The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a California prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court sentence for possession of heroin and a syringe. The Court ordered respondent to show cause why the petition should not be granted based on petitioner's two claims: (1) that his sentence of twenty-five years to life under California's Three Strikes Law constitutes "cruel and unusual punishment" under the Eighth Amendment and (2) the Three Strikes Law violates due process and equal protection by imposing greater punishment on recidivists whose crimes are of decreasing seriousness. Respondent filed an answer along with a supporting memorandum and exhibits denying the petition, and petitioner filed a traverse. Pursuant to further order by the Court, respondent filed a supplemental memorandum in support of his answer, and petitioner filed a supplemental traverse.*fn1
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 1995, a police officer in Gilroy, California, saw petitioner and his codefendant inside the doorway of a vacant building. The officer saw the codefendant injecting something into his arm; he also saw petitioner throw a syringe behind him. After ordering the men to stop, the officer searched petitioner and found .04 grams of heroin in his possession. The trial court in Santa Clara County Superior Court convicted petitioner of possession of heroin and drug paraphernalia, and petitioner admitted to eight prior "serious" or "violent" felony convictions within the meaning of California's Three Strikes Law. The Court sentenced petitioner to a term of 25 years to life in state prison. On appeal, the California Court of Appeal remanded to allow the trial court to exercise its discretion to strike petitioner's prior convictions. On remand, the trial court reinstated the original sentence. The California Court of Appeal and the Supreme Court of California denied petitioner's direct appeals in which he raised the same claims he raises in the instant petition.
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 evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000).
1. Cruel and Unusual Punishment
Petitioner claims that his sentence violates his Eighth Amendment right to be free from cruel and unusual punishment. Two recent decisions by the United States Supreme Court require denial of petitioner's claim. In Lockyer v. Andrade, 123 S.Ct. 1166 (2003), the Supreme Court rejected the notion that Supreme Court case law in this area was either clear or consistent enough to constitute clearly established federal law within the meaning of 28 U.S.C. § 2254(d), with the exception that it was clearly established that a gross disproportionality principle is applicable to sentences for terms of years. See Lockyer v. Andrade, 123 S.Ct. at 1173. The precise contours of that principle, however, are "unclear" and "applicable only in the `exceedingly rare' and `extreme' case." Id. The other recent decision, Ewing v. California, 123 S.Ct. 1179 (2003), upheld a sentence of 25 years to life under California's Three Strikes Law for a recidivist convicted of theft. See Ewing, 123 S.Ct. at 1190. In Ewing, the Supreme Court explained that the Three Strikes Law was not constitutionally infirm and that states may deal in a harsher manner with repeat offenders. See id.
Here, petitioner's sentence of 25 years to life in prison does not raise an inference of gross disproportionality to his crimes. Petitioner was convicted of possession of .04 grams of heroin. Petitioner's overall criminal history, which, as Ewing explained, properly may be considered in determining the proportionality of a sentence under the Eighth Amendment, see id., includes "nine prior felony convictions, seven prior misdemeanor convictions, two prior commitments to the California Youth Authority and two prior commitments to the California Department of Corrections." See slip op. at 4-5. Eight of his prior felonies — rape, assault, battery, and five counts of robbery — were found to be "serious" or "violent" within the meaning of the Three Strikes Law. A 25-years-to-life sentence does not raise an inference of gross disproportionality to petitioner's crime in light of the length and seriousness of his criminal record. See, e.g., id. (finding Three Strikes sentence of 25 years to life not unconstitutionally disproportionate to conviction for shoplifting three golf clubs worth $399 apiece, where defendant had suffered three prior burglary convictions and one prior robbery conviction); Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality opinion) (upholding sentence of life without possibility of parole for first offense of possession of 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 370-71, 375 (1982) (rejecting challenge to 40-year sentence for possession with intent to distribute less than nine ounces of marijuana); Rummel v. Estelle, 445 U.S. 263, 265-66 (1980) (upholding life sentence imposed under recidivist statute where defendant convicted of obtaining $120.75 by false pretenses, after having previously been convicted of passing forged check in amount of $28.36 and fraudulently using credit card to obtain $80 worth of goods and services).
The California Court of Appeal's conclusion that petitioner's sentence was not grossly disproportionate to his crime was not an unreasonable application of or contrary to clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1). See, e.g., Lockyer, 123 S.Ct. at 1179 (denying habeas claim that Three Strikes sentence of 50 years to life was unconstitutionally disproportionate to conviction for two counts of shoplifting videotapes worth total of $153.54, where defendant had suffered three ...