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United States District Court, N.D. California

April 1, 2004.

J. HAMLET, Warden, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the petition, the Court found the second and third claims cognizable, and the first claim cognizable in part. The Court ordered respondent to show cause why the petition should not be granted based on these cognizable claims. Respondent has filed an answer denying the petition, along with a supporting memorandum and exhibits. Petitioner has filed a traverse.


  On July 26, 1998, petitioner was arrested for stealing three jars of instant coffee, worth less than twenty dollars, from a Long's Drugs store. On December 7, 1998, a jury in San Mateo County Superior Court convicted petitioner of petty theft and commercial burglary. Because petitioner also had seven prior felony convictions, the trial judge Page 2 sentenced him to state prison under California's "Three Strikes Law" for a term of twenty-five years to life. The California Court of Appeal affirmed and the Supreme Court of California denied review.


 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 evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).

 B. Legal Claims

  1. Burglary Conviction

  The portion of petitioner's first claim that the Court found cognizable when liberally construed was his assertion that his conviction for commercial burglary is unconstitutional because "to convict someone of a crime on the basis of conduct that does not constitute the Page 3 crime offends the basic notions of justice and fair play embodied in the Constitution."*fn1 The Court found this claim cognizable based on petitioner's citation to United States v. Briggs. 939 F.2d 222 (5th Cir. 1991). The Briggs decision, however, is not applicable to petitioner's claim. Briggs relies on North Carolina v. Alford. 400 U.S. 25, 38 n.10 (1970), which provides that there must be a factual basis for a guilty plea. See Briggs, 939 F.2d at 228. Unlike the defendant in Briggs, petitioner did not plead guilty and does not assert that his right to due process was violated by entry of a guilty plea that was not knowing and voluntary. See id. Due process does require that evidence in support of a conviction be sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). Petitioner, however, does not contend that there was insufficient evidence to support a finding that he stole the coffee from the drug store. Rather, petitioner argues that this conduct did not constitute burglary within the meaning of the California Penal Code, an argument which the Court will next address.

  Petitioner is incorrect in arguing that his conduct did not in fact constitute burglary under California law. Petitioner's argument is that he did not commit a burglary because the doors of the Long's Drug store were not locked when he entered the store. In support of his argument, petitioner cites the phrase "when the doors are locked" in California Penal Code § 459, the statute defining burglary. Under California law, however, the locked door requirement only applies to burglary of an automobile. "Under section 459, an entry into almost any four-sided structure is a burglary without regard to whether the structure was locked — but an entry into a vehicle is a burglary only if the vehicle was locked." See In re Young, 49 Cal.App.4th 861, 864 (1996); see also People v. Frye. 18 Cal.4th 894, 954 (1998) (explaining that "a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner's or occupant's consent"). This determination of Page 4 state law by the state appellate courts is binding in this federal habeas action. Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988); Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Under California law binding on this Court, petitioner's conduct did in fact constitute commercial burglary.

  Moreover, federal habeas relief is not available based on petitioner's claim that his conduct did not constitute burglary under California law because the claim is a state law claim. A writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). The writ is unavailable to address violations of state law or alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119. Consequently, even if petitioner were correct that his conduct did not constitute burglary under California law, such claim would not be one upon which federal habeas relief could be granted.

  2. Cruel and Unusual Punishment

  Petitioner claims that his sentence violates his Eighth Amendment right to be free from cruel and unusual punishment. Two 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 contention 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 of one legal principle, specifically, that a gross disproportionality principle is applicable to sentences for terms of years. See Lockyer v. Andrade, 123 S.Ct. at 1173. As the Supreme Court noted, however, the precise contours of that principle are Unclear" and "applicable only in the `exceedingly rare' and `extreme' case." Id., In Ewing v. California, 123 S.Ct. 1179 (2003), the Supreme Court 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 Page 5 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. Although petitioner was convicted of commercial burglary and petty theft for stealing items worth approximately twenty dollars, the value of the items taken is not the only consideration. As Ewing explained, petitioner's criminal history properly may be considered in determining the proportionality of a sentence under the Eighth Amendment. See id The California Court of Appeal summarized petitioner's overall criminal history as follows: "Between 1975 and 1998, [petitioner] suffered nine felony and two misdemeanor convictions and [he] had, in every year since 1981, been either incarcerated, on probation, on parole, or convicted of a crime." Respt. Exh. G at 2.*fn2 Seven of petitioner's prior felonies, specifically, five counts of attempted murder, attempted manslaughter and arson, were found to be "serious" or "violent" within the meaning of California's Three Strikes Law. A sentence of 25 years to life 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 Page 6 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 prior convictions for residential burglary). Consequently, petitioner is not entitled to habeas relief on his Eighth Amendment claim.

  3. Double Jeopardy

  Petitioner claims that the Three Strikes Law is unconstitutional because it violates the Double Jeopardy Clause and punishes him for his "status" as a recidivist. This claim is not based on Supreme Court precedent, as is required by 28 U.S.C. § 2254(d)(1). See Williams (Terry) v. Taylor. 529 U.S. 362, 412 (2000) ("Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence."). To the extent the Supreme Court has addressed recidivist sentencing schemes such as the Three Strikes Law, it does not consider them to be punishment for the prior crimes or for the defendant's "status" as a recidivist; rather it is the repetitive nature of the present offense that the enhancement punishes. See McDonald v. Massachusetts. 180 U.S. 311, 312-13 (1901). To the extent the Three Strikes Law punishes petitioner for the repetitive nature of his current offense, it punishes him for his conduct, not his status, and consequently, does not implicate double jeopardy. In addition, the Ninth Circuit has concluded that the analogous federal Three Strikes Law "harsh and inflexible as it may be, is facially constitutional in general." See United States v. Kaluna, 192 F.3d 1188, 1198 (9th Cir. 1999) (en bane); see also id. at 1197-1200 (agreeing with other circuits that the statute does not violate, inter alia, Double Jeopardy Clause). As a result, habeas relief is not available on petitioner's claim that the Three Strikes Law constitutes punishment for his status and violates the Double Jeopardy Clause. Page 7


  In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated.

  The Clerk shall close the file.




 ___Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

 XX Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED. All pending motions are terminated.

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