is the situation here: this claim is without merit.
4. Eighth Amendment
Petitioner contends that his sentence, thirty-eight years to life for an attempted burglary by a "three-striker," is cruel and unusual. In Ewing v. California, 123 S.Ct. 1179 (2003), and Lockyer v. Andrade, 123 S.Ct. 1166 (2003), the United States Supreme Court recently considered whether sentences imposed under California's "three-strikes" law violated the Eighth Amendment. In Andrade, a habeas case, the Court held that the "only relevant clearly established law amenable to the `contrary to' or `unreasonable application of framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Id. at 1173. The Court also made clear that the offense to which gross disproportionality review should be applied should not be defined in terms of just the offense of which petitioner was convicted — in this case, attempted first degree burglary — but that a prisoner's record of recidivism is to be considered. Ewing, 123 S.Ct. at 1189-90.
The California Court of Appeal described petitioner's record as follows. Petitioner does not dispute his record.
Defendant's age, criminal history and character
establish that there is no hope that he will ever
reform his criminal ways. Defendant was 38 years old
at the time of sentencing. He had suffered seven prior
felony convictions, seventeen prior misdemeanor
convictions, twice been committed to the California
Youth Authority and severed six state prison
commitments. He had been released from custody only a
few months before he committed this offense. The
details of his criminal history are even more
appalling than the raw numbers.
Defendant was committed to the California Youth
Authority (CYA) at the age of 17 in August 1976. He
was paroled in March 1977, but he was returned to the
CYA in 1979 for receiving stolen property. He was
again paroled in January 1981. In May 1981, defendant
and several other individuals robbed and assaulted a
man, kicking him in the head and body and hitting him
in the head with a bottle. In October 1981, defendant
was convicted of robbery (Pen. Code, § 211) and
possession of stolen property (Pen. Code, § 496)
for the May 1981 offences and committed to state
prison for three years. He was paroled in August
1983. In November 1983, defendant, who had been
"crouched by the victim's fence," broke a beer bottle
and used the broken bottle to stab the victim in the
chest and back. His parole was revoked, and he was
returned to custody. In March 1984, defendant pleaded
guilty to a count of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)) and admitted
intentionally and personally inflicting great bodily
injury (Pen. Code, § 12022.7) on the victim of his
November 1983 offense. He was committed to state
prison for a seven-year term. Defendant was paroled in
Defendant was arrested in January 1988 for driving
under the influence and possessing PCP. His parole was
revoked. In February 1988, defendant was convicted of
possession of PCP (Health & Saf. Code, §
11377, subd. (a)) and driving under the influence
(Veh. Code, § 23152, subd. (a)). He was committed
to state prison for a two-year term. Defendant was
paroled in March 1989. He was arrested in May 1989.
His parole was revoked, and he was returned to
custody. He was paroled again in August 1989.
Defendant was arrested in September 1989 resulting in
another parole revocation and return to custody. He
was paroled in April 1990. Defendant was arrested in
July 1990, but his parole was reinstated.
He was arrested in November 1990 for possession of
PCP, and his parole was revoked. In February 1991,
defendant was convicted of a felony count of
possession of PCP (Health & Saf. Code, §
11377, subd. (a)). He was placed on probation with a
10-month county jail term and a suspended prison
term. Defendant stole a car in April 1991. In July
1991, defendant was convicted of driving or taking
away a vehicle (Veh. Code, § 10851) and committed
to state prison for a four-year term. Defendant
received a concurrent prison term for the February
1991 PCP possession conviction. He was released on
parole in July 1993. In September 1993, defendant was
convicted of driving with a suspended license (Veh.
Code, § 14601.2, subd. (a)) and given a ten-day
county jail sentence. Defendant was convicted of again
driving with a suspended licence (Veh. Code, §
14601.2, subd. (a)) and being under the influence in
public (Pen. Code, § 647, subd. (f)) in November
1993 and placed on probation. [Citation omitted]
Defendant was arrested in July 1994 on narcotics
charges. I-us parole was revoked and he was returned
to custody for a 10-month term. In January 1995, he
was convicted of being under the influence (Health
& Safety Code, § 11550, subd. (a)) and given a
county jail term of 338 days. The current offense
occurred in May 1995 at which time defendant had been
out of custody for no more than a few months.
Defendant has continued to deny ever having been in
Clark's backyard. He admitted that he has been abusing
drugs since 1979. In a major understatement, his
parole agent characterized his parole performance as
Ex. F at 17-19.
The California Court of Appeal considered the sentence under the California Constitution, stating that because the California provision is "arguably broader" than the federal one, if the sentence was constitutional under the California Constitution it also met federal requirements. Id. at 15 n. 4.
As discussed above, this Court's duty in considering a habeas petition is to determine if the state appellate courts' decisions were contrary to, or an unreasonable application of, clearly established Supreme Court authority. There are two ways in which a state court's decision can be "contrary to" clearly established Supreme Court authority: (1) if it applies a rule that contradicts the governing law set forth in the Supreme Court's cases; or (2) if the state court confronts facts which are "materially indistinguishable" from a decision of the Supreme Court but reaches a different result." Andrade, 123 S.Ct. at 1173. The procedure under the California Constitution, as applied by the Court of Appeal here, is not "contrary to" the only clearly established rule under the federal constitution, as determined in Andrade, which is that the sentence not be grossly disproportionate to the offense. And as was the case in Andrade, here petitioner retains the possibility of parole, meaning that this case is distinguishable from Solem v. Helm, 463 U.S. 277, 279 (1983), in which a sentence of life without parole was held to violate the Eighth Amendment. See Andrade, 123 S.Ct. at 1174. This case thus is not "contrary to" clearly established Supreme Court authority.
The Court of Appeal considered the details of petitioner's record "even more appalling" than the "raw numbers." Ex. F at 18. However, the details of his record show that he has not been guilty of a violent act since 1983, and that since that time he committed only non-violent offenses which appear to related to his drug addiction.*fn3 The Court also cannot subscribe to the Court of Appeal's statement that "[d]efendant's age, criminal history and character establish that there is no hope that he will ever reform his criminal ways." Ex. F at 17. The Court is aware that the California prison system provides, or used to provide, treatment programs for drug addicts. With advancing age, the hard experience of an extremely long sentence, and possible participation in drug programs, it may be that some day petitioner can be induced to conform his behavior to the law's requirements. But this is only to say that by the time petitioner is considered for parole, there may be hope he can behave lawfully in free society.
Given this record, which at least shows that petitioner is unable to conform his conduct to the law, and the seriousness of the current offense, which could easily have resulted in a confrontation between the householder and petitioner, the Court holds that the state appellate courts' conclusion that the sentence does not violate the Eighth Amendment was not an unreasonable application of clearly established Supreme Court authority. Therefore, habeas relief cannot be granted on this issue.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.