Crosby v. Schwartz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURTNEY CROSBY,  No. 10-17726

Petitioner-Appellant, D.C. No.

v.  2:05-cv-00047-

T. SCHWARTZ, GEB-KJN

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

March 13, 2012—San Francisco, California

Filed May 4, 2012

Before: John T. Noonan, Jr., M. Margaret McKeown, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Noonan

4783

4786 CROSBY v. SCHWARTZ

COUNSEL

Eric Weaver (argued), Albany, California, for petitioner-

appellant Courtney Crosby.

Kamala D. Harris, Michael P. Farrell, and David Andrew

Eldridge (argued), Office of the California Attorney General,

Sacramento, California, for respondent-appellee T. Schwartz.

CROSBY v. SCHWARTZ 4787

OPINION

M. SMITH, Circuit Judge:

Courtney Crosby appeals the district court’s denial of his

federal petition for a writ of habeas corpus. He raises three

claims on appeal. First, Crosby challenges the California

Court of Appeal’s conclusion that his waiver of his Sixth

Amendment right to a jury trial was valid. Second, he claims

that the California court erred in finding that the trial court

acted within its discretion to deny his subsequent attempt to

withdraw the jury trial waiver. Finally, Crosby contends that

the California court erred in finding that his sentence of 26

years to life under California’s Three Strikes Law did not con-

stitute cruel and unusual punishment under the Eighth

Amendment. Because we conclude that these holdings of the

California Court of Appeal were neither contrary to, nor

involved an unreasonable application of, clearly established

Federal law, we affirm the district court’s denial of Crosby’s

habeas petition.

FACTUAL AND PROCEDURAL BACKGROUND

On July 5, 1999, Sacramento police responded to a call for

disturbing the peace at the Ethan Terrace Apartments in Sac-

ramento County. Police found petitioner Crosby and another

man named Rivers upon arrival at the scene. Crosby initially

told the officer his name was Sirleaf Flomo, and when asked

for identification, produced a falsified driver’s license and a

stolen Social Security card. He was finally identified by Riv-

ers as Courtney Crosby. When the officer ran a check on

Crosby’s real name, he discovered that Crosby had an out-

standing felony no bail warrant for violation of California

Penal Code Section 290, California’s sex offender registration

statute. The officer arrested Crosby. The officer found several

other stolen identification and insurance cards in Crosby’s

wallet.

4788 CROSBY v. SCHWARTZ

Crosby was charged with three counts of failing to register

under Section 290. Section 290, as it read when Crosby was

arrested, stated that every person who qualifies, “for the rest

of his or her life while residing in, or, if he or she has no resi-

dence, while located within California, shall be required to

register with the chief of police of the city in which he or she

is residing, or if he or she has no residence, is located, or the

sheriff of the county if he or she is residing, or if he or she

has no residence, is located, in an unincorporated area or city

that has no police department.” Cal. Penal Code

§ 290(a)(1)(A) (1998) (emphasis added). Section 290(g)(2)

provides that anyone who is required to register under this

section because of a prior felony conviction, but fails to do so,

is guilty of a felony. Id. § 290(g)(2). One of Crosby’s failure

to register counts was dismissed before Crosby proceeded to

trial. Thus, at trial, Crosby faced two charges. He faced one

count for failing to register within five working days after

moving from his residence, in violation of Section 290(f).

Crosby faced another court for failing to register within five

working days of his birthday, in violation of Section

290(a)(1)(c). Crosby was further alleged to have three prior

felony convictions for 1) rape, Cal. Penal Code § 261a(2), 2)

forced copulation, Cal. Penal Code § 288(c), and 3) robbery,

Cal. Penal Code § 667(b)-(i).

Prior to trial, Crosby’s counsel and the prosecutor dis-

cussed whether to proceed to trial on the Section 290 registra-

tion charges first or the separate charges for receiving stolen

property. Crosby’s counsel informed the court that Crosby

would waive his right to a jury trial for the Section 290

charges, and the court engaged in a colloquy with Crosby in

which Crosby waived his right to a jury trial.

At Crosby’s bench trial, the assistant manager at Crosby’s

last registered address, Ethan Terrace Apartments, testified

that Crosby lived at the apartment with his mother and moved

out on February 14, 1999. A friend of Crosby, April Lowe,

testified that Crosby told her around March 30, 1999 that he

CROSBY v. SCHWARTZ 4789

had been living in West Sacramento for about two weeks, and

that he may have told her that he had stayed at the Dodge City

Inn prior to that.

Crosby was initially registered as a sex offender on Febru-

ary 27, 1989. Records indicated that he executed three annual

updates and nine change of address updates after his initial

registration. Testimony from Sacramento Deputy David

Anderson established that Crosby last executed an annual reg-

istration form on July 15, 1998, reporting his address as 1822

Ethan Way, Apartment 23 in Sacramento. Crosby did not file

any more registration updates through the date of his arrest on

July 15, 1999.

The trial judge found Crosby guilty of failing to annually

register and failing to register within five days of his birthday.

The trial court also found as true Crosby’s prior felony con-

victions and prior prison term. Crosby was sentenced under

California’s Three Strikes Law to an indeterminate sentence

of 25 years to life, plus a one-year enhancement for his prior

prison term. The California Court of Appeal affirmed the con-

viction on appeal.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s denial of a 28 U.S.C. § 2254 peti-

tion for writ of habeas corpus de novo. Silva v. Woodford, 279

F.3d 825, 835 (9th Cir. 2002). We review findings of law

made by the district court for clear error. Id.

We apply the deferential standard of review of the Anterro-

rism and Effective Death Penalty Act (AEDPA) to Crosby’s

petition. Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011).

Under AEDPA, we are barred from granting habeas relief on

any claim that has been adjudicated on the merits in Califor-

nia state courts unless the adjudication of the claim “(1)

resulted in a decision that was contrary to, or involved an

4790 CROSBY v. SCHWARTZ

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); Harring-

ton v. Richter, 131 S. Ct. 770, 783-84 (2011). We review the

last reasoned state court decision—here, the California Court

of Appeal’s decision. Horell, 644 F.3d at 978.

“Clearly established” federal law refers to the “holdings, as

opposed to the dicta, of the [Supreme Court’s] decisions as of

the time of the relevant state-court decision.” Lockyer v.

Andrade, 538 U.S. 63, 71 (2003) (internal citation and quota-

tion omitted). A “state-court decision can be ‘contrary to’

th[e] Court’s clearly established precedent . . . if the state

court arrives at a conclusion opposite to that reached by th[e]

Court on a question of law.” Williams v. Taylor, 529 U.S.

362, 405 (2000). A state-court decision would also be con-

trary to the “Court’s clearly established precedent if the state

court confronts a set of facts that are materially indistinguish-

able from a decision of th[e] Court and nevertheless arrives at

a result different from [that] precedent.” Id. A state court deci-

sion is an “unreasonable application” of clearly established

federal law if the state court “correctly identifies the govern-

ing legal rule but applies it unreasonably to the facts of a par-

ticular prisoner’s case.” Id. at 407-08. In evaluating what is an

unreasonable application, the fact that a state court decision

is incorrect or erroneous is not enough; rather, it must be “ob-

jectively unreasonable.” Lockyer, 538 U.S. at 75.

The Supreme Court recently emphasized the extremely def-

erential nature of this review. Explaining that while Section

2254(d) “stops short of imposing a complete bar on federal

court relitigation of claims already rejected in state court pro-

ceedings,” the Court emphasized that AEDPA only permits

the court to grant a writ of habeas corpus “where there is no

possibility that fairminded jurists could disagree that the state

court’s decision conflicts with th[e Supreme] Court’s prece-

CROSBY v. SCHWARTZ 4791

dents.” Harrington, 131 S. Ct. at 786. Our review of Crosby’s

appeal is thus limited by the constraints of AEDPA.

DISCUSSION

I. Jury Waiver

[1] Crosby first contends that he should be granted habeas

relief because his jury waiver was ineffective. The right to a

jury trial, conferred by the Constitution, is waivable, as long

as the waiver includes the consent of the government counsel,

the sanction of the court, and the “express and intelligent con-

sent of the defendant.” Patton v. United States, 281 U.S. 276,

312 (1930), overruled on other grounds by Williams v. Flor-

ida, 399 U.S. 78, 92 (1970). We hold that the California Court

of Appeal reasonably concluded that Crosby’s jury trial

waiver was express and intelligent.

The following colloquy occurred at a hearing on February

7, 2002, during which the court discussed scheduling matters

for Crosby’s charges for Section 290 failures to register and

his receipt of stolen property:

THE COURT: Mr. Crosby, you do have on these

matters the right to a speedy public jury trial. That

is one of the rights that you have. The Court’s per-

fectly willing to go down that road and have jury tri-

als. That’s what we do all the time. We’ve got plenty

of seats out in the audience, plenty of places for the

jurors here, and we’re perfectly willing to proceed in

that fashion.

Although you do have the right to waive a jury

trial, that is to give up a jury trial, that is one of the

rights that you have as long as the District Attor-

ney’s Office would consent to that. Mr. Higgins has

already indicated to the Court that the D.A.’s office

would consent to your waiver of a jury trial in the

4792 CROSBY v. SCHWARTZ

290 case, the failure to register charge that’s against

you.

Mr. Crosby, have you discussed that with your

counsel, and are you satisfied that you want to waive

your right to a jury trial in that case?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Walton, do you join in that

waiver?

MR. WALTON: Join, Your Honor.

THE COURT: The People join in that waiver?

MR. HIGGINS: Yes. People join, Your Honor.

THE COURT: Mr. Crosby, if you waive your right

to that jury trial, then I as the judge in the matter

would act as not just the judge but also the finder of

fact as to whether or not those allegations against

you were true or not true and whether you were

guilty or not guilty of the three charges included in

that Information. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: It appears to me that you understand

what is going on, Mr. Crosby. So the Court will

accept your waiver of a jury trial, and it will proceed

as a court trial on the 290 charge, that’s case 03592.

The California Court of Appeal evaluated the above collo-

quy, with an understanding that a jury trial waiver would only

be valid if it is made knowingly and intelligently, with a full

understanding of the right being abandoned and the conse-

quences of the abandonment of that right. The state court

CROSBY v. SCHWARTZ 4793

rejected Crosby’s arguments that the above exchange only

showed that he “understand” and “wanted to” waive the right,

but did not expressly do so, and found that the colloquy estab-

lished that he expressly waived the right.

[2] We cannot say that this conclusion was contrary to or

an unreasonable application of clearly established Supreme

Court law. Crosby first answered “yes” when the court asked

him “Mr. Crosby, have you discussed that with your counsel,

and are you satisfied that you want to waive your right to a

jury trial in that case?” Crosby then answered “yes” when the

court asked him if he understood what he would be giving up.

Taken together, it was not objectively unreasonable for the

appeals court to conclude that Crosby knowingly and intelli-

gently waived his jury trial rights. See Lockyer, 538 U.S. at

75-76.

Crosby argues on appeal that he did not expressly waive his

rights. However, the record belies this contention. The court

expressly asked, “are you satisfied that you want to waive

your right to a jury trial,” and Crosby answered the question

in the affirmative. While Crosby acknowledges this answer,

he argues that the court recognized that Crosby had not agreed

because it prefaced the subsequent question regarding the

consequences of waiver with “if you waive your right to that

jury trial.” We agree with the California Court of Appeal that

this argument amounts to grammatical parsing, and that the

exchange between Crosby and the court just prior to this state-

ment cannot be ignored. Moreover, even if it were plausible

to construe the phrase as Crosby urges, under AEDPA’s def-

erential review, a simple mistake or error on the part of the

state court is not enough, and we cannot conclude that there

is no possibility that fairminded jurists could agree with the

state court’s interpretation. Harrington, 131 S. Ct. at 786.

Additionally, to the extent that Crosby now argues that misap-

plication of laws by the state court somehow deprived him of

a liberty interest protected by the Fourteenth Amendment

against arbitrary deprivation by the state, this claim is barred

4794 CROSBY v. SCHWARTZ

by exhaustion because he did not raise the issue in the state

court. 28 U.S.C. § 2254(b).

Accordingly, we reject Crosby’s argument that the Califor-

nia Court of Appeal’s conclusion on the validity of the jury

waiver was contrary to or an unreasonable application of

Supreme Court precedent.

II. Withdrawal of Jury Waiver

Crosby next argues that he should be granted habeas relief

because the trial court erroneously denied his subsequent

request to withdraw his jury waiver. We deny Crosby’s peti-

tion on this ground because he has not established that there

is any clearly established Supreme Court law that holds that

the Constitution guarantees a right to a jury trial after a valid

waiver of that right.

The bench trial was set to begin four days after Crosby

waived his rights to a jury trial. The morning of trial, Crosby

attempted to withdraw his jury waiver. The trial judge denied

the request, finding that it was within his discretion to decide

whether to accept the withdrawal or reject it. In particular, the

court pointed to the fact that the motion was made just before

the first witness was to be put on the stand, that days had been

wasted that could have been used to select a jury, and that all

the witnesses were ready to go that day as scheduled.

The California Court of Appeal found that the trial court

properly considered the timeliness of the motion on the day

trial was set to begin, and the impact on the witnesses who

were ready to take the stand that day. Thus, the court con-

cluded that the trial court’s decision to deny the withdrawal

request was not an abuse of discretion.

[3] As previously discussed, Supreme Court precedent

establishes that a defendant has a right to a jury trial, but that

right is waivable, as long as the waiver is express and intelli-

CROSBY v. SCHWARTZ 4795

gent. Patton, 281 U.S. at 312. However, Patton is silent on

whether there is a duty for a court to restore the right to jury

trial, once the defendant has validly waived it, upon request

of the defendant. Crosby fails to point us to, nor have we

found, any Supreme Court case that deals squarely with this

issue. Thus, there is no “specific legal rule that has been

squarely established” on this issue by the Supreme Court.

Harrington, 131 S. Ct. at 786.

The Sixth Circuit in Sinistaj v. Burt, 66 F.3d 804 (6th Cir.

1995) reached the same conclusion. The Sixth Circuit found

that there was no authority for the proposition that “when a

state court abuses its discretion in denying a defendant’s

motion to withdraw a previously filed waiver of jury trial, the

result is a violation of the United States Constitution.” Id. at

808. Finding that perhaps such a violation could be made out

in certain circumstances, the court emphasized that it could

“conceive of no situation in which a federal judicial determi-

nation on habeas collateral review that a state court, as a mat-

ter of general law, abused its discretion in denying the

withdrawal motion is therefore a violation of the federal Con-

stitution.” Id. (emphasis in original). Addressing a similar

issue in the context of an attempted withdrawal of a waiver

of the right to counsel, we held in John-Charles v. California,

646 F.3d 1243 (9th Cir. 2011), that there was no Supreme

Court precedent to establish an absolute right to reinstate

counsel after a valid waiver of the right to counsel under

Faretta v. California, 422 U.S. 806 (1975).

[4] Nor can we say that the California Court of Appeal’s

conclusion violates the general principles regarding the

waiver of a jury trial set forth in Supreme Court cases, such

as Patton. We have held that while waiver of a jury trial is not

forever binding on the defendant, the right to withdraw it is

not absolute and it may only be withdrawn if it is timely.

United States v. Mortensen, 860 F.2d 948, 950-51 (9th Cir.

1988). A request is timely if “granting the motion would not

unduly interfere with or delay the proceedings.” Id. at 950

4796 CROSBY v. SCHWARTZ

(finding that withdrawal request was untimely when it was

made on the morning of trial). Thus, fairminded jurists cer-

tainly could agree with the state court’s conclusion that the

trial court did not abuse its discretion when it denied Crosby’s

request for withdrawal the day trial was set to begin as

untimely because granting it would have interfered with and

delayed his trial.

[5] Accordingly, we also reject Crosby’s argument that the

California Court of Appeal’s conclusion as to the withdrawal

of jury waiver was contrary to or an unreasonable application

of Supreme Court precedent.

III. Eighth Amendment Claim

Crosby’s last claim is that his sentence of 26 years to life

violates the Eighth Amendment because it constitutes cruel

and unusual punishment. Crosby was convicted of both fail-

ing to annually update his registration five days after his birth-

day, in violation of former California Penal Code

§ 290(a)(1)(c), and failing to register within five days of a

change of address, in violation of former California Penal

Code § 290(f). The trial court found as true three prior felony

convictions for rape, forced copulation, robbery. Based on

these qualifying priors and the current conviction, the trial

court sentenced Crosby to 26 years to life under California’s

Three Strikes Law.

[6] The Eighth Amendment commands that “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. CONST. amend.

VIII. The clause against cruel and unusual punishment pro-

hibits “not only barbaric punishments, but also sentences that

are disproportionate to the crime committed.” Solem v. Helm,

463 U.S. 277, 284 (1983); see also Rummel v. Estelle, 445

U.S. 263, 274 n.11 (1980) (upholding the life sentence under

a Texas recidivist sentencing statute, but cautioning that a

CROSBY v. SCHWARTZ 4797

proportionality principle could come into play in extreme cir-

cumstances).

[7] To apply the deference required under AEDPA, we

first must determine what constitutes clearly established Fed-

eral law in this context. As we previously recognized in Gon-

zalez v. Duncan, 551 F.3d 875 (9th Cir. 2008), what is clear

is that a “gross proportionality principle” applies when evalu-

ating a terms of years sentence under the Eighth Amendment.

Id. at 882 (citing Lockyer, 538 U.S. at 72). However, the pre-

cise contours of this principle are unclear, and it has been

applied only in exceedingly rare and extreme circumstances.

Andrade, 538 U.S. at 73.

In Solem v. Helm, the Supreme Court announced three fac-

tors that serve as guidance in reviewing a terms of years sen-

tence under the Eighth Amendment. First, “we look to the

gravity of the offense and the harshness of the penalty.”

Solem, 463 U.S. at 290-91. Second, “it may be helpful to

compare the sentences imposed on other criminals in the same

jurisdiction.” Id. at 291. Third, we may “compare the sen-

tences imposed for commission of the same crime in other

jurisdictions.” Id. The Supreme Court applied these factors to

a conviction for uttering a no account check for $100 under

South Dakota’s recidivist statute, where the defendant also

had priors for three burglaries, obtaining money under false

pretenses grand larceny, and driving while intoxicated. Id. at

281-82. The court found that the sentence violated the Eighth

Amendment, noting that Solem’s offense was “one of the

most passive felonies a person could commit” and did not

involve violence or the threat of violence to any person. Id.

at 296 (internal quotation marks omitted).

[8] However, despite its enunciation of the three factors in

Solem and concluding that Solem’s sentence violated the

Eighth Amendment, the Supreme Court has since handed

down several opinions upholding sentences under the dispro-

portionality principle without agreeing on a uniform set of

4798 CROSBY v. SCHWARTZ

factors lower courts are to consider when deciding such sen-

tencing cases. See Harmelin v. Michigan, 501 U.S. 957 (1991)

(upholding life sentence for possession of more than 650

grams of cocaine, but without a majority opinion agreeing on

what factors comprise the gross proportionality test); Ewing

v. California, 538 U.S. 11 (2003) (plurality opinion) (uphold-

ing a life sentence under California’s Three Strikes Law for

a felony conviction for grand theft of personal property (golf

clubs) in excess of $400, without a majority opinion). Finally,

in Lockyer v. Andrade, the Supreme Court upheld a California

Three Strikes 25 to life sentence for petty theft convictions for

theft of $153.54 worth of videotapes. 538 U.S. at 66. The

Supreme Court has emphasized that a term of years sentence

only violates the Eighth Amendment in extraordinary circum-

stances. Id. at 77. The Supreme Court also emphasized that

“[o]ur cases exhibit a lack of clarity regarding what factors

may indicate gross disproportionality.” Id. at 72.

We have applied the Supreme Court’s nebulous gross dis-

proportionality test in a number of habeas cases challenging

convictions under California’s Three Strikes Law, and have

reached different results based on the factual situations pre-

sented in each case. See Ramirez v. Castro, 365 F.3d 755,

756, 767-75 (9th Cir. 2004) (holding that a life sentence for

shoplifting of a $199 VCR with qualifying priors for shoplift-

ing was “harsh . . . beyond any dispute” and an “extremely

rare case” where the state court unreasonably applied the

gross disproportionality principle); Nunez v. Ramirez-Palmer,

485 F.3d 432, 440, 443 (9th Cir. 2007) (upholding a life sen-

tence for conviction for shoplifting of $114.40 worth of

tools); Taylor v. Lewis, 460 F.3d 1093, 1101 (9th Cir. 2006)

(upholding a life sentence for possession of 0.036 grams of

cocaine following long history of recidivism, including vio-

lent crimes); Rios v. Garcia, 390 F.3d 1082, 1083 (9th Cir.

2004) (upholding a life sentence for stealing $79.98 worth of

watches with prior robbery convictions).

It was against this background that we decided Gonzalez v.

Duncan, 551 F.3d 878 (9th Cir. 2008), a case involving a Sec-

CROSBY v. SCHWARTZ 4799

tion 290 conviction as the triggering offense for a Three

Strikes sentence. Gonzalez was convicted of failing to annu-

ally register within five days of his birthday, as required under

the sex offender statute. Id. at 878. This is one of the charges

of which Crosby was convicted. Gonzalez was acquitted of

the other charge of which Crosby was convicted—failing to

register after a change of address. Id. Applying the Solem

framework, we found that failing to annually register as a sex

offender was a purely regulatory offense. Id. at 884. We

stated that the purpose of the sex offender registration law is

to prevent recidivism in sex offenders by making sure they are

available for police surveillance. Id.

[9] Importantly, we contrasted the annual registration

requirement and the address change registration requirement

of Section 290. The annual registration requirement is “only

tangentially” related to the state’s interest in ensuring that sex

offenders are available for police surveillance, and it is a mere

backup measure to ensure the authorities have accurate infor-

mation. Id. Thus, failure to comply with the annual registra-

tion requirement is a technical violation that by itself poses no

danger to society. Id. In contrast, we noted that the address

change requirement is directly related to the state’s interest in

ensuring that it knows the whereabouts of its sex offenders.

Id. We observed that the California courts have made a dis-

tinction between the two registration requirements and that

this distinction is “critical” to our analysis. Id. at 885.

When Gonzalez was decided, we did not have the benefit

of any decision from the Supreme Court, or our own court’s

interpretation of the Supreme Court’s disproportionality prin-

ciple, to guide our analysis regarding a conviction for failure

to register as a sex offender. We stand on different ground

today. Gonzalez does not present a factual situation identical

to what we face here, but its logic and reasoning remain

highly instructive and persuasive.

Crosby and Gonzalez differ because Crosby was convicted

of the other charge of which Gonzalez was acquitted—failing

4800 CROSBY v. SCHWARTZ

to register within five days of a change of address. We found

a clear distinction between the address change requirement

and the annual registration requirement in Gonzalez, and we

cannot ignore that distinction here. In light of the distinction

made in Gonzalez, we cannot say the state court’s decision

was objectively unreasonable or that there is no possibility

that fairminded jurists could agree with the decision.

[10] The California Court of Appeal concluded that Cros-

by’s conviction was not merely a technical violation. The

court observed that Crosby was not living at the address

shown in his last registration, and that when the officer con-

fronted Crosby prior to his arrest, he actively lied about his

identity, and provided falsified identification cards, in an

attempt to evade and deceive law enforcement. In Gonzalez,

we concluded that a conviction for failure to register after an

address change is directly related to the state’s interest in

ensuring that it knows the whereabouts of its sex offenders.

Gonzalez, 551 F.3d at 884. This distinction puts the convic-

tion here in stark contrast to the mere technical violation for

failure to annually register. Id.

[11] The California Supreme Court has also held that this

distinction is crucial. In People v. Meeks, 123 Cal. App. 4th

695 (2004), the court held that a life sentence for failure to

register after a change of address did not violate the Eighth

Amendment. Similar to Crosby, the defendant in Meeks

vacated his registered residence, and lived in various places

without registration, including with family and spending some

time on the streets, prior to his arrest. Id. at 701. The court

found that the address change registration requirement is one

that is “intended to avoid, or at least minimize, the danger to

public safety posed by those who have been convicted of cer-

tain sexual offenses.” Id. at 708. The court emphasized the

importance of continued registration in order to effectuate the

purpose of the registration requirement, and rejected the

defendant’s contention that the crime was de minimis because

of its grounding in society’s interest in having sex offenders

CROSBY v. SCHWARTZ 4801

readily available for police surveillance at any time. Id. at

709-10 (“We see nothing ‘de minimis’ either in the offenses

in the abstract or in the circumstances attending their commis-

sion.”). In contrast, in People v. Carmony, 127 Cal. App. 4th

1066 (2005), the California Supreme Court held that a life

sentence for failure to annually register violates the Eighth

Amendment. The court emphasized that the defendant had not

moved since his last registration, so there was no new infor-

mation to update, and the defendant in fact still lived at his

last registered address when he was arrested. Id. at 1072-73.

The court discussed at length the legislative history behind the

annual registration requirement and found that this section

was “intended to address the problem of offenders who fail to

notify authorities of an address change” and was a “backup

measure to ensure that authorities have current accurate infor-

mation.” Id. at 1078-79. The court additionally pointed out

that “because defendant did not evade or intend to evade law

enforcement officers, his offense was the most technical and

harmless violation of the registration law we have seen.” Id.

at 1078 (emphasis added).

[12] In light of our opinion in Gonzalez and the California

Supreme Court’s holdings in Carmony and Meeks, we cannot

conclude that the state court acted unreasonably when it

applied the disproportionality principle to Crosby’s case in the

same way we and the California Supreme Court have done.

Crosby’s factual circumstance is virtually indistinguishable

from the factual circumstance in Meeks. Taken together, these

three cases emphasize a consistent principle found in the sex

offender registration context—whether the crime is a de

minimis crime for which a life sentence is disproportionate is

related to how closely the violation is tied to helping achieve

the purposes of the sex offender registration statute. See Gon-

zalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at

1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state

court was not objectively unreasonable when it concluded that

Crosby’s failure to register after he moved was not a mere

technical offense. Crosby was no longer living at his last reg-

4802 CROSBY v. SCHWARTZ

istered address at the time of his arrest, and his failure to reg-

ister impeded the police’s ability to find him for surveillance.

The state court’s decision is even more reasonable because,

unlike the defendant in Carmony, there was evidence that

Crosby was actively attempting to evade his obligation to reg-

ister through the theft and falsifying of stolen identification

cards.

[13] Additionally, the California Court of Appeal found

that Crosby’s prior convictions were serious and violent

crimes. It noted that during the incident resulting in the rape

and forcible copulation convictions, Crosby engaged in multi-

ple acts of violence and threatened the life of the victim. It

was further noted that during the prior robbery conviction,

Crosby and an accomplice robbed a restaurant at gunpoint.

The use of violence in Crosby’s prior convictions distin-

guishes his case from those in which the inference of dispro-

portionality was found to be met by the court.1 See Solem, 463

U.S. at 298 (discussing how Solem’s prior convictions were

all “nonviolent and none was a crime against a person”);

Ramirez, 365 F.3d at 755 (emphasizing how Ramirez’s prior

convictions were all nonviolent in nature and that no weapons

were involved in the offenses).

[14] Circumstances satisfying the gross disproportionality

principle are rare and extreme, and constitutional violations

1

We acknowledge that in Gonzalez, the defendant had a criminal history

that was “extensive” and included a conviction for forcible rape and lewd

conduct with a child. 551 F.3d at 886. However, in spite of the extensive

priors, the court found the sentence was still too harsh because the current

crime did not reveal any propensity to recidivate. Id. at 887. Crosby’s

prior convictions cannot be excused by such a lack of relationship; rather

the conviction for failing to register after an address change, with evidence

of intentional evasion of the requirement, can be said to be rationally

related to recidivism. See Meeks, 123 Cal. App. 4th at 709 (recognizing

that “sex offenders present a serious danger to society because of their ten-

dency to repeat their sexual offenses” and that a history of prior sexual

crimes may make one a person “who law enforcement needs to have read-

ily available for police surveillance at all times”).

CROSBY v. SCHWARTZ 4803

on that ground are “only for the extraordinary case.” Lockyer,

538 U.S. at 77. Crosby’s challenge arises under AEDPA, and

we must give the appropriate deference to California Court of

Appeal’s decision. In light of the various cases that have dealt

precisely with sex offender registration convictions under the

gross disproportionality principle, it was not an unreasonable

application of clearly established federal law for the Califor-

nia Court of Appeal to affirm Crosby’s sentence under the

Eighth Amendment.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court to deny Crosby’s petition for a writ of habeas

corpus.

NOONAN, Circuit Judge, concurring and dissenting:

First lawyer: “His sentence is imprisonment. Twenty-five

years to life.”

Second lawyer: “That’s pretty standard.”

First lawyer: “It depends on the crime. Crosby’s crime

was failing to let the state know of his change of address. The

maximum penalty for this offense by itself is three years.”

Second lawyer: “So he was a recidivist. He had already

committed two serious felonies. This was his third strike. Nat-

urally, the penalty is sharper.”

First lawyer: “The penalty has been enormously enlarged.

The key to constitutional sentencing is proportionality. The

sentence imposed on Crosby is out of all proportion to his

failure to report his change of address. Violent crimes such as

robbery and voluntary manslaughter draw lesser punishment.

4804 CROSBY v. SCHWARTZ

Even rape, the most brutal of sex crimes, would not by itself

draw this kind of penalty. How can it be that an offense which

in itself is passive, which in itself harms no one, will justify

incarceration up to the end of Crosby’s life?”

This hypothetical conversation assumes that governing law

on the subject was established by the United States Supreme

Court, notably in Solem v. Helm, 463 U.S. 277 (1983). The

state of California does not share this view. The state bases its

position on quotations from Ewing v. California, 538 U.S. 11

(2003).

In Ewing, Justice O’Connor delivered what the official

report describes as “an opinion.” It was concurred in by two

members of the Court, Chief Justice Rehnquist and Justice

Kennedy. Justice Scalia and Justice Thomas, who did not find

the Eighth Amendment applicable, concurred in the judgment

reached by the three. Justice Stevens, Justice Souter, Justice

Ginsburg, and Justice Breyer dissented.

In oral argument in the present case, the state of California

asserted that footnote 2 of Justice O’Connor’s three-justice

opinion stated controlling law. I quote from its responses to

questions from our court:

Assistant Attorney General: More importantly, and

frankly, this was a flaw in Gonzalez [v. Duncan, 551

F.3d 875 (9th Cir. 2008)] as well, but this court

doesn’t actually have to decide whether Gonzalez

was wrong, it’s enough that this court recognizes its

job is simply to determine what a state court could

have interpreted Ewing to mean, what any, what

some fairminded jurist could think the case means,

and the problem fundamentally is that over and over,

the emphasis by petitioner is, my offense really

wasn’t that bad. Yeah, it was a felony, but it really

isn’t that bad. The problem, and, going on Gonzalez

v. Duncan the argument that, well, this offense

CROSBY v. SCHWARTZ 4805

doesn’t really show a particular type of recidivism.

None of that matters. Footnote 2 in Ewing v. Califor-

nia says flat-out, “the California legislature therefore

made a deliberate policy decision that the gravity of

the new felony should not be a determinative factor

in triggering the application of the three strikes law.

Neither the Eighth Amendment nor this court’s pre-

cedent forecloses that legislative choice.” In other

words-

The court: Where are you quoting that?

Assistant Attorney General: That is footnote 2 of

Ewing v. California, Your Honor. In other words, a

fairminded jurist could decide that under United

States Supreme Court precedent, it is irrelevant how

the felony looks standing alone. Rather, the very fact

that before you commit that felony, you had at least

two prior serious or violent felonies is enough to

make it grave enough, under the Eighth Amendment,

for a life term. No amount of ignoring that language

is going to work. Gonzalez unfortunately didn’t cite

that language either. Gonzalez spent a lot of time

talking about, you know, this particular offense, and

just ignored the language. I don’t know how -

The court: If Gonzalez had followed that, they

would have come out in favor of the state?

Assistant Attorney General: I’m sorry?

The court: You’re saying if Gonzalez had been cor-

rectly decided, it would have come out in favor of

the state?

Assistant Attorney General: Oh, to be sure, but the

question for you isn’t simply whether Gonzalez is

correct. Rather, it’s wrong, but the question for you

4806 CROSBY v. SCHWARTZ

is, could a state court have reasonably understood

Ewing in a way that makes the offense, here, not so

disproportionate to the punishment. And they could

have, because the state court could have treated that

language seriously in Ewing v. California.

Oral Argument at 12:52-15:46, available at http://

www.ca9.uscourts.gov/media/.

In its brief to us, the state quotes from Justice O’Connor’s

three-justice opinion in Ewing to the effect that it is “enough”

that California had “a reasonable basis for believing” that “a

dramatically enhanced sentence for habitual felons” advanced

the goals of the California justice system (citing Ewing, 538

U.S. at 28, and adding italics to enough and dramatically).

The state’s brief continues with quotation from the three-

justice opinion, again acknowledging that the state is adding

italics: “ ‘Nothing in the Eighth Amendment prohibits Califor-

nia from making [the] choice’ that the way to advance justice

is outright ‘incapacitation’ of the recidivist.” (combining lan-

guage quoted from Ewing at 25 with the state’s argument).

The force of this remarkable contention appears to be that

there is no limit to the punishment that the state may prescribe

for any recidivist. It is hard to believe that the three-justice

opinion was intended to lift all restraint on the state’s reaction

to recidivism. In California’s sweeping gloss, proportionality

in sentencing a recidivist has been eliminated. The repeat

felon, however technical his felony, is to be “incapacitated.”

With a severity worthy of Sparta, the state of California will

bring to book those who thrice fall afoul of any felony provi-

sion in its legislation.

I do not believe that the humane restraint of the Eighth

Amendment has been so removed from its role in measuring

the proportion of the penalty to the offense.

I concur in the remainder of the majority’s opinion. I note

that one standard referenced in it is that of “any fair-minded

CROSBY v. SCHWARTZ 4807

judge.” The standard is similar to the standard of “any reason-

able person.” It is an objective standard. In disagreeing with

a colleague as to whether such a standard is met, a judge is

not impugning the reason or the fairmindedness of the col-

league with whom the judge disagrees because the objective

standard has not been met.