Petition for Writ of Certiorari — Tilton v. Ramirez (No. 05-736)

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On direct appeal to the California Court of Appeal,

Ramirez raised one claim — that the trial court failed to properly

consider all relevant factors when declining to dismiss the prior

strike conviction findings. The California Court of Appeal

rejected Ramirez’s claim and affirmed the judgment, concluding

that the trial court did not abuse its discretion in refusing to

dismiss one or more of the prior strike conviction findings.

App. J at 48-51. Ramirez filed a petition for review, reasserting

the same claim, and the California Supreme Court denied

review without comment or citation.

On April 4, 2000, Ramirez filed in federal court a post-

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA’’) petition for writ of habeas corpus under 28 U.S.C.

§ 2254. The magistrate judge issued a report and

recommendation finding the sole issue raised in the petition,

namely that the trial court abused its discretion and violated due

process when it refused to dismiss one of Ramirez’s prior strike

convictions, did not merit habeas relief. The magistrate judge

concluded that Ramirez’s challenge to the California Court of

Appeal’s application of California sentencing law did not

present a federal question and, even if the claim was cognizable,

the due process objection was without merit because the

California Court of Appeal’s determination that the trial court

did not abuse its discretion when it rejected Ramirez’s request

to dismiss one or more of his prior strike conviction findings,

was neither contrary to nor an unreasonable application of

federal law. App. I at 41-43. Accepting and adopting the

magistrate judge’s findings and recommendations, the district

judge denied Ramirez’s petition for writ of habeas corpus. App.

G at 33; App. H at 34-35. The district judge also denied

Ramirez’s application for a certificate of appealability regarding

the same due process claim. App. F at 31-32.

Ramirez subsequently filed a request with the Ninth Circuit

seeking a certificate of appealability on his due process claim.

App. E at 24-30. On November 13, 2001, the Ninth Circuit

granted a certificate of appealability, but not on the due process

claim that Ramirez presented to the court. App. D at 21. The

Ninth Circuit identified a new, alternative claim under the

Eighth Amendmert that had not been previously asserted by

Ramirez at any time in state or federal court. Specifically, the

Ninth Circuit granted a certificate of appealability on the

following issue:

Does [Ramirez’s] sentence of 25 years to life for

possession of 0.29 grams (less than 0.01023 ounces) of

methamphetamine violate the Eighth Amendment? See

Riggs v. California, 525 U.S. 1114 (1999) (Stevens, J.,

dissenting from denial of certiorari); see also Andrade v.

Attorney General of the State of California, — F.3d —, 2001

WL 1346065 (9th Cir. Nov. 2, 2001).

App. D at 21.

Recognizing there was no evidence that an Eighth

Amendment claim had been exhausted, the Ninth Circuit also

certified the following issue:

Has [Ramirez] exhausted this issue? See Schwartzmiller

v. Gardner, 752 F.2d 1341, 1344 (9th Cir. 1984)

(exhaustion satisfied if claim presented to highesi state

court before this court decides the appeal).

App. D at 22.

After the Ninth Circuit’s issuance of the certificate of

appealability and before briefing was filed on the certified

questions, Ramirez presented an Eighth Amendment claim to

the California Supreme Court in a petition for writ of habeas

corpus. On November 13, 2002, the California Supreme Court

denied the petition for writ of habeas corpus without comment

or citation.

On May 9, 2005, the Ninth Circuit issued an opinion

vacating the district court’s judgment and remanding “to the

district court for consideration of Ramirez’s Eighth Amendment

claim under Reyes v. Brown, 399 F.3d 964 (9th Cir. 2905).”

App. A at 1; App. B at 2-3. In Reyes v. Brown, the Ninth

Circuit had vacated a denial of a habeas petition asserting an

Eighth Amendment claim and remanded to the district court “to

develop the record further” and “to determine in the first

instance” whether Reyes’ Three Strikes sentence violated the

Eighth Amendment in a manner akin to the Ninth Circuit’s

decision in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004).

App. C at 15-16.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari because the Ninth

Circuit has so far departed from the acceptable and usual course

of judicial proceedings as to call for an exercise of this Court’s

supervisory power. Contrary to the decisions of this Court and

three other circuits (Third, Fifth, and Tenth Circuits), the Ninth

Circuit granted a certificate of appealability on a claim that

Ramirez had not raised in his prior state or federal court

proceedings and did not raise in his request for a certificate of

appealability. The Ninth Circuit then vacated the denial of

habeas relief and remanded the matter to the district court for

consideration of this alternative claim, an Eighth Amendment

claim, under Reyes v. Brown, 399 F.3d 964. In doing so, the

Ninth Circuit also opened the door for Ramirez to develop facts

to support this previously unasserted claim even though he had

never attempted to do so in state court. The Ninth Circuit’s

decision violates the fundamental principles of habeas corpus —

finality, comity, and the orderly administration of justice.

This Court’s intervention is warranted and urgently needed

because the Ninth Circuit continues to misunderstand the scope

of its authority on habeas review. The Ninth Circuit’s recent

decisions confirm that the court needs additional guidance

concerning the scope of habeas review. Kane v. Garcia Espitia,

__US._, 1268. Ct. 407 (2005); Schriro v. Smith, US. _,

126 S. Ct. 7 (2005); Mayle v. Felix, U.S. __,125S8.Ct. 2562

(2005); Brown v. Payton, __ U.S. __, 125 S. Ct. 1432 (2005);

Lockyer v. Andrade, 538 U.S. 63 (2003). Therefore, this Court

should grant certiorari to provide additional guidance on the

specific limits of a federal habeas review.

A. The Ninth Circuit Exceeded Its Authority In

Granting A Certificate Of Appealability On An

Issue That Had Not Been Raised In Prior State Or

Federal Court Proceedings

The nght to appeal the dismissal of a habeas corpus

petition after Apri! 24, 1996 (the effective date of AEDPA) is

governed by the requirements found at 28 U.S.C. § 2253(c).

Slack v. McDaniel, 529 U.S. 473, 478 (2000). Consequently,

under AEDPA, a certificate of appealability may not issue

unless “the applicant has made a substantial showing of the

denial of a constitutional nght.” 28 U.S.C. § 2253(c)(2). The

showing required to satisfy 28 U.S.C. § 2253(c) is

straightforward: the habeas petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong. Slack v.

McDaniel, 529 U.S. at 483; see also Miller-El v. Cockreil,

537 U.S. 322, 338 (2003).

By granting Ramirez a certificate of appealability on an

issue that had not been raised in prior state or federal court

proceedings, the Ninth Circuit acted in violation of 28 U.S.C.

§ 2253 and this Court’s decisions. The Ninth Circuit wholly

ignored the requirement that a habeas petitioner make a

substantial showing of the denial of a constitutional right before

a certificate of appealability is issued. Ramirez did not make,

and could not have made, this requisite showing because he did

not assert an Eighth Amendment violation in the state courts or

the district court. In prior state court proceedings and in his

federal habeas corpus petition, Ramirez claimed only that the

trial court failed to consider the proper factors when it denied

his motion to strike one of his prior convictions. App. F at

31-32; App. H at 34-35; App. I at 41-43; App. J at 48-51. In

fact, he did not exhaust the Eighth Amendment claim until well

after the Ninth Circuit granted the certificate of appealability.

Hence, he could not have made the showing that was necessary

for the Ninth Circuit’s issuance of a certificate of appealability

on an Eighth Amendment issue. The Ninth Circuit, in turn,

vacated the judgment of the district court denying Ramirez’s

petition with prejudice and remanded _to litigate the newly-

created Eighth Amendment claim. In effect, the Ninth Circuit

rewrote Ramirez’s habeas petition to include an Eighth

Amendment claim. Once again, the Ninth Circuit has departed

far from the acceptable and usual course of judicial proceedings

and the general practice of federal habeas review. This Court’s

intervention and guidance is highly warranted and urgently

needed.

Furthermore, the Ninth Circuit’s issuance of a certificate

of appealability on an issue that Ramirez had not asserted in his

prior state or federal court proceedings is inconsistent with the

decisions of this Court, other panels of the Ninth Circuit, and

other circuits. Regarding appellate review, this Court has stated

that “[ijt is the general rule . . . that a federal appellate court

does not consider an issue not passed upon below.” Singleton v.

Wulff, 428 U.S. 106, 120 (1976) (citing Hormel v. Helvering,

312 U.S. 552, 556 (1941)); see also Thomas v. Arn, 474 U.S.

140, 148 (1985) (failure to object to magistrate’s report and

recommendation waived the issue on appeal because the

appellate court would be forced to review claims that were

never reviewed by the district court). Other panels of the Ninth

Circuit have similarly determined that a habeas claim which is

not raised in the petition before the district court is not

cognizable on appeal. Belgarde v. Montana, 123 F.3d 1210,

1216 (9th Cir. 1997); Cacoperdo v. Demosthenes, 37 F.3d

504, 507 (9th Cir. 1994). The Third Circuit has also held that

a claim not raised in the district court, even though exhausted,

was not properly before the court on appeal. Carpenter v.

Vaughn, 296 F.3d 138, 148 (3rd Cir. 2002). Likewise, the Fifth

and Tenth Circuits have held that a contention not raised by a

petitioner in district court cannot be considered for the first time

on appeal from that court’s denial of habeas relief. Johnson v.

Puckett, 176 F.3d 809, 814 (Sth Cir. 1999); United States v.

Smith, 915 F.2d 959, 964 (Sth Cir. 1990); Hobbs v. Blackburn,

752 F.2d 1079, 1083 (Sth Cir. 1985), cert. denied, 474 U.S. 838

(1985); see also United States v. Denogean, 79 F.3d 1010,

1012-13 (10th Cir. 1996). The Tenth Circuit has also ruled that

a district court should not assume the role of advocate for a pro

se litigant and may not rewrite a petition *> include claims

which were never presented. Barnett v. Hargett, 174 F.3d 1128,

1133 (10th Cir. 1999); see also Parker v. Champion, 148 F.3d

1219, 1222 (10th Cir. 1998) (an appellate court will not rewrite

a habeas petition to include a claim that was never presented to

the district court). Hence, the Ninth Circuit has made a decision

which conflicts with the decisions of this Court and other

federal courts of appeals on an important matter which

determines the availability of federal habeas corpus review.

Finally, the Ninth Circuit’s decision to grant a certificate

of appealability on a claim that Ramirez had not raised in his

prior state or federal court proceedings and then vacate the

district court’s denial of habeas relief violates the fundamental

habeas corpus principles of comity, finality, and the orderly

administration of justice. In discussing the exhaustion doctrine

as it pertains to habeas matters, this Court has explained that “as

a matter of comity, federal courts should not consider a claim in

a habeas corpus petition until after the state courts have had an

opportunity to act.”” Rose v. Lundy, 455 U.S. 509, 515 (1982);

see also Dretke v. Haley, 541 U.S. 386, 388 (2004) (“Out of

respect for finality, comity, and the orderly administration of

justice, a federal court_will not entertain a procedurally

defaulted constitutional claim in a petition for habeas corpus

absent a showing of cause and prejudice to excuse the

default.”); Woodford v. Garceau, 538 U.S. 206 (2003)

(“Congress enacted AEDPA to reduce delays in the execution

of state and federal criminal sentences, particularly in capital

cases [citations], and ‘to further the principles of comity,

finality, and federalism,’ [citation].”); Carey v. Saffold,

536 U.S. 214, 220 (2002) (“The exhaustion requirement serves

AEDPA’s goal of promoting ‘comity, finality, and federalism,’

[citation], by giving state courts ‘the first opportunity to review

{the} claim,’ and to ‘correct’ any ‘constitutional violation in the

first instance.’”); Williams v. Taylor, 529 U.S. 420, 436

(‘Federal habeas corpus principles must inform and shape the

history and still vital relation of mutual respect and common

purpose existing between the States and the federal courts. In

keeping this delicate balance we have been careful to limit the

scope of federal intrusion into state criminal adjudication and to

safeguard the States’ interest in the integrity of their criminal

and collateral proceedings.”). Recently, this Court found the

Sixth Circuit erred when it relied on grounds that were apparent

from the record but not raised on direct appeal without

determining whether the defendant’s procedural default could

be excused by a showing of cause and prejudice or the need to

avoid a miscarriage of justice. Bradshaw v. Richey, __ US.

__, 2005 WL 3144332 (November 28, 2005); see also United

States v. Frady, 456 U.S. 152, 167-68 (1982) (prisoner who

fails to raise an issue on direct appeal is procedurally barred

from asserting it for the first time on habeas review unless he

can demonstrate cause and actual prejudice).

in granting a certificate of appealability on an issue that

had not been raised by Ramirez in his prior state or federal court

proceedings and then vacating the district court’s denial of

habeas relief, the Ninth Circuit disregarded all notions of

comity, finality, and the orderly administration of justice — the

basic principles of habeas corpus and AEDPA. For these

reasons, a writ of certiorari is warranted.

B. The Ninth Circuit Failed To Adhere To The

Limits Congress Imposed, Through AEDPA, On

Federal Habeas Corpus Review By Allowing A

Habeas Petitioner To Develop Facts To Support A

Claim When The Petitioner Never Attempted To

Develop Those Facts In State Court

The Ninth Circuit vacated the district court’s judgment

denying habeas relief and remanded the case for consideration

of Ramirez’s Eighth Amendment claim under Reyes v. Brown,

399 F.3d 964,” in which the Ninth Circuit ordered the district

court to develop a factual record as to the circumstances

underlying the state prisoner’s prior strike convictions. This

approach directly conflicts with the express provisions of

AEDPA and this Court’s decisions interpreting AEDPA.

28 U.S.C. § 2254(d)(2) provides in relevant part that a

federal habeas court shall not grant a writ on aclaim adjudicated

in state court unless the adjudication was based on an

unreasonable determination of the facts in light of the evidence

presented in state court. 28 U.S.C. § 2254(e)(2) provides that

if a habeas applicant has failed to develop the factual basis of

his claim in state court, the habeas court shall not hold an

evidentiary hearing on the claim unless the applicant shows that

his claim relies on a new rule of constitutional law or a factual

predicate that could not have been previously discovered by

exercising due diligence, and shows that the facts underlying his

claim constitute clear and convincing evidence that but for a

constitutional error, no reasonable fact-finder would have found

him guilty of the underlying offense.

1. The California Attorney General is challenging the Reyes v.

Brown decision in a separate petition for writ of certiorari to be filed with

this Court.

This Court has held that the question of whether a state

court’s decision was unreasonable must be assessed in light of

the record that the state court had before it. Holland v. Jackson,

542 U.S. 649, 652 (2004). This Court has also held that

28 U.S.C. § 2254(e)(2) precludes a federal habeas court from

holding an evidentiary hearing on a claim if the petitioner failed

to develop the factual basis of the claim in state court

proceedings. Williams vy. Taylor, 529 U.S. 420, 430, 432, 435

(2000). Further, this Court has held that a federal habeas court

errs if it relies on evidence not properly presented to a state

court without first determining whether the habeas petitioner

was at fault for failing to develop the factual bases for his claim

in state court or whether the petitioner satisfied the exceptions

set forth in 28 U.S.C. § 2254(e)(2). Bradshaw v. Richey,

546 U.S. __, 2005 WL 3144332.

In the instant matter, the Ninth Circuit vacated the district

court’s judgment denying habeas relief and remanded the case

for consideration of Ramirez’s Eighth Amendment claim under

Reyes v. Brown, 399 F.3d 964. In effect, the Ninth Cir, it

ordered the district court to develop a factua. .ecord as to the

circumstances underlying Ramirez’s prior strike convictions.

The record fails to show, however, that Ramirez ever sought to

develop those facts in any state court proceeding. In fact, the

record shows only that he contended the trial court abused its

discretion in failing to consider all the relevant factors when

deciding whether to dismiss a prior strike conviction. Hence,

Ramirez never developed a factual basis for an Eighth

Amendment claim in state court. Moreover, in order to comply

with the Ninth Circuit’s order, the district court will have to

hold an evidentiary hearing. Thus, the Ninth Circuit’s

disposition essentially orders a hearing without a determination

having been made as to whether Ramirez is at fault for failing

to develop the relevant facts in the first place, or if he can satisfy

one of the exceptions in section 2254(e)(2). Accordingly, the

Ninth Circuit’s decision conflicts with the express provisions of

sections 2254(d)(2) aad (e)(2), as well as this Couri’s relevant

precedent.

This is an important question of federal law, greatly

impacting the criminal justice system tn California. The

practical implication of leaving the Ninth Circuit’s decision

intact is that the Ninth Circuit will continue to order an

evidentiary hearing on the facts underlying pr?.;* convictions

regardless of whether the habeas petitioner raised an Eighth

Amendment challenge. Consequently, many petitioners

collaterally attacking state court judgments may receive

evidentiary hearings to which they are not legally entitled. In

light of its apparent willingness to find exceptionally rare cases

of cruel and unusual punishment, the Ninth Circuit may

continue to use the pending appeals of habeas petitioners with

recidivist sentences to dismantle the law which this Court

believed it set forth in Lockyer v. Andrade, 538 U.S. 63.

Therefore, a writ of certiorari should issue.

C. The Ninth Circuit’s Designation Of An Eighth

Amendment Claim Contravenes This Court’s

Decision In Lockyer v. Andrade

Relying upon its decision in Reyes v. Brown, 399 F.3d 964,

which in turn relied on Ramirez v. Castro, 365 F.3d 755, the

Ninth Circuit has determined that Ramirez can make an Eighth

Amendment challenge against his term of 25 years to life under

California’s Three Strikes Law. App. B at 2-3; App. D at 21.

However, this type of habeas claim is foreclosed by this Court’s

decision in Lockyer v. Andrade, 538 U.S. 63.

In Lockyer v. Andrade, 538 U.S. 63, this Court held that

the state court’s affirmation of Andrade’s two consecutive terms

of 25 years to life in prison was neither contrary to, nor an

unreasonable application of, this Court’s clearly established

Fighth Amendment jurisprudence. /d. at 73-74, 77. In support

of that holding, this Court explained that a gross

disproportionality principle under the Eighth Amendment

applies to a sentence for a term of years, that the principle

reserves a constitutional violation for only the exceedingly rare

and extreme case, and that this Court has not established a clear

path for courts to follow in determining whether a particular

sentence for a term of years violates the Eighth Amendment.

Lockyer v. Andrade, 538 U.S. at 72-73.

In Ramirez v. Castro, 365 F.3d 755, the decision which the

Ninth Circuit relied on in deciding Reyes v. Brown, 399 F.3d

964, the court held a sentence of 25 years to life under

California’s Three Strikes Law for a third shoplifting offense

raised an inference of gross disproportionality when compared

to the gravity of his most recent offense and criminal history.

Ramirez v. Castro, 365 F.3d at 767. As observed in Reyes v.

Brown, the court in Ramirez v. Castro looked past the

definitions of the prior offenses, to the factual specifics of the

crimes, in order to decide whether the sentence was justified by

the prior offenses. Reyes v. Brown, 399 F.3d at 969. In Ramirez

v. Castro, the court minimized the gravity of Ramirez’s prior

crimes, focusing on what the court characterized as the absence

of force in his prior robbery-by-force offenses (one offense

involved Ramirez running over a security guard’s foot and the

other involved him pushing a security guard as he was leaving

a store). Ramirez v. Castro, 365 F.3d at 768-69.

As is plainly evident, the decisions in Reyes v. Brown,

399 F.3d 964, and Ramirez v. Castro, 365 F.3d 755, are driven

by the notion that a federal habeas court’s role is to determine

whether a sentence properly 1mposed under California’s Three

Strikes Law is justified by the gravity of the offense,

considering the nature of the triggering offense as well as the

facts underlying the prior strike offenses. See Reyes v. Brown,

399 F.3d at 971 (Tallman, J., dissenting) (individual judges

chafe at this Court’s decisions in Ewing v. California,

538 U.S. 11 (2003), and Lockyer v. Andrade, 538 U.S. 63).

That notion, however, is based on a fundamental misconception

of this Court’s decision in Lockyer v. Andrade.

The implicit holding in Lockyer v. Andrade, 538 U.S. 63,

is that a federal habeas court cznnot find a state court ruling,

which upholds an Eighth Amendment challenge to a sentence

that is properly imposed under California’s Three Strikes Law,

to be contrary to or an unreasonable application of this Court’s

clearly-established precedent. This is so for a simple reason.

Assuming the prior strikes were the most minor of the serious

or violent felonies enumerated in the law (Cal. Penal Code

§§ 667.5(c) and 1192.7(c)), and assuming the triggering offense

was one of the least serious felonies under California’s Penal

Code, it would mean that the priors were at least residential

burglaries and the triggering offense was petty theft with a prior

theft-related offense. However, that is the precise scenario

considered by this Court in Lockyer v. Andrade. Nevertheless,

despite the fact that in Lockyer v. Andrade there was the

additional aggravating factor of two triggering offenses which

resulted in consecutive sentences or 50 years to life, this Court

held that the state court decision, which relied on Rummel v.

Estelle, 445 U.S. 263 (1980), was neither contrary to, nor an

unreasonable application of, this Court’s controlling precedent.

In other words, if Lockyer v. Andrade, 538 U.S. 63, did not

involve an unreasonable application of this Court’s precedent,

then no state-court analysis of a sentence that comports with

California’s Three Strikes Law could be contrary to, or involve

an objectively unreasonable application of, this Court’s Eighth

Amendment jurisprudence. This would be true even if the

federal court conducted a de novo review due to a state court

making factual mistakes in its analysis. The federal court would

still be bound to analyze the result. Any holding to the contrary

would constitute a dismantling of Lockyer v. Andrade. Stated

differently, if, in the course of considering an Eighth

Amendment challenge to a sentence properly imposed under

California’s Three Strikes Law, a federal court were to consider

the circumstances of a prior strike, the court would necessarily

be reduced to acting in equity, i.c., making an independent

determination as to the nghtness of the sentence, rather than

acting as a habeas court, i.e., determining whether the state court

analysis failed to comply with tixis Court’s precedents.

Furthermore, there is no Supreme Court authority allowing

a habeas court to look past a state’s definition of crimes, to

determine whether they involved violence or not, in order to

evaluate the seriousness of prior strike convictions. To the

extent that the Ninth Circuit in Reyes v. Brown, 399 F.3d 964,

found authority to do so in Solem v. Helm, 463 U.S. 277, the

court is incorrect. Solem v. Helm held nothing of the sort. All

Solem v. Helm did was look to the state’s definition of the

elements of the prior offenses. Such an approach is also

arguably inconsistent with Rummel v. Estelle, 445 U.S. at

271-72, 284-85, where this Court explained that the strength of

a state’s interest in dealing with criminal recidivists is not

necessarily affected by the presence or absence of violence

during the commission of offenses.

Additionally, to the extent that the Ninth Circuit’s opinion

in Reyes v. Brown, 399 F.3d 964, can be traced to this Court’s

decision in Ewing v. California, 538 U.S. 11, via the Ninth

Circuit’s opinion in Ramirez v. Castro, 365 F.3d 755, any

reliance on Ewing v. California is misplaced. Ewing v.

California involved a grant of certioran following direct appeal.

Thus, in Ewing v. California, this Court considered the pure

Eighth Amendment question of whether Ewing’s sentence

constituted cruel and unusual punishment, and no deference was

owed to any state court decision. In contrast, the instant case ts

a matter of habeas review. Accordingly, Lockyer v. Andrade,

538 U.S. 63, not Ewing v. California, controls. Further, Ewing

v. California was a plurality decision of three Justices, with two

others joining only the judgment — one on the grounds that the

Eighth Amendment only concerns modes of punishment, and

the other on the grounds that the Eighth Amendment does not

contain a proportionality principle. Consequently, Ewing v.

California has little, if any, precedential value regarding the

federal habeas corpus review of an Eighth Amendment

challenge to a sentence under California’s Three Strikes Law.

This is a matter of great importance to the criminal justice

system in California. As previously discussed, Lockyer v.

Andrade, 538 U.S. 63, expressly held that an Eighth

Amendment challenge to a recidivist sentence would be viable

only in an exceedingly rare case, and implicitly eld that a state

court analysis ofa sentence properly imposed under California’s

Three Strikes Law could not be contrary to, or involve an

unreasonable application of, this Court’s Eighth Amendment

jurisprudence. Nevertheless, in the two years since this Court

issued its decision in Lockyer v. Andrade, the Ninth Circuit has

identified three cases which it feels potentially qualify as

exceedingly rare, 1.e., Reyes v. Brown, 399 F.3d 964, Ramirez

v. Castro, 365 F.3d 755, and the instant case. The Ninth

Circuit’s willingness to find so many exceedingly rare cascs in

such a short period of time clearly reveals that some judges of

the Ninth Circuit either choose not to apply Lockyer v. Andrade

or misunderstand that decision.

In short, it appears that the Ninth Circuit failed to be

guided by the criteria presented in this Court’s most recent

opinion concerning habeas review of Eighth Amendment

challenges in California. Thus, the Ninth Circuit has decided an

important question of federal law in a way that conflicts with

relevant decisions of this Court. If left unchecked, the decision

in the instant matter will encourage unprincipled federal habeas

review of numerous sentences in California. If the state’s

independent power to articulate societal norms through its

criminal law is to be respected, more consideration must be

shown than is apparent in the Ninth Circuit’s decision.

Therefore, a writ of certiorari should issue.

CONCLUSION

For the aforementioned reasons, the petition for writ of

certiorari should be granted.

Dated: December 5, 2005

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

Wh Ae

QUISTEEN S. SHUM

Deputy Attorney General

Counsel of Record

Counsel for Petitioner

SD2001FA0074

QSS:nes

APPENDIX A

[Filed May 13, 2005]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND RAMIREZ, No. 01-55624

Petitioner-Appellant, |} D.C. No. CV-00-00195-

VAP

Vv.

oe JUDGMENT

CAL TERHUNE, Director of California

Department of Corrections; et al.,

Respondent-Appellices.

Appeal from the United States District Court for the

Central District of California, Riverside.

This cause came on to be heard on the Transcript of the

Record from the United States District Court for the Central

District of California, Riverside and was duly submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgment of the said District

Court in this cause be, and hereby is VACATED and

REMANDED.

Filed and entered Friday, May 13, 2005

APPENDIX B

[Decided May 13, 2005]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND RAMIREZ, No. 01-55624

Petitioner-Appellant,

V. D.C. No.

CV-00-00195-VAP

CAL TERHUNE, Director of California

Department of Corrections; et al., OPINION

Respondent-Appellees.

Appeal from the United States District Court

for the Central Distnct of California

Virginia A. Phillips, District Judge Presiding

Submitted May 9, 2005*

Decided May 13, 2005.

Before: Harry Pregerson, William C. Canby and

Sidney R. Thomas, Circuit Judges

* This panel unanimously finds this case suitable for decision

without oral argurnent. See Fed. R.App. P. 34(a)(2).

MEMORANDUM**

Raymond Ramirez appeals the district court’s judgment

denying his 28 U.S.C. § 2254 habeas petition, which challenged

his sentence under California’s three-strikes law for possession

of methamphetamine. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we vacate and remand.

This court granted a Certificate of Appealability on the

issue of whether Ramirez’s 25-years-to-life sentence for

possession of 0.29 grams of methamphetamine constitutes cruel

and unusual punishment under the Eighth Amendment. We

vacate the district court's judgment and remand to the district

court for consideration of Ramirez’s Eighth Amendment claim

under Reyes v. Brown, 399 F.3d 964 (9th Cir.2005).

VACATED and REMANDED.

**This disposition is not appropriate for publication and may

not be cited to or by the courts of this circuit except as provided

by Ninth Circuit Rule 36-3.

APPENDIX C

(Filed March 4, 2005]

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTOS L. REYES, No. 01-57130

Petitioner-Appellant,

v. D.C. No.

CV-00-00608-VAP

JILL BROWN,* Warden

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge Presiding

Argued and Submitted

March 7, 2002 - Pasadena, California

Submission Withdrawn April 2, 2002

Resubmitted April 17, 2003

Filed March 4, 2005**

Before: Harry Pregerson, Raymond C. Fisher and

Richard C. Tallman, Circuit Judges

Opinion by Judge Pregerson;

Dissent by Judge Tallman

* Jill Brown is substituted for J.S. Woodford, her predecessor as

Warden of San Quentin State Prison. See Fed. R.App. P. 43(c){2).

**This case was originally the subject of a-memorandum disposition

filed December 29, 2003. See Reyes v. Woodford, 83 Fed. Appx. 985 (9th

Cir.2003). On January 12, 2004, Reyes filed a petition for panel rehearing

and rehearing en banc. In an order filed contemporaneously with this

opinion, we grant the pctition for panel rehearing; withdraw the December

29, 2003, memorandum disposition; and deny the petition for rehearing

en banc as moot.

SUMMARY

Criminal Law and Procedure/Sentencing

The court of appeals vacated a judgment of the district

court. The court held that a 26-year "Three Strikes" sentence for

being convicted of perjury for making misrepresentations on a

driver’s license application might present the "exceedingly rare"

case in which an Eighth Amendment challenge could be viable.

After unsuccessfully pursuing state relief, appellant

California state prisoner Santos Reyes brought a 28 U.S.C.

§ 2254 habeas action in federal district court challenging his

sentence of 26 years to life under California’s Three Strikes

law. Reyes’ third strike was a perjury conviction for making

misrepresentations on a California Department of Motor

Vehicles (DMV) driver’s license application. Reyes contended

that his punishment violated the Eighth Amendment’s

prohibition on cruel and unusual puniShment. Reyes’ first strike

was a conviction for a residential burglary he committed when

he was 17 years old; he was sentenced to two years at the

California Youth Authority and was paroled after one year.

Reyes’ second strike was a 1987 conviction for armed robbery

for which he was sentenced to nine years, five of which he

served; the record did not reveal the circumstances under which

this felony was committed. The district court denied Reyes’

habeas petition.

Reyes appealed.

[1] Applying the Antiterrorism and Effective Death

Penalty Act in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004),

the Ninth Circuit recognized that Eighth Amendment challenges

to Three Strikes sentences remain viable in certain "exceedingly

rare" cases. [2] In Ramirez, the Ninth Circuit concluded that

Ramirez’ sentence did not match the gravity of the triggering

offense, given that his most recent offense consisted of the

nonviolent shoplifting of a VCR. The Ninth Circuit’s reasoning

that Ramirez’ conduct did not threaten grave harm to society

applied here, where Reyes’ act of falsifying a driver’s license

application was not a crime targeted at another individual.

[3] As to Reyes’ first strike, Reyes’ age and the fact that

the offense appeared to be nonviolent weighed against finding

this to have been a grave offense sufficient to justify his 26

years to life sentence. [4] The sticking point came from Reyes’

1987 conviction for armed robbery. [5] Unfortunately, the

circumstances under which Reyes committed the robbery were

not sufficiently developed in the record for a determination of

whether the offense was a crime against a person or involved

violence. Moreover, given that Reyes’ first strike was earned as

a juvenile, the gravity of his offenses in total rested heavily on

his 1987 armed robbery conviction. More facts would help

determine the true weight of the offense. Accordingly, the

district court’s denial of Reyes’ habeas petition had to be

vacated and the case had to be remanded for the district court to

develop the record further and to determine in the first instance

whether Reyes was entitled to relief under Ramirez.

Judge Tallman dissented, writing that Reyes did not

present an "extraordinary" rare case; he was a Career criminal

for whom there was no need for an evidentiary hearing.

COUNSEL

Gretchen Fusilier, Carlsbad, California, for the petitioner-

appellant.

David Delgado-Rucci, Deputy Attorney General, San Diego,

California, for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

California state prisoner Santos L. Reyes brought this 28

U.S.C. § 2254 habeas action challenging his sentence under

California’s “Three Strikes” law. Reyes was convicted of

perjury for making misrepresentations on a California

Department of Motor Vehicles (“DMV”) driver’s license

application. The perjury conviction was Reyes’ third strike. He

was sentenced to twenty-six years to life. Reyes contends that

his punishment violates the Eighth Amendment’s prohibition on

cruel and unusual punishment. The district court denied Reyes’

habeas petition. Because we conclude that the facts necessary

to evaluate Reyes’ petition were not sufficiently developed

before the district court--and, therefore, are not sufficiently

developed in the record before us--we vacate the district court’s

denial of Reyes’ petition and remand to the district court for

further proceedings.

On September 18, 1997, Reyes entered the DMV on

Waterman Avenue in San Bernardino, California. He

purportedly filled out an application for a driver’s license under

the name of his cousin, Miguel Soto, who purportedly knew

how to drive but not how to read. Reyes signed the application,

which purportedly stated that the information was being

provided under penalty of perjury.” After Reyes signed the

1. The parties dispute whether the application Reyes signed

was in English or Spanish and whether it stated that the

information being provided was under penalty of perjury. For

example, the State maintains that Reyes "filled out an English

language application .... which stated the information was being

provided under penalty of perjury." See Appellee’s Br. at 4-5,

application, DMV employee Debra Alexander gave Reyes two

copies of the written driver’s license test. Alexander suspected

that Reyes was cheating on the exam by using a “crib sheet.”

She confiscated the two tests from Reyes and began filling out

paperwork related to Reyes’ alleged cheating. Meanwhile,

Reyes left the DMV building.

Alexander contacted California Highway Patrol Officer

Jose Lopez, who was stationed at the DMV. Officer Lopez

followed Reyes, who was walking away. After catching up

with Reyes, Officer Lopez patted-down Reyes and handcuffed

him. Reyes cooperated with Officer Lopez and voluntarily

admitted that he had attempted to take the written driver’s

license test for Soto. The encounter was without violence.

On March 2, 1998, Reyes was arraigned on an Amended

Information, charging him with one count of perjury in

violation of California Penal Code § 118. Reyes qualified for

the Three Strikes enhancement because of two prior

convictions: one as a juvenile in 1981 for residential burglary

in violation of California Penal Code § 459; and one in 1987

for armed robbery in violation of California Penal Code § 211.

The State offered Reyes a deal of four years imprisonment

in exchange for a guilty plea to the perjury charge, but Reyes

rejected the plea deal and exercised his constitutional nght to a

jury trial. On March 5, 1998, a jury convicted Reyes of the

available at 2001 WL 34355184. In contrast, Reyes maintains

that the application "was in Spanish," that he "did not know that

he was signing under penalty of perjury,” that he "did not know

what ‘perjury’ meant," and that "nothing on" the Spanish

application says "‘I have read and understood the above.’" See

Appellant’s Opening Br. at 5-6, 8, available at 2001 WL

34355185. We need not resolve this dispute because it is not

germane to our resolution of the instant appeal.

perjury charge and found the Three Strikes special allegations

true. On April 2, 1998, the trial court sentenced Reyes to an

indeterminate term of twenty-six years to life.

Reyes appealed the judgment, claiming, among other

things, that his sentence violated the Eighth Amendment’s

prohibition on cruel and unusual punishment. On June 9, 1999,

the California Court of Appeal affirmed Reyes’ conviction and

sentence. On September 1, 1999, the California Supreme Court

denied Reyes’ petition for review.

On July 26, 2000, Reyes filed a 28 U.S.C. § 2254 habeas

petition in the United States District Court for the Central

District of California. On September 21, 2000, Magistrate

Judge Charles F. Eick issued a report and recommendation

urging that Reyes’ petition be dismissed with prejudice. On

October 12, 2000, District Judge Virginia Phillips adopted the

report and recommendation and dismissed Reyes’ petition.

On October 31, 2000, Reyes timely filed a notice of appeal

and a request for certificate of appealability. On May 2, 2001,

we granted Reyes a certificate of appealability on the limited

issue whether his Three Strikes sentence violated the Eighth

Amendment.”

We review de novo a district court’s decision to grant or

deny a 28 U.S.C. § 2254 habeas petition. See Rios v. Garcia,

390 F.3d 1082, 1084 (9th Cir.2004). The provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub L. No. 104-132, 110 Stat. 1214, govern

2. Reyes subsequently filed two requests to broaden the

certificate of appealability. We deny those requests in a

separate unpublished order filed contemporaneously with this

opinion.

Reyes’ habeas petition. Under AEDPA, habeas relief is proper

if the state court’s adjudication of the merits of the habeas claim

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.’” Rios,

390 F.3d at 1084 (quoting 28 U.S.C. § 2254(d)). “A state

court’s decision is ‘contrary to’ clearly established federal law

if it ‘applies a rule that contradicts the governing law set forth

in [Supreme Court] cases[,]’ or (2) ‘confronts a set of facts that

are materially indistinguishable from a [Supreme Court]

decision and nevertheless arrives at a [different] result.’”’ Jd.

(quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000)). “A state court’s decision is an

unreasonable application of clearly established federal law if

‘the state court identifies the correct governing legal principle

from [Supreme Court] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.’” /d. (quoting

Williams, 529 U.S. at 413, 120 S.Ct. 1495). ©

iil.

[1] Applying AEDPA in Ramirez v. Castro, 365 F.3d 755

(9th Cir.2004), we recognized that Eighth Amendment

challenges to Three Strikes sentences remain viable in certain

“exceedingly rare” cases. Jd. at 756, 770; see also id. at 763

(noting that the Eighth Amendment’s “‘proportionality

principle’ ... is applicable ‘only in the “exceedingly rare” and

“extreme” case’”’ (quoting Lockyer v. Andrade, 538 U.S. 63, 72-

73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003))).* We applied the

3. We note that the California Attorney General declined to

seck further review of our decision in Ramirez, stating that he

was acting in "the interest of justice” and calling Ramirez an

"exceedingly rare case." Henry Weinstein, Lockyer Gives Up

Three-Strikes Case, L.A. TIMES, Apr. 30, 2004, at B6,

available at 2004 WL 55909787.

Supreme Court’s analysis in Solem v. Helm, 463 U.S. 277, 103

S.Ct. 3001, 77 L.Ed.2d 637 (1983), to examine as an initial

matter “whether [*he petitioner’s] extreme sentence is justified

by the gravity of his most recent offense and criminal history.”

Ramirez, 365 F.3d at 768 (holding that this inquiry gives rise to

an inference of gross disproportionality, which then calls for

intrajurisdictional and interjurisdictional analyses).

{2] We concluded that Ramirez’ sentence did not match

the gravity of the triggering offense, given that his most recent

offense consisted of the nonviolent shoplifting of a VCR. See

id. Our reasoning that Ramirez’ conduct did not “threaten{ } ...

grave harm to society” applies here, id. (quoting Harmelin vy.

Michigan, 501 U.S. 957, 1003, 111 S.Ct. 2680, 115 L.Ed.2d

836 (1991) (Kennedy, J., concurring)), where Reyes’ act of

falsifying a driver’s license application was not a crime targeted

at another individual.*

4. Signing someone else’s name on a driver’s license

application is specifically proscribed by the California

legislature as a misdemeanor. See Cal. Veh.Code § 20 ("It is

unlawful to use a false or fictitious name, or to knowingly

conceal any material fact in any document filed with the

[DMV}."); id. § 40000.5 (classifying a Vehicle Code § 20

violation as a misdemeanor). The offense does not, however,

preclude prosecution of the defendant under Penal Code § 118

for felony perjury, instead of the misdemeanor Vehicle Code

section that more accurately proscribed Reyes’ conduct, see

People v. Molina, 5 Cal.App.4th 221, 231, 6 Cal.Rptr.2d 736

(1992) (holding that "Vehicle Code section 20 does not preclude

perjury prosecutions for those filing false license applications

under oath at the DMV"), and in this case, Reyes was convicted

after trial of felony perjury. The fact that the Califormia

legislature deemed making false statements on a driver's license

application to be a misdemeanor reflects that Reyes’ offense "Is

viewed by society as among the less serious offenses.” Solem,

We next considered Ramirez’ criminal history to

determine whether the extreme sentence matched his prior

offenses. See id. at 768-769. Ramirez had been twice

convicted of “second-degree robbery, i.e., willfully and

unlawfully taking personal property ‘by means of force and

fear’ in violation of California Penal Code §§ 211, 212.5(c), and

213({a)(2), a ‘serious felony’ under § 1192.7(c)(19).” Jd. at 757.

The first strike involved shoplifting from a grocery store, after

which a get-away car driven by a third person ran over the store

security guard’s foot. See id. at 757, 768. In the second

offense, Ramirez pushed a security guard away with his open

hand as he ran out of K-Mart with stolen goods. See id. at 757,

768. Ramirez was found to have committed these offenses with

“force” and was prosecuted for and convicted of “second-

degree robbery,” as opposed to “petty theft” (Cal.Penal Code §§

484, 488) or “second-degree commercial robbery” (Cal.Penal

Code §§ 459-61) because of the physical contact with the

security guards. /d. ai 768. Ramirez served very little time in

prison for these two offenses. See id. at 769.

[3] In the instant case, Reyes earned his first strike for

residential burglary, in violation of California Penal Code §

459, when he was seventeen years old. He was sentenced to

two years at the California Youth Authority and was paroled

after one year. Reyes’ age and the fact that the offense appeared

to be nonviolent? —— for which he was only required to serve

two years at California Youth Authority — weigh against

finding this to be a “grave” offense sufficient to justify his

twenty-six years to life sentence.

463 U.S. at 296, 103 S.Ct. 3001 (internal quotations omitted).

5. The little detail in the record suggests that Reyes was "at

some guy’s house with some frends and ... walked out with a

radio that di in’t belong to" him. 3/4/98 Trial Tr. at 120:8-9.

[4] The sticking point in this case comes from Reyes’ 1987

conviction for armed robbery in violation of California Penal

Code § 211. He was sentenced to nine years of which he served

five.* The record does not reveal the circumstances under

which this felony was committed.” This conviction represents

6. Reyes also has a history of "non-strike" offenses including

petty theft; being under the influence of a controlled substance;

misdemeanor DUI; and misdemeanor battery. None of these

offenses appear to have involved violence, and unlike the

criminal histories of the defendant in Ewing v. California, 538

U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), and the

petitioner in Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d

144, Reyes’ criminal history became indisputably less serious

over time, see Ramirez, 365 F.3d at 765-767 (describing

Ewing’s and Andrade’s criminal histories).

7. The paucity of detail in the record indicates that this offense

may have been non-violent. Compare 3/4/98 Trial Tr. at

120:17-24 (suggesting that Reyes "was stealing"--“not robbing"

but "had a knife" on his person), with Rios, 390 F.3d at 1086

(distinguishing Ramirez because, during the commission of his

triggering offense, "Rios struggled with the loss prevention

officer and tried to avoid apprehension" and, during his prior

robbery "strikes," Rios’ “cohort used a knife" (emphasis

added)).

The dissent argues that we are being unfaithful to

Ramirez because Ramirez "focuses on the presence of a

weapon, not whether, how, or where it was or was not used"

and "Reyes ... himself, carried the weapon." Dissent at 971 n. 1

(emphasis in original). With respect to our able colleague, we

believe that he is misreading Ramirez. Ramirez never refers to

"the presence of a weapon." Rather, each time Ramirez refers

to weapons, it refers exclusively to whether weapons were

"involved." 365 F.3d at 757, 768, 775; see also Rios, 390 F.3d

a point of departure from Ramirez, given the nature of the

offense and the nine-year prison term to which Reyes was

sentenced.

However, in Ramirez, even though the defendant was

convicted of two “serious felonies,” we considered the factual

specifics of Ramirez’ conduct. Ramirez, 365 F.3d at 767

(looking past the definitions of the crimes of which Ramirez

was convicted to determine whether Ramirez’ conduct involved

violence or was particularly serious}. Although Ramirez was

twice convicted of robbery “by force,” we minimized the

at 1086 (noting that Ramirez’ "prior convictions were for non-

violent robberies in which no weapons were involved"

(emphasis added)). We understand Ramirez’ use of the word

"involved" to mean “engaged or employed." Webster’s

Encyclopedic Unabridged Dictionary of the English Language

1005 (rev. ed.1996) (defining "involve" as "to engage or

employ"). Surely, involving, engaging, or employing a weapon

constitutes more than the mere presence of an unused weapon.

The dissent also asserts that "Rios arguably weighs in

favor of finding Reyes’ punishment justified” because "in Rics

... Rios’ cohort used a weapon," whereas here "Reyes ... himself,

carried the weapon." Dissent at 971 n. | (emphasis added). We

think our colleague misses the point. /f Reyes (or an

accomplice, if any) actually used a k..ife in the commission of

his 1987 robbery, "an inference of gross disproportionality"

would not be raised because it is the use of a weapon that

"“threaten[s] to cause grave harm.’" Ramirez, 365 F.3d at 765,

768 (quoting Harmelin, 501 U.S. at 1002, 111 S.Ct. 2680

(Kennedy, J., concurring)). Would our dissenting colleague

hold that a shoplifter caught with a small pocket-knife in his

pocket necessarily committed a violent crime? In this case, the

record is entirely unclear as to whether the conduct underlying

Reyes’ 1987 conviction involved anything more.

gravity of the offenses by noting that in the first strike offense

a third person had run over the security guard’s foot, resulting

in a “minor injury.” Jd. And in the second strike offense,

Ramirez pushed away the security guard with his hand on his

way out the door. See id.

In Solem, the Supreme Court found an Eighth Amendment

violation where the habeas petitioner was sentenced to life

without parole for “uttering” a false check under a recidivist

statute. 463 U.S. at 279-80, 103 S.Ct. 3001. He had a history of

six nonvioleni felonies, including three separate third-degree

burglaries, obtaining money under false pretenses, grand

larceny, and driving while intoxicated. See id. In considering

the gravity of his offenses, the Court noted that “nonviolent

crimes are less serious than crimes marked by violence or the

threat of violence.” /d. at 292-93, 103 S.Ct. 3001. The Court

concluded that “his prior offenses, although classified as

felonies, were all relatively minor. All were nonviolent and

none was a crime against a person.” Id. at 296-97, 103 S.Ct.

3001 (emphasis added).”

[5] In the instant case, but for Reyes’ armed robbery

8. The dissent labels Reyes a "career criminal” whose

"criminal history reflects the very type and degree of recidivism

the Supreme Court recognizes Three Strikes laws were properly

intended to address." Dissent at 971 (citing Rummel v. Estelle,

445 U.S. 263, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)).

But Reyes is no more a career criminal than the petitioner in

Solem, who the Supreme Court held was entitled to habeas

relief under the Eighth Amendment. Compare Dissent at 971

(noting that, between 1981 and 1997, Reyes committed six

crimes) with Solem, 463 U.S. at 279-80, 103 S.Ct. 3001

(discussing Solem’s six convictions for third-degree burglary,

obtaining money under false pretenses, grand larceny, and

driving while intoxicated).

conviction, Reyes would appear to have a plausible case for

relief under Ramirez.” Unfortunately, the circumstances under

which Reyes committed the robbery are not sufficiently

developed in the record for us to determine whether the offense

was a “crime against a person” or involved violence. Moreover,

given that Reyes’ first strike was earned as a juvenile, the

gravity of his offenses in total rests heavily on his 1987 armed

robbery conviction. More facts, such as those on which we

relied in Ramirez, would help determine the true weight of the

offense beyond the label of the crime (“armed robbery”) of

which Reyes was convicted. Accordingly, we vacate the district

court’s denial of Reyes’ habeas petition and remand for the

district court to develop the record further and to determine in

the first instance whether Reyes is entitled to relief under

Ramirez.

The panel shall retain jurisdiction over this matter.

VACATED and REMANDED.

TALLMAN, Circuit Judge, dissenting:

In Ewing and Andrade, the United States Supreme Court

found that California Three Strikes sentences at issue did not

9. Our suspicion that Reyes’ twenty-six years to life sentence

may be grossly disproportionate to the gravity of his triggering

offense and criminal history is also supported by the fact that

the State offered Reyes a deal of four years imprisonment in

exchange for a guilty plea to the triggering perjury charge. By

offering Reyes such a heavily discounted sentence, an inference

may properly be raised that the State did not view Reyes as a

"danger to socicty" and that the State did not fecl "the need to

counter his threat with incapacitation." Andrade, 538 U.S. at

81, 123 S.Ct. 1166 (Souter, J., dissenting).

violate the Eighth Amendment prohibition on cruel and unusual

punishment. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166,

155 L.Ed.2d 144 (2003), Ewing v. California, 538 U.S. 11, 123

S.Ct. 1179, 155 L.Ed.2d 108 (2003). In its opinions, the Court

allowed for the remote possioility of finding a statutory

punishment unconstitutional when it is “grossly

disproportionate.” Andrade, 538 U.S. at 73, 123 S.Ct. 1166;

see also Ewing, 538 U.S. at 23, 123 S.Ct. 1179 (noting that the

Eighth Amendment contains a narrow “proportionality principle

that applies to noncapital sentences”) (internal quotations and

citations omitted). The Court did not elaborate what types of

violations this exception might encompass, but warned that “‘it

is applicable ‘only in the exceedingly rare and extreme case.’”

Ramirez v. Castro, 365 F.3d 755, 763 (9th Cir.2004)

(discussing Andrade, 538 U.S. at 72-73, 123 S.Ct. 1166). This

is not one of them.

After the Court’s decisions in Ewing and Andrade, the

Ninth Circuit quickly found such an exceedingly rare case in

Ramirez. Although Ramirez is now the law of the circuit for

habeas challenges to Three Strikes sentences, its analysis is less

than ideal. The Ramirez opinion sets forth what ts, at best, a

nebulous balancing test for analyzing whether a lengthy Three

Strikes sentence violates the proportionality principle: whether

the sentence is “justified by the gravity of [the petitioner’s]

most recent offense and criminal history.” Ramirez, 365 F.3d

at 768; see also Ewing, 538 U.S. at 29, 123 S.Ct. 1179 (noting

that, when considering the gravity of the offense, the court

“must place on the scales not only his current felony,” but also

his criminal history).

In determining the gravity of the triggering offense and

criminal history, Ramirez instructs courts to examine the “core

conduct” of the crimes and consider: (1) whether the crime

involved the use of force; (2) whether weapons were present;!’

(3) whether the crime was violent in nature; and (4) the length

and type of sentence imposed. See Ramirez, 365 F.3d at 768-69

(discussing the factors of Ramirez’s triggering offense and

criminal history that were relevant in determining whether the

sentence was justified).

The court here declares that Reyes potentially presents

another one of these exceptionally rare cases, and that an

evidentiary hearing is required in order to determine whether

1. The panel majority attempts to distinguish Reyes from Rios

v. Garcia, 390 F.3d 1082 (9th Cir.2004), by focusing on the fact

that Rios’ cohort used a weapon. This sort of parsing is

unpersuasive in distinguishing the two cases and also illustrates

the difficulties of following precedent such as Ramirez. First,

as unworkable as Ramirez is, it focuses on the presence of a

weapon, not whether, how, or where it was or was not used.

Second, even Rios arguably weighs in favor of finding Reyes’

punishment justified; in Rios, the court found his punishment

justified simply because Rios’ cohort had a weapon. Reyes has

no such excuse because he, himself, carried the weapon.

Finally, Rios and the majority opinion here foreteil what is to

come in the wake of Ramirez: inconsistent outcomes in cases

depending on whether individual panels choose to focus on the

presence versus the use versus the involvement of a weapon.

Surely the Eighth Amendment analysis must rely on more

substantive distinctions. All three cases err in ignoring the key

point that the Three Strikes Statute punishes recidivism, not

subtle differences between the nature of the triggering offense

or prior offenses.

2. Ramirez did not explicitly list a set of factors to consider

when making this inquiry, nor did it explicitly state that this was

a balancing test, leaving future panels with the unfortunate task

of gleaning clear guidelines from the opinion.

Reyes’ punishment violated the proportionality principle.

Based on Supreme Court and Ninth Circuit precedent, |

disagree with both of these propositions. However much

individual judges chafe at the Supreme Court’s decisions in

Ewing and Andrade or the electorate’s continuing and clear

expression of support for tough treatment of repeat offenders,

our obligation its to apply the law which the Supreme Court

upheld in Andrade and Ewing.

Reyes does not present an “extraordinary” rare case; he is

a career criminal. Between 1981 and 1997, he committed six

crimes and spent almost seven years behind bars, five of which

were passed in state prison. His criminal history reflects the

very type and degree of recidivism the Supreme Court

recognizes Three Strikes laws were properly intended to

address. Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct.

1133, 63 L.Ed.2d 382 (1980) (rejecting an Eighth Amendment

challenge to Texas’ recidivist statute). Furthermore, even if a

narrow class of cases exist that might constitute an unusual

exception, Ramirez’s criminal history pales in comparison to

Reyes’ sixteen years of on-again, off-again criminality. I would

not characterize the nature of Reyes’ prior convictions as

charitably as does the majority, particularly where Reyes has

been convicted of battery, armed robbery, and driving while

under the influence, all of which pose a potential of seriously

injuring other people.

There is no need for an evidentiary hearing. While the

Ramirez balancing test is admittedly vague, at least two of the

four factors that the Ramirez court considered relevant weigh

heavily in favor of finding Reyes’ sentence justified. First,

Reyes was convicted of armed robbery; contrary to the pane!

majority’s inferences, this strike certainly involves at least the

presence of a weapon during the commission ofa violent cnme.

Second, Reyes served five years of a nine-year state prison

sentence for his armed robbery conviction. Not only is this a

lengthy sentence, but Ramirez explicitly noted that a critical

consideration in determining whether a sentence is

proportionate is whether the petitioner has ever “been sentenced

to [or] served any time in state prison prior to committing” the

triggering offense. Ramirez, 365 F.3d at 769 (emphasis added).

These facts strongly distinguish Reyes’ case from Ramirez and

justify the Three Strikes sentence imposed.

It is unclear what sorts of facts the court here anticipates

will be revealed during the evidentiary hearing, or what

difference they will make in the proportionality inquiry. It is

also unclear what facts the district court on habeas review is

permitted to revisit in its “core conduct” inquiry in the face of

a final state criminal judgment that Reyes committed a robbery

while armed. Because Ramirez sets forth a balancing test, the

district court must simply determine that, in consideration of the

four factors, and particularly his pattern of continuing criminal

behavior, Reyes’ prior time spent in state prison and his earlier

conviction for armed robbery render his Three Strikes sentence

for perjury justified under controlling Supreme Court precedent.

There is no need for an evidentiary hearing to reach that

conclusion on the record already before us.

I would deny Reyes’ petition for rehearing and petition for

rehearing en banc. Accordingly, I DISSENT from this futile

remand.

APPENDIX D

[Filed November 12, 2001 |

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND RAMIREZ, No. 01-55624

Petitioner, D.C. No. CV-00-00195-

Ve VAP

CAL TERHUNE, Director of California

Department of Corrections; BILL

LOCKYER, Attorney General, State of

California.,

ORDER

Respondents.

Before: KLEINFELD and McKEOWN, Circuit Judges

We grant a certificate of appealability on the following arguable

issues:

1. Does Petitioner’s sentence of 25 years to life for

possession of 0.29 grams (less than 0.01023 ounces) of

methamphetamine violate the Eighth Amendment? See Riggs

v. California, 525 U.S. 1114 (1999) (Stevens, J., dissenting

from denial of certiorari); see also Andrade vy. Attorney General

of the State of California, - F.3d -, 2001 WL 1346065 (9th Cir.

Nov. 2, 2001).

2. Has Petitioner exhausted this issue? See

Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir. 1984)

(exhaustion satisfied if claim presented to highest state court

before this court decides the appeal).

A review of this court’s docket reflects that the filing and

docketing fees for this appeal remain due. Within 14 days after

the date this order is filed, Petitioner shall either (1) pay to the

district court the $105.00 filing and docketing fees for this

appeal and file in this court proof of such payment, or (2) file in

this court a motion to proceed in forma pauperis. Failure to pay

the fees or file a motion to proceed in forma pauperis may result

in automatic dismissal of the appeal by the Clerk for failure to

prosecute. See 9th Cir. R. 42- 1.

Appointment of counsel would benefit the court’s review.

Counsel will be appointed by separate order. The Clerk shall

serve a copy of this order on Maria Stratton, Federal Public

Defender, 321 East Second Street, Los Angeles, CA 90012-

4206 (FAX 213-894-0081), who will locate appointed counsel.

The district court shall provide the Clerk of this court with the

name and address of appointed counsel within 14 days of

locating counsel.

If Petitioner objects to the appointment of counsel in this

appeal, Petitioner shall file a written objection in this court

within 14 days of the date this order is filed.

Appellant’s opening brief is due January 8,2002.

Appellee’s brief is due February 12,2002. The optional reply

brief, if any, is due within 14 days from service of the

answering brief.

APPENDIX E

[Received May 14, 2001]

Raymond Ramirez

3C03-224 Low

P. O. Box 3471

Corcoran, CA 93212-3471

CDC# E-23847

IN PRO SE

IN THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

RAYMOND RAMIREZ ) No. 01-55624

Petitioner-Appellant, )

) APPLICATION FOR

VS. } CERTIFICATE OF

) APPEALABILITY:

CAL TERHUNE, ) MEMORANDUM OF

Respondent-Appellee. ) POINTS AND AUTHORITIES

)

TO THE HONORABLE JUDGES OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT:

The petition of Raymond Ramirez respectfully shows:

1. That Petitioner made application the the Honorable

Virginia A. Phillips, Judge of the United States District Court

fcr the Central District of California, on April 4, 2000, for a

writ of habeas corpus, a copy of which application is attached _

as EXHIBIT A, and incorporated by reference into this petition.

2. Judge Virginia A. Phillips adopted the Report And

Recommendations of the Honorable Ann I. Jones, United States

Magistrate Judge, dismissing with prejudice Petitioner’s

application for writ of habeas corpus by an order/judgment

dated January 24, 2001. A copy of those docur.-2nts are attached

as EXHIBIT B.

3. Petitioner filed a notice of appeal with accompanying

application for certicicate of appealability in the same court on

February 15, 2001. A copy of those documents are attached as

EXHIBIT C.

4. The detention complained of by Petitioner in his

application for a writ of habeas corpus arose out of a state court

conviction. Petitioner was convicted of one count of possissing

less than .30 gram of methamphetamine and one count of being

under the influence of methamphetamine in the Superior Court

of California and was sentenced to a term of imprisonment of

25 years to life pursuant to California’s “Three Strikes Law,”

because of Petitioner’s having previously suffered two “serious

felony” convictions.

5. Judge Virginia A. Phillips denied Petitioner’s request

for a Certificate of Appealability for the reasons stated in her

order dated April 4, 2001. A copy of that order is attached as

EXHIBIT D.

6. Under Federal Rules of Appeal 22(b) (as amended,

1996), it is necessary for a Certificate Of Appealability to be

issued, issue specific, before petitioner may proceed tn this

court from the denial of his application for a writ of habeas

corpus.

7. In addition to the reasons stated in Petitioner’s

application for a writ of habeas corpus, a Certificate Of

Appealability should be issued because in a case such as this,

where a possible life sentence is in the balance, would due

process and justice be served, by a determination that effects the

sentence, made without equal weighing of all relevant and

manditory factors?

WHEREFORE, Petitioner respectfully requests that a

Certificate Of Appealability be issued on the question stated

above, whether the claim presented in Petitioner’s application

for a writ of habeas corpus, constituted denial of a

fendamentally fair hearing and his right to due process of law?

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

OF APPLICATION FOR CERTIFICATE OF APPEALABILITY

INTRODUCTION

Petitioner/Appellant (“Petitioner”) filed federal habeas

petition in the district court alleging that he was denied

constitutional due process to a fundamentally fair hearing in a

case where a life sentence of imprisonment hung in the balance,

whcre the state court revicwing his motion to dismiss one or

more of his prior felony conviction, for sentencing purposes,

and which could result in a reduced sentence, or possibaly less

than life, the court in weighing factors as basis of its decision,

failed to consider or weigh equally, all relevant and mandated

factors. (See EXHIBIT A.)

Petitioner’s habeas petition was denied along with

application to the same district court for a certificate of

appealability, stating that the habeas petition failed to state a

federal claim and the trial court’s refusal to strike a prior

conviction did not violate due process. (See EXHIBIT D.)

Petitioner submitts to this court that the primary issue

presented first to the state courts and again to the district court

was not whether, the state court abused its discretion in denying

Petitioner’s motion to strike a prior conviction, but instead,

whether Petitioner was denied a fundamentally fair hearing and

thereby constitutional due process, when the state court failed

to weigh all and/or equally, mandated factors in arriving at that

decision. (See EXHIBIT(S) A through d.)

Standard of Review

A certificate Of Appealability (“COA”) is required for a

state prisoner seeking to appeal the district court’s denial of

relief in a habeas corpus proceeding under Title 28 U.S .C.

section 2254. (Title 28 U.S.C. section 2253 (c)(I)(A) and (B);

Federal Rules of Appeal 22(b).)

A COA may be issued only upon a “substantial showing

of the denial of a constitutional nght.) (sec. 2253(c)(2). )

A “substantial showing” is a showing that “jurists of

reason would find it dabatable whether the petition should have

been resolved in a different manner” or that the issue presented

were “adequate to deserve encouragement to proceed further.”

(Slact v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1599

(2000).)

Where a petition is dismissed on a procedural ground there

must be two determinations made, “one directed at the

underlying constitutional claim and one directed at the district

court’s procedural holding.” (Slact v. McDaniel, 120 S.Ct.

at,1600-01.)

A petitioner must show, “at least, that jurists of reason

would find it debatable whether the petition states a valid claim

of denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.” Id.

In determining whether a petitioner has “factually alleged

the denial of a constitutional right,” this court has held, it need

“simply take a ‘quick look’ at the face of the complaint.

(Petrocelli v. Angelone, 242 F.3d 867 (9th Cir. 2000).)

Federal courts may grant relief in a state prisoner’s habeas,

proceedings on the grounds, that petitioner’s confinement

violates the Constitution, law, or treaties of the United States.

(Titie 28 U.S.C. section 2254(a).)

A violation of state law is cognizable in federal court if the

violation is of constitutional magnitude. (Bonin v. Calderon,

77 F.3d 1155, 1159 (9th Cir.1996); Estelle v. McGuire,

502 U.S. 62, 67-68 (1991).)

State proceedings are cognizable if they result in

fundamental unfairness and consequently violated petitioner’s

Fourteenth Amendment right to due process. (Henery v.

Kernan, 177 F.3d 1152, 1159 (9th. Cir. 1999); Brecht v.

Abrahamson, 507 U.S. 619 (1993).)

Discussion

Here, through Petitioner’s habeas petition, his traverse to

Respondent’s Return, his objections to the Honorable

Magistrate Judge’s Report and Recommendation, his prior

application for a Certificate Of Appealability to the district

court, and all points and authorities and exhibits thereto,

Petitioner has successfully made the required showing that: (1),

because the claim presented in his state court proceedings, that

the relevant state court failed to apply mandated process in

arriving at its decision to deny Petitioner’s motion to “strike”

his prior convictions for sentencing purposes, and thereby

making the proceedings unreliable and fundamentally unfair

violating his Fourteenth Amendment right to due process, did

not receive the required “adjudication on the merits” that would

preclude relief in this court pursuant to section 2254(d); (2),

Petitioner’s habeas petition “factually” alleges “the denial of a

constitutional right” cognizable in this court (Petrocelli v.

Angelone, 242 F.3d 867, 873-74 (9th Cir. 2001)); (3), “jurists

of reason would find it debatable whether the district court was

correct in its procedural ruling (Petrocelli v. Angelone, supra,

242 F.3d at 873), and; (4), “jurists of reason would find it

debatable” whether the process by which the state court arrived

at its decision to deny Petitioner’s relevant motion was reliable

and constituted a fundamentally fair proceeding pursuant to

mandates of the Fourteenth Amendment. (Slack v. McDaniel,

529 U.S. 473, 120 S.Ct. 1595, 1600-04; see also Brecht v.

Abrahamson, 507 U.S.619.)

CONCLUSION

For the foregoing reasons this court should issue a

Certificate Ff Appealability.

Dated: __5-9-01 Respectfully submitted

/s/

Raymond Ramirez

Petitioner-Appellant

IN PRO SE

APPENDIX F

[Filed April 4, 2001]

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

RAYMOND RAMIREZ ) No. EDCV 00-0195 VAP (AIJ)

)

Petitioner, )

) ORDER DENYING

v. ) CERTIFICATE OF

) APPEALABILITY

CAL TERHUNE, Director )

California Department of )

Corrections, )

)

Respondent.

On February 15, 2001, petitioner Raymond Ramirez

filed a Notice of Appeal and an Application: for Certificate of

Appealability. Petitioner seeks to appeal the district court’s

order dismissing his writ of habeas corpus with prejudice

entered on-January 24, 2001. The district court referred the

matter to Magistrate Judge Ann I. Jones for further proceedings.

Under the Antiterrorism and Effective Death Penalty Act

of 1996, a certificate of appealability is a prerequisite to

appellate review of a district court’s judgment dismissing a

habeas petition brought under section 2254. 28 U.S.C.

§ 2253(c)(1)(A) (as amended). A certificate of appealability

may issue only if the applicant has made a substantial showing

of the denial of a constitutional nght. 28 U.S.C. § 2253(c)(2);

Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.) , cert. denied,

517 U.S. 1183 (1996). The “substantial showing" test requires

that a petitioner demonstrate that reasonable jurists could debate

whether the petition should have been resolved in a different

manner, or that the issues presented were adequate to deserve

encouragement to proceed further. See Slack v. McDaniel,

529 U.S. 473, 120 S. Ct. 1595, 1600 (2000).

This court dismissed the instant petition without prejudice

because it failed to state a federal claim and because the tnal

court’s refusal to strike a prior conviction did not violate due

process. This decision is not one on which reasonable jurists

could debate, nor are the issues adequate to proceed further.

Accordingly, the certificate of appealability shall not issue.

IT IS SO ORDERED.

DATED: _ April 3, 2001

/s/

VIRGINIA A. PHILLIPS

UNITED STATES DISTRICT JUDGE

Presented this 30th day of

March 2001, by:

/s/

ANN I. JONES

APPENDIX G

[Filed January 24, 2001]

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

RAYMOND RAMIREZ No. EDCV 00-0195 VAP (ALJ)

Petitioner,

JUDGMENT

vV.

CAL TERHUNE, Director

California Department of

Corrections,

Respondent.

ee a a

Pursuant to the Order Adopting Findings, Conclusions,

and Recommendations of United States Magistrate Judge,

IT IS HEREBY ADJUDGED that the Petition for Writ of

Habeas Corpus is dismissed with prejudice.

DATED: _January 19, 2001

/s/

VIRGINIA A. PHILLIPS

UNITED STATES DISTRICT JUDGE

APPENDIX H

[Filed January 24, 2001]

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

RAYMOND RAMIREZ ) No. EDCV 00-0195 VAP (ALJ)

)

Petitioner, )

) ORDER ADOPTING

v. ) FINDINGS, CONCLUSIONS

) AND RECOMMENDATIONS

CAL TERHUNE, Director ) OF UNITED STATES

California Department of ) MAGISTRATE JUDGE

Corrections, )

)

Respondent. )

)

Pursuant to 28 U.S.C. § 636, the court has reviewed the

Petition for Wnt of Habeas Corpus, all of the records herein, the

attached Report and Recommendation of United States

Magistrate Judge and the objections to the Report and

Recommendation which have been filed herein. The court

concurs with and adopts the findings and conclusions of the

Magistrate Judge after having made a de novo determination of

the portions to which objections were directed.

IT IS ORDERED that Judgment be entered dismissing this

action with prejudice.

IT IS FURTHER ORDERED that the clerk shall serve

copies of this Order, the Magistrate Judge’s Report and

Recommendation, and the Judgment herein by United States

mail on petitioner and counsel for respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY

DATED: _ January 19, 2001

/s/

VIRGINIA A. PHILLIPS

UNITED STATES DISTRICT JUDGE

APPENDIX I

[Filed December 27, 2000]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

RAYMOND RAMIREZ No. EDCV 00-0195 VAP (ALJ)

Petitioner,

REPORT AND

RECOMMENDATION OF

UNITED STATES

MAGISTRATE JUDGE

CAL TERHUNE,

ee ee ee

Respondent.

This Report and Recommendation is submitted to the

Honorable Virginia A. Phillips, United States District Judge,

pursuant to 28 U.S.C. § 636 and General Order 194 of the

United States District Court for the Central District of

California.

PROCEEDINGS

Petitioner filed a “Petition for Writ of Habeas Corpus by

a Person in State Custody” ("Petition") on April 4, 2000. Cal

Terhune, Director of the California Department of Corrections

("Respondent"), filed a return on September 11, 2000.

Petitioner filed a traverse on Septemiber 28, 2000. The matter is

now deemed submitted and ready for decision.

BACKGROUND

A brief summary of facts is sufficient for this review,

Around 9:00 p.m. on September 30, 1995, petitioner arrived at

the Western Inn in Ontario, California. (Respondent’s

Lodgement No. 6 at 2). Petitioner briefly walked into the lobby

of the motel, and left. (Id. at 2-3). Petitioner then walked to a

telephone booth, and then began walking down the sidewalk.

(Id. at 3 ). Two officers on bicycles approached petitioner while

he walked and asked to speak with him. (Id.) One of the officers

observed that petitioner’s speech was rapid, his eyes were

dilated and his lips were dry and caked. (Id.) Believing that

petitioner was under the influence of a controlled substance, the

officer asked if petitioner had used any speed or cocaine. (Id.)

Petitioner admitted that he had used methamphetamine within

the last few hours. (Id.)

The officers arrested petitioner for being under the

influence of a controfied substance. (Id.) During a pat-down

search, officers discovered in his pants pocket a plastic baggie

containing .29 grams of amphetamine. (Id.) Later blood tests

revealed the presence of both amphetamine and

methamphetamine. (Id.) This result was consistent with

petitioner's admission to having consumed methamphetamine

within hours of being stopped. (Id.)

On November 1, 1995, petitioner was charged in count one

with felony possession of methamphetamine and in count two

of being under the influence of methamphetamine.

(Respondent’s Lodgement No. 3 at 2; Respondent’s Lodgement

No. 4 at 1). The information also alleged that petitioner had

suffered two prior strike convictions within the meaning of

California’s "Three Strikes Law."”’ (Id.)

On March 20, 1996, a jury found petitioner guilty on both

counts and determined the allegations concerning petitioner’s

prior strike convictions to be true. (Respondent’s Lodgement

No. 3 at 2-3; Respondent's Lodgement No. 4 at 1-2). On May

15, 1996, the trial court sentenced petitioner to state prison for

twenty-five years to life on count one, and to 152 days in county

jail on count two. (Respondent’s Lodgement No. 3 at 3).

In an unpublished opinion filed on July 30, 1997, the

California Court of Appeal affirmed the conviction, but

reversed the sentence based on the trial court’s erroneous belief

that it did not have the discretion to dismiss a strike on its own

initiative. (Respondent’s Lodgement No. 4 at 2). The Court of

Appeal remanded the case for resentencing. (Id.)

On December 19, 1997, the trial court denied petitioner’s

motion to strike the priors and re-sentenced petitioner to

twenty-five years to life on count one, and to 1 52 days in county

jail on count two. (Respondent’s Lodgement No. 4 at 2).

1. California Penal Code sections 667 (b)-(i), 1170.12 (a)-(d).

In an unpublished opinion filed on July 30, 1997, the

California Court of Appeal affirmed the conviction.

(Respondent’s Lodgement No. 6). The California Supreme

Court denied the petition for review on September 22, 1999,

(Respondent’s Lodgement No. 8.)

STANDARD OF REVIEW

A petition for writ of habeas corpus may only be granted

to one who is "in custody in violation of the Constitution ér

laws or treaties of the United States." 28 U.S.C. §§ 2241, 2254.

State law errors are not cognizable on federal habeas corpus.

Estelle v. McGuire, 502 U.S. 62, 67, 112 S . Ct. 475, 480

(1991); Pulley v. Harris, 465 U.S. 37, 41, 1048S. Ct. 871, 874

(1984).

In addition, the Antiterrorism and Effective .Death Penalty

Act ("“AEDPA") imposes new requirements for the granting of

habeas relief:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a state court

shall not be granted with the respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim - (1) resulted in a decision

2. Because the petition was filed after April 24, 1996, the

AEDPA’s effective date, it is subject to the AEDPA’s

provisions. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.

2059, 2068 (1997).

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) (1997) (as amended) ("section 2254(d)").

A state court decision is “contrary to" Supreme Court

precedent if the state court applies a rule that contradicts the

governing law set forth in U.S. Supreme Court cases or

confronts a set of facts that are materially indistinguishable

from a decision of the Supreme Court and nevertheless arrives

at a result different from Supreme Court precedent. Williams v.

Taylor, US. ,110S. Ct. 1495, 1523 (2000).

A state court decision makes an unreasonable application

of Supreme Court precedent if it identifies the correct governing

legal rule from Supreme Court cases but unreasonably applies

it to the facts of the particular state prisoner’s case or either

unreasonably extends a legal principle from the Court’s

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply. Williams, 120 S. Ct. at 1523. The Ninth

Circuit has held that, under Williams, “in order for a state

court’s application of federal law to be unreasonable, it must

have been clearly erroneous." Van Tran v. Lindsey, 212 F.3d

1143, 1149 (9th Cir. 2000), pet. for cert. filed, 69 U.S.L.W.

3156 (Aug. 11, 2000); see also Weighall v. Middle, 215 F.3d

1058 (9th Cir. 2000).

DISCUSSION

I. The Sole Issue Raised in this Petition Does Not

Habeas Relief.

Petitioner alleges that the trial court abused its discretion

and violated due process when it refused to dismiss one of his

prier "three strike” convictions. (Petition 4 10(a) at 6).

Petftioner specifically complains that the trial judge failed to

“properly consider all of the relevant factors" when considering

whether to dismiss a strike prior under Cal. Penal Code § 1385

and People v. Superior Court (Romero), 13 Cal.4th 497 (1966).

(Petition, 6(a)).

Petitioner’s challenge to the state court’s application of

California sentencing law does not present a federal question.

Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1993)

(failure by state court to fulfill statutory mandate regarding

sentencing not cognizable in federal habeas proceeding), cert.

denied sub nom. Campbell v. Wood, 510 U.S. 1215 (1994); see

also Cacoperdo v. Demontheses, 37 F.3d 504, 507 (9th Cir.

1994), cert. denied, 514 U.S. 1026 (1995). Nor is the California

Court of Appeal’s refusal to reverse petitioner’s sentence

reviewable in federal habeas. Hendricks v. Zenon, 993 F.2d

664, 674 (9th Cir. 1993).

Further, even if petitioner’s claim were cognizable,

petitioner’s due process objection is without merit. The

California Court of Appeal, after reviewing the transcript of

petitioner’s re-sentencing hearing, concluded that the trial court

had not abused its discretion in refusing to dismiss petitioner’s

prior strike conviction findings. (Respondent’s Lodgement No.

6 at 4). Specifically, the Court of Appeal noted that the trial

court properly considered the factors pursuant to Cal. Penal

Code section 1385.” (Id. at 4, 6). Specifically , the trial court

acknowledged the relatively minor character of the present

offense, heard argument regarding the probation officer’s

recommendation to dismiss one of the strikes, considered the

facts and circumstances of the prior strike convictions,

including two recent: first degree burglary convictions, which

were extremely serious offenses, and examined petitioner’s

entire background, including his continuous criminal conduct

since 1994, his limited time out of custody, and his poor

3. In deciding whether to strike a prior conviction finding, the

trial court must consider "whether, in light of the nature and

circumstances of the present felonies and prior serious and/or

violent felony convictions," and the particulars of the

defendant’s “background, character and prospects,". the

defendant should be treated as though he had not been

previously convicted. And, the court "must set forth its reasons,"

for so finding. Id. (Respondent’s Lodgement No. 6 at 4-5 (citing

People v. Williams, 17 Cal. 4th 148, 161 (1998))).

prospects for rehabilitation and the likelihood of future criminal

behavior. (Id. at 5-6; Respondent's Lodgement No. 2 at 2-7;

Respondent’s Lodgement No. 3 at 2-7).

As found by the California Court of Appeal, the trial court

did not abuse its discretion when it rejected petitioner’s request

to dismiss one or more of his prior strike conviction findings.

(Id.) This conclusion is neither contrary to, nor an unreasonable

application of, federal law. See Richmond vy. Lewis, 506 U.S.

40, 50, 113 S. Ct. 528, 536 (1992) (state violates duc process

only if a sentencing error has taken place, and that error is so

arbitrary and capricious as to rise to a level of fundamental

unfairness); cf. Spencer v. Texas, 385 U.S. 554, 565-66, 87 S.

Ct. 648, 654-55 (1967) (due process docs not prevent states

from enacting habitual offender statutes and from admitting

evidence during trial tending to prove allegations required under

statutory schemc). As there was no sentencing error in this case,

petitioner’s claim of a due process violation must fail.

RECOMMENDATION

For all of the foregoing reasons, IT [IS RECOMMENDED

that the court issue an Order: (1) approving and adopting this

Report and Recommendation; and (2) directing that Judgment

be entered dismissing the action with prejudice.

DATED: December 26, 2000.

/s/

ANN L. JONES

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the

Court of Appeals, but may be subject to the nght of any party

to file objections as provided in the Local Rules Governing the

Duties of Magistrate Judges and review by the District Judge

whose initials appear in the docket number. No notice of appeal

pursuant to the Federal Rules of Appellate Procedure should be

filed until entry of the judgment of the District Court.

APPENDIX J

[Filed July 16, 1999]

NOT FOR PUBLICATION

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

THE PEOPLE, a pt | £022593

Plaintiff and sel nears (Super.Ct.No.FWV08445)

Vv.

RAYMOND RAMIREZ, OFiNION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino

County. Jeffrey King, Judge. Affirmed.

Robert L. Swain, under appointment by the Court of

Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert Anderson, Acting

Chief Assistant Attorney General, Gary W. Schons, Senior

Assistant Attorney General, Robert M. Foster, Supervising

Deputy Attorney General, and Susan E. Miller, Deputy Attorney

General, for Plaintiff and Respondent.

A jury fownd defendant guilty of possession of

methamphetamine in count | (Health & Saf. Code, § 11377,

subd. (a)) and of being under the influence of methamphetamine

in count 2 (Health & Saf. Code, § 11550, subd. (a)). The jury

additionally found true the allegations that defendant had been

convicted of two prior serious or violent felonies. (Pen. Code,

§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)}’ The court

sentenced defendant to 152 days in county jail for count 2 with

credit for time served, and to the indeterminate term of 25 years

to life for count 1. Defendant appealed, and the court affirmed

the conviction but remanded the case for the court to exercise

its discretion under Romero.” We take judicial notice of the

record in that appeal, E018425.

The court held a hearing to determine whether it should

dismiss one or more of defendant’s prior strike conviction

findings. After the hearing, the court declined to dismiss any

strikes and resentenced defendant to 25 years to life for count

1. On appeal, defendant contends that the court abused its

discretion by failing to properly consider all of the relevant

factors. We determine that the court considered all relevant

factors and did not abuse its discretion.

FACTS

Officers Michael Bors and Douglas Reed of the Ontario

City Police Department were on bicycle patrol on September

1. All further statutory references will be to the Penal Code

unless otherwise indicated.

2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

30, 1995. At about 8:57 p.m., Officer Bors saw a red Camaro

drive into the parking :ot of the Western Inn in Ontario.

Defendant got out of the car and walked into the lobby of the

hotel. After 30 seconds, defendant left the hotel and walked to

a telephone booth. After he left the phone booth, defendant

began walking on the sidewalk.

The officers rode their bicycles toward defendant and

asked him whether he would be willing to speak to them.

Defendant stated he would not mind talking to them. While

speaking with defendant, Officer Bors noted that defendant’s

speech was rapid, his pupils were dilated and his lips were dry

and caked. The officer believed defendant might be under the

influence of a controlled substance and asked defendant if he

had used any speed or cocaine. Defendant replied that he had

used methamphetamine within the last couple of hours.

The officers arrested defendant for being under the

influence of a controlled substance. During a pat-down search

pursuant to the arrest, officers discovered a plastic baggie

containing .29 grams of amphctamine in defendant’s pants

pocket.

A sample of defendant’s blood revealed the presence of

both amphetamine and methamphetamine. The blood sample

and defendant’s symptoms were consistent with defendant’s

statement that he had consumed methamphetamine about two

hours before he was stopped.

DISCUSSION

Dismissal of Strike

Defendant contends that the court failed to properly

consider all the relevant factors when deciding whether to

dismiss the prior strike findings. When this court received the

record in this case, it became apparent upon reading the

reporter’s transcript that a part of the hearing on the request to

dismiss the strike had occurred in the morning and had not been

transcribed as a part of the record on appeal. This court

informally contacted the superior court clerk and requested that

the transcript be sent to both appellate defense counsel and the

Attorney General was well as this court. We additionally had to

request that the supplemental probation officer’s report, which

is part of the normal record on appeal, be transmitted to this

court. Now that the record is complete, it is apparent that the

court considered all relevant factors.

Defendant contends that the trial court did not consider the

minor character of his present offense, which was the

possession of a small amount of amphetamine. That offense is

a wobbler. Defendant argues that the court focused only on his

past record and did not consider the supplemental probation

officer’s report which recommended striking one of the prior

convictions.

“{I]n ruling whether to strike or vacate a prior serious

and/or violent felony conviction allegation or finding under the

Three Strikes law, cn its own motion, ‘in furtherance of justice’

pursuant to Penal Code section 1385(a), or in reviewing such a

ruling, the court in question must consider whether, in light of

the nature and circumstances of his present felonies and prior

serious and/or violent felony convictions, and the particulars of

his background, character, and prospects, the defendant may be

deemed outside the scheme’s spirit, in whole or in part, and

hence should be treated as though he had not previously been

convicted of one or more serious and/or violent felonies. If it is

striking or vacating an allegation or finding, it must set forth its

reasons in an order entered on the minutes, and if it is reviewing

the striking or vacating of such allegation or finding, it must

pass on the reasons so set forth.” (People v. Williams (1998)

17 Cal.4th 148, 161.)

We review the court’s decision for an abise of discretion.

(People v. Myers (1999) 69 Cal.App.4th 305, 309.) Defendant

must demonstrate that the court’s exercise of discretion was

irrational or arbitrary. We affirm if the court considered the

relevant factors and exercised its discretion within the spirit of

the law. (/d., at pp. 309-310.)

During the hearing, the court noted the minor character of

the present offense, which is a wobbler. The court also

remarked that there was no violence involved in the present

offense. The defense attorney argued that the supplemental

probation officer’s report recommended that the court dismiss

one of the strikes. Thus, the court was aware of the report, and

we may presume the court considered it. (People v. Myers,

supra, 69 Cal.App.4th at p. 310.)

The court looked at the facts and circumstances of the

prior strike convictions as well. The court commented that

defendant had two recent first degree burglary convictions, and

a prior drug-related felony conviction. The court commented

that first degree burglaries are extremely serious offenses and

noted that all of defendant’s other offenses were minor drug-

related convictions. The court then asked for the facts of the

prior burglaries in order to more closely determine defendant’s

background and history. The court learned that one of the

burglaries involved an indecent exposure.

Additionally, the court examined defendant’s background,

which included the fact that defendant has engaged in

continuous criminal conduct since 1984 and has spent limited

time cut of custody. He was on parole at the time he committed

the present offense.

The court examined defemdant’s character including the

fact that defendant was a recidivist offender who had committed

two burglaries, one of which involved indecent exposure, and

who was achronic drug abuser. Defendant did not avoid

violating the law even when on parole.

Finally, defendant’ prospects are poor. His continual drug

abuse has led in the past, and most likely will lead in the future,

to repeated crimes such as the burglaries. The court noted that

it was denying the request to dismiss the strikes in order to

protect society, deter others from committing crimes and to

prevent defendant from committing new crimes.

It therefore appears that the court examined all of the

relevant factors in determining not to dismiss one or more of the

prior strike conviction findings. Although the current offense

was minor and did not involved violence, defendant’s prior

offenses, his background, his character and his prospects weigh

against the dismissal of a prior strike conviction. Defendant

may not be deemed outside the spirit of the three strikes law.

The court did not abuse its discretion in refusing to dismiss one

or more of the prior strike conviction findings.

DISPOSITION

The judgment is affirmed.

NOT FOR PUBLICATION

/s/ Ramirez

We concur:

/s/ McKinster

/s/ Ward

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.