*1 mandate, modify holders moved to the re- (1)
questing that the prohibit mandate: ANDRADE, Leandro Petitioner- stays further of execution of affirmed the Appellant, (2) part judgment; of the specify pre-judg- ment occurring prior interest as to the date of original the district court’s judg- ATTORNEY GENERAL OF THE 23, 1999,
ment on June and post-judgment CALIFORNIA; STATE OF Ernest B. date; occurring interest as after that and Roe, Warden, Respondents-Appellees. (3) appellees authorize to draw on a Letter posted security Credit for collection No. 99-55691. judgment. alternative, of the appel- the lees request modify that we the mandate United States Appeals, Court of (1) to: allow the pre-judgment interest Ninth Circuit. apply rate to until the date of the final (2) remand; disposition on prohibit any Argued and May Submitted stays further of execution the after re- Filed Nov. calculated; (3) mand is amount and autho- drawing rize on the Letter of Credit as of date the remand.
After consideration of appellees’ motion mandate,
to modify grant we the mo-
tion in part. hereby We order that the part
affirmed judgment of the final and subject
therefore to immediate execution. R.App. 37(b),1
Pursuant to Fed. P. we clar-
ify that affirmed part judgment subject to pre-judgment prior to interest
the date of the original district court’s
decision on June subject
post-judgment interest thereafter.
We reserve the discretion of the dis- (1)
trict court the determination of:
amount of price-per-share reflecting the (the
minority discount erroneously taken (2)
remand portion judgment); pre-
date from which and post-judgment
interest is to be calculated on the remand
portion judgment; authori-
zation to draw on the Letter of Credit.
It is so ordered. 37(b) court, R.App. 1. Fed. P. states that: "If the in the district the mandate con- must judgment court modifies or reverses a with a tain about the instructions allowance inter- money judgment direction that a be entered est." *3 SCHROEDER, Judge, Chief
Before:
PAEZ,
Judges.
Circuit
and SNEED
PAEZ; Concurring
Judge
Opinion by
Judge SNEED
Opinion by
Dissenting
PAEZ,
Judge:
Circuit
convict-
Leandro Andrade
Appellant
of California
Superior Court
ed in the
*4
shoplifting a
theft for
petty
counts of
two K-Mart
videotapes from
total of nine
such
generally treats
stores. California
misdemeanors,
punishable
each
as
offenses
county jail
up
and
months
by up to six
However,
An-
$1,000
because
fíne.
to a
of several
had
convicted
drade
been
non-violent—his
thefts
offenses—all
under Cali-
first
to felonies
were
enhanced
§
and then en-
Code
fornia Penal
fourth
to third
strikes
again
hanced
and
Strikes
and
under California’s Three
Law,
Penal Code
Out
California
You’re
(“the
1170.12
Three Strikes
§§ 667 and
law”).
Andrade,
result,
a non-violent
As a
merchan-
shoplifted
twice
recidivist who
$153.54,
received life
worth total of
dise
possibility of
with no
sentence
years.
from
denial
his
appeal
In this
§
28 U.S.C.
petition under
habeas
violates
argues
University
Chemerinsky,
Erwin
prohibition
Eighth Amendment’s
School, Los An-
Law
Southern California
punishment.
and unusual
against cruel
California,
petitioner-appel-
for the
geles,
Su-
States
justices
Four
United
lant.
“unique
agreed
have
preme Court
Foster,
Attorney
Deputy
M.
Robert
Strikes law
Three
quirk”
California’s
Danzig, Deputy
P.
General,
Douglas
conduct
be
permits
misdemeanor
California,
General,
Diego,
San
Attorney
sen-
severe
punished with
indeterminate
respondents-appellees.
for the
Amend-
a substantial
tences raises
California,
Riggs
question.
ment
L.Ed.2d
(memorandum
opinion
Justice
Stevens,
joined by
Souter and
Justices
peti-
Ginsburg, respecting the denial
certiorari).1
tion for writ of
defined
in California
Penal Code
1192.7(c)
667.5(c)
§
respectively,
hold that
We
California Court of
qualify
as
strikes. Cal.Penal Code
Appeal unreasonably applied clearly estab-
667(d)(1), 1170.12(b)(1).
§§
The “trigger
lished United States Supreme
pre-
(i.e.,
ing”
principal) offense, however, may
held,
cedent when it
on Andrade’s direct
any felony
under California law. Cerv
appeal, that his sentence did not violate
era,
103 Cal.Rptr.2d
The purpose of the law is
impose
to
provision
“third-strike”
longer terms of
mandates a sen-
imprisonment on defen-
prior
years
(i.e.,
dants with
tence of
least 25
to
qualifying felony convic-
life
an
tions
“strikes.” Id. at 179. Under the
indeterminate life sentence
eligibility
with
law, only
felonies,
“serious” or “violent”
parole
as
for
serving
after
no fewer than 25
Riggs
Eighth
substantial,
concerned an
''obviously
Amendment
particularly since Cali-
challenge by a recidivist defendant
appears
only
sentenced
fornia
to be the
State in which a
years
stealing
to 25
to life after
a bottle of
misdemeanor could receive
a
such severe sen-
supermarket.
Nevertheless,
vitamins from a
tence.” Id.
he concluded that
Riggs
years).
must serve consecutive
occasions
ferent
1170.12(c)(2)(A).
667(c)(6),
§§
Code
Cal.Penal
sentences.
trigger
to the fact
In addition
1170.12(a)(6);
40 Cal.
Ingram,
People
“vio
“serious” or
felony
not be
ing
need
(Ct.
Cal.Rptr.2d
App.4th
lent,”
of California’s
other features
several
(“Since
felony, count
each
App.1995)
it par
to make
law combine
Three Strikes
currently stands convict
defendant
which
First,
may
a defendant
ticularly severe.
burgla
separate residential
from
ed arises
strikes
to have
be considered
of 25
ries,
mandatory minimum term
qual
both
though he
convicted
even
imposed consecutive
must be
years to life
judicial proceed
single
in a
ifying offenses
...
term
count,
a minimum
ly
each
Cal.App.4th
Askey,
ing. People
other
years.”), disapproved
of 50
782, 785
Cal.Rptr.2d
(Ct.App.1996).
Dotson, 16 Cal.4th
People v.
grounds by
not be violent
Second,
need
prior strikes
P.2d
Cal.Rptr.2d
they
“seri
long
qualify
as
as
offenses
(1997).
Finally,
defendant sentenced
burglary where
(e.g., a residential
ous”
not be
life sentence will
an indeterminate
were
and residents
burglar was unarmed
until he has served
eligible
be considered a
would
not home
Cerv
mandatory minimum term.
entire
1192.7(c)(18),
strike).
§§
Code
Cal.Penal
at 181
era,
16 P.3d
Cal.Rptr.2d
460(a). Third,
or “violent”
“serious”
(holding that a third-strike defendant’s
the law’s en
imposed prior
convictions
may
term of 25
mandatory minimum
strikes,
charged as
in 1994 can be
actment
credits).
good-time
reduced with
1621, 47
Kinsey,
Cal.App.4th
People v.
*6
may
769,
as
(Ct.App.1995),
Cal.Rptr.2d
History
And Procedural
B. Facts
re
equivalent convictions
a defendant’s
pre-
officer’s
According
probation
to the
jurisdiction, California
in another
ceived
longtime
Andrade is a
report,
1170.12(b)(2),
667(d)(2),
§§
Penal Code
history of convictions
a
addict with
heroin
as
received
a
certain convictions defendant
report
The
indi-
offenses.
non-violent
Penal Code
juvenile, California
a
in 1982
that
was convicted
Fourth,
cates
Andrade
1170.12(b)(3).
667(d)(3),
there
§§
offense, for which
theft
of a misdemeanor
prior
period after which
is no “washout”
county jail and re-
days in
he
six
longer be
served
will no
qualifying convictions
In
Martinez,
probation.3
months of
twelve
ceived
People
as strikes.2
counted
638, 1983,
guilty
a
pled
consolidated
1502,
Cal.Rptr.2d
Cal.App.4th
degree
counts of first
proceeding
three
(citing Cal.Penal
(Ct.App.1999)
646 & n.
(residential burglary) in violation
1170.12(a)(3)). Fifth,
burglary
§
defendants
Code
§
In
Code
459.4
Penal
of of California
who are convicted
prior
with
strikes
held,
sentencing court
report upon which the
Supreme
tence
Court has
2. The California
however,
report also shows
judges
presumably
reviewable discre-
have
relied.
consider,
justice,
drug
the interest of
diversion
tion
not
sentenced to
Andrade was
a strike.
qualifying conviction as
an otherwise
convic-
time
this misdemeanor
at the same
as
(Romero), Cal.4th
Superior
People v.
Court
tion.
Cal.Rptr.2d
P.2d
(1996).
An-
report
indicates that
presentence
4.The
six,
three, counts of
pled guilty to
drade
An-
explanation, the State excludes
3. Without
court
burglary. Both the trial
first-degree
in its
conviction
drade's 1982 misdemeanor
appeal, as well as the
the state court
history. We in-
recounting of his criminal
however,
briefs,
indicated
in its
State
presen-
appears in the
because
clude here
it
it
months,
Andrade was convicted in federal court of
tences of “16
or two or three
marijuana,”
“transportation
felony. years”
a
any
“punishable
by
crime
im
Andrade was convicted in
prisonment
state
in a
prison”
state
where no
petty
court for a
theft offense.
penalty
specified
law);
Later that
other
Terry,
year,
again
he
convicted
federal
In a memorandum 4(a)(1) district court days or 10 after the motion, stating court denied Andrade’s motion, which party’s granting order part: relevant 4(a)(5)(C). R.App. P. is later. Fed. ever Motion, he claims that petitioner In his not file a notice of Andrade did to the adequate access
has been denied
days
after
April
until
appeal
notice
library
prepare
his
prison law
judgment. He
court entered
the district
This court is
omitted]
appeal, [citation
of
file, however,
to Rule
pursuant
did
argument.
by petitioner’s
persuaded
4(a)(5)(A),
of time
for extension
a motion
Fed.
the standard under
He has not met
17,
entry of the
days
of
4(a)(5)
on
within
exten-
March
P.
to warrant an
R.App.
judgment.6 Although
district court
an appellate
may
brief
qualify as the notice
248-49,
motion,
district court denied the
appeal
of
required by Rule 3. Id. at
motion
asserts
his
for extension of
S.Ct. 678. The Court stated:
equivalent
time was the functional
of a While a
of appeal
specifical-
notice
must
appeal.
of
agree.
notice
We
ly
litigant’s
indicate the
intent to seek
have previously
We
held that a motion
appellate review,
purpose
of this re-
may
for extension of time
not be construed
quirement
is to ensure that
the filing
appeal.
as a notice of
Selph Council
provides
of
sufficient notice to
par-
other
(9th
881,
Angeles,
City Los
593 F.2d
Thus,
ties and the courts.
the notice
Cir.1979),
overruled on other grounds
document,
afforded
not the liti-
Carp.
Artists
v. La Cage
United
Aux
gant’s
it,
in filing
motivation
determines
Folles, Inc.,
(9th Cir.1985).
uncertainty as
notice of
in
to file his
days
that the
which
conclusion
tional 60
compels the
appeal and
not
language does
yet to be
something
appeal.” While
is
appeal
of
notice
Smith,
may
howev
filed.”)
v.
that
preclude
possibility
States
the
In United
from its
departed
appeal,
to
we conclude
er,
the Tenth Circuit
have elected
v.
language
that Smith
con-
by explaining
explicit
rule
more
previous
require
that to
requirement
intent
Barry had modified the
Court’s instruction
Supreme
with the
flicts
notice
to “‘the
emphasis
by shifting
require-
the
Rule 3’s
liberally construe
that we
document,
litigant’s
not the
a
afforded
502 U.S. at
Barry,
v.
ments. Smith
F.3d at
filing
in
it-182
motivation
for ex-
motion
678. Andrade’s
Barry, 502 U.S.
v.
(quoting Smith
three
satisfied the
notice
tension of time
678).
that
248-49,
explained
It
3(c)(1): it identified
of Rule
requirements
motion
whether a
is
question
the relevant
issue,
the
specified
it
judgment
the
required
the three elements
notice of
gave
taken,
be
appeal
which
would
court to
the
“
taking
party
parties
or
3:
‘the
Rule
to both the district
it was delivered
and
one
the
by naming each
appeal
the
Moreover,
opposing party.
the
court and
notice’;
judg
‘the
body of
or
the
caption
the
days
it
of
Andrade filed
within
appealed
thereof
ment,
part
order
judgment,
court
thus
entry of the district
from’;
appeal
the
the ‘court which
of
requirements
satisfying the timeliness
”
3(c)(1)).
Rule
(quoting
is taken.’
4(a)(1)(A).
that
we conclude
Rule
Because
by holding
court concluded
equiva-
the functional
motion is
Andrade’s
of Time Notice
“Motion for Out
appellant’s
we
timely
appeal,
notice of
have
lent of a
elements, was
these
Appeal”
of
satisfied
To the
appeal.
to review this
jurisdiction
time, and thus
the allowable
within
filed
Selph
dictates
extent that our decision
of a notice of
equivalent
the functional
otherwise,
light
it
is overruled
Id. at 735-36.8
appeal.
v.
Smith Bar-
Court’s decision
Supreme
244, 112
ry,
reason
the Tenth Circuit’s
We find
Gay, 967
States v.
L.Ed.2d 678. United
it,
join
along with the
persuasive
ing
Cir.1992)
(9th
(noting
a
F.2d
Circuits,
holding
and Seventh
Sixth
three-judge panel may overrule
deci-
time to
extension of
timely motion for
“
intervening
an
‘when
prior panel
sion of a
may
considered
appeal
a notice of
file
ex-
undermines an
Supreme Court decision
of a notice of
equivalent
functional
Circuit, and
of the Ninth
isting precedent
three
gives
it
notice of the
provided
appeal
”) (quoting
3(c)(1).
closely
point’
cases are
An
both
by Rule
required
elements
Lancellotti, 761 F.2d
v.
of his mo United States
support
drade’s declaration
Cir.1985)).9
(9th
1363, 1366
of
states: “Leandro
for extension
time
tion
Ballard,
Cir.1998)
(11th
other-
v.
F.3d
Circuit has concluded
8. The Eleventh
Barry,
it held that
After Smith v.
is
(holding
wise.
for extension of
that a motion
time
cannot be the
for extension
time
of
motion
equivalent
notice
not the functional
appeal
equivalent
a notice of
functional
uncertainty
appeal where
is
there
the mo-
objectively
is
clear [from
"it
unless
appeal).
party
in fact
See
whether the
will
appeal.”
party
Com-
that a
intends
tion]
County Dep’t
Haugen
Soc.
also
Nassau
Corbett, 256 F.3d
1279-
pare Rinaldo
Cir.1999)
Servs.,
(2d
(hold-
Cir.2001)
(11th
(holding
that a motion
ing
of time
that a
for extension
motion
equivalent
functional
of time
extension
appeal
equivalent
a notice of
functional
party "specifi-
appeal
a notice of
where
appeal”
they "will
appellants
where
stated
gives
...
Court no-
cally
that ‘Plaintiff
states
”),
judgment).
appeal’ with Harris
he intends to
tice that
*10
A
III.
OF REVIEW
state court’s decision can
“contrary
STANDARD
1)
to” federal
law either
if it fails to
review de novo a district
We
apply the correct controlling authority,
grant
deny
court’s
or
a 28
decision
2)or
if it applies
controlling
authori-
petition.
§ 2254
Bribiesca
U.S.C.
habeas
ty to a
involving
“materially
case
facts
(9th
Galaza,
v.
F.3d
Cir.
indistinguishable” from
those
a con-
2000).
case,
trolling
but nonetheless reaches a
different
A
result.
state court’s decision
petition
Because
filed
can involve an
applica-
“unreasonable
August
petition
we review his
1)
tion” of federal law if it either
correct-
under the
provisions
Antiterrorism
ly
governing
identifies the
rule but then
Act,
Penalty
and Effective Death
Pub.L.
applies it
way
to a new set of facts in a
1996)
104-132,
No.
1214 (Apr.
Stat.
2)
unreasonable,
that
objectively
(“AEDPA”).
Lindsey,
Tran v.
Van
extends or fails to extend a clearly es-
(9th Cir.2000).
F.3d
“Under
legal principle
tablished
to a new context
AEDPA,
may
we
reverse a state court’s
in way
is objectively unreason-
denying
only
decision
relief
if that decision
able.
to,
‘contrary
or involves an unreasonable
(internal
“[Wjhen analyzing a claim that
there has
an
application
been
unreasonable
We determine de novo what is
law,
of federal
we must first consider
law,
“clearly established federal
as deter
erred;
whether the
only
state court
after
mined
the Supreme Court of the United
we have
may
made
determination
we
States.” LaJoie v.
L.Ed.2d 389 In Van we Amendment to the analysis: summarized her United provides States Constitution 9. Because we by denying find that Andrade’s motion for abused its discretion his motion equiva- of time extension was the functional proper analy- for extension of time without a timely appeal, lent of a notice of we need not neglect. sis of excusable argument address his that the court district
754
by those
“position taken
it is the
unusual
cause
... cruel and
not
there “shall
10
judg
in the
who concurred
Members
At
here is
issue
inflicted.”
punishments
”
grounds....
the narrowest
a sen-
proscribes
this amendment
1
whether
ment!
Bland,
123, 128-
961 F.2d
v.
United States
shoplifting
to life for
of 50
tence
(9th Cir.1992) (internal
quo
citation and
29
worth a
involving
videotapes
nine
offenses
omitted); see also Henderson
marks
tation
with sever-
by defendant
total of
a
$153.54
(8th Cir.2001)
706,
Norris,
F.3d
709
v.
258
non-violent of-
convictions
previous
al
(“Since
and others
our courts
Appeal, in
Court of
The California
fenses.
outlined Mr.
principles
the
applied
con- have
affirming Andrade’s
decision
its 1997
[Eighth
Kennedy’s opinion
viction,
not.
Justice
it did
concluded that
cases....”);
United States
Amendment]
constitutionality of life sen
The
(10th
1253,
Jones,
Cir.
1261
v.
is con
non-violent recidivists
tences for
2000) (“We
have ruled
Justice Kenne
by
rendered
by several decisions
trolled
...
sets forth
dy’s plurality opinion
in the two decades
Court
Supreme
test.”);
Amendment
applicable
In
court’s decision.
prior to the state
Harris,
1082,
F.3d
v.
154
United States
Estelle,
263,
445
100 S.Ct.
v.
U.S.
Rummel
Cir.1998) (“Our
(9th
court follows the
1084
(1980),
1133,
the Court
1133. The Court held that proportionality Solem,
In
the Supreme
analysis
Court affirmed a
under the Eighth Amendment ap-
decision of the
holding
Circuit
un- plied
imprisonment
to terms of
just as it
constitutional
sentence of
imprison-
life
applied
fines,
capital
to
sentences and
al-
ment
possibility
without the
parole
for a
though it noted
challenges
that successful
11.
was a
This
because it
Obtaining
involved an
14.
money
pretenses
under
false
of more
$50.
amount
than
The offense was
punishable by
was
up
years
to three
in the
punishable by a
years
sentence of two to ten
penitentiary.
state
Id. at 280 n.
100 S.Ct.
in prison. Rummel was sentenced to three
1133.
years. Id. at
nonviolent crime Kennedy imposed for other Justice to sentences 2680. use, then to sentences “[possession, that the crimes California and further noted juris- illegal drugs represent other imposed for similar crimes and distribution affecting the problems greatest ‘one of the dictions. ” and population’ our health and welfare of Punishment Comparison that Harmelin of cocaine quantity
that the
and Crime
yield of be-
potential
“a
possessed had
65,000
Id. at
32,500
doses.”
tween
Penalty
a. Harshness of the
(internal citations
1002, 111 S.Ct. to two consecu-
Andrade was sentenced
omitted).
Harme-
Thus,
concluding
years to
of 25
tive indeterminate sentences
raise an inference
lin’s sentence did not
unique
of a
feature
prison.
life
Because
Kennedy
Justice
gross disproportionality,
law,
sentencing
of the Three Strikes
implicitly
explicitly,
suggest,
did
impose
sen-
judge had no discretion
led to a differ-
analysis
have
would
concurrently.
Code
tences
Cal.Penal
we
Accordingly,
ent outcome
Solem.
1170.12(a)(6);
667(c)(6),
Ingram,
§§
good law af-
*15
conclude that
remains
Solem
most sen-
Cal.Rptr.2d at 264.19 Unlike
that we need
recognizing
ter
sentenc-
imposed
tences
under California’s
fac-
second and third
not consider Solem’s
laws,
three-strikes
ing
Andrade’s minimum
under the first factor
tors if we conclude
by credit for
may
term
not be reduced
does not raise
that a defendant’s sentence
in
working
prison.
while
good behavior
to
gross disproportionality
an inference of
Cervera,
762, 16
at
Cal.Rptr.2d
103
P.3d
111
2680
the crime.
min-
must serve a
181. Andrade therefore
(“This
So-
‘eviscerate[s]’
conclusion neither
he is
years
prison
imum of 50
before
lem,
and third
nor
its second
‘abandon[s]’
eligible
parole.
for
factors,
charges....”).
See
as the dissent
Henderson,
(citing
unavailability
such conduct recidivist, of his offense gravity and the petty indicated that legislature has fornia his relatively independently a minor as cannot assessed regarded theft According to videotape thefts criminal conduct. previous Had Andrade’s offense. offenses, State, maximum war- first theft Andrade’s criminal record been his have received for each punishment he could penalty rants enhanced in coun severity. have been six months Not all justifies theft would its therefore $1,000 fine. and a maximum ty jail repeat on of- imposed enhanced sentences § he had a constitutional, however, 490. Because Cal.Penal Code fenders are offense, however, they were theft prior by the Court’s deci- Solem demonstrated theft with a petty elevated life sentence of a seven- sion to vacate —a either as a punishable offense “wobbler” felony time recidivist. felony. Cal.Penal Code misdemeanor imposes law Three Strikes California’s 666; Cal.Rptr.2d at 770-71. Terry, 54 25-year-to-life sentence on defendants charge decision prosecution’s “seri- convicted of two or more previously qualified the of petty thefts as felonies “violent” felonies. Cal.Penal Code ous” or third and fourth strikes. as his fenses 1170.12(c)(2)(A). 667(e)(2)(A), An- §§ Thus, Cal.Rptr.2d at 770-71. Terry, 54 were predicate drade’s “serious” felonies law, “unique quirk” under a California adjudi- burglary residential three counts of counted, recidivism was double Andrade’s single than a proceeding cated more offenses enhancing first his misdemeanor contrasts decade earlier. This with enhancing again and then them to felonies Rummel, who time defendant served Riggs, 119 and fourth strikes. to third felony being his first before (Stevens, J., at 891 memorandum time for second serving convicted and his respecting peti the denial of the opinion significant. fact the Court found —a certiorari). tion a writ of Rummel, conduct for significant It that the core above, has As noted additional is, in was sentenced
which Andrade
His
misde-
offenses
his record.
instance,
first
classified as misdemeanor
permitted
theft from 1990
meanor
felony.
Supreme
than a
While the
rather
petty theft convictions to be
present
*17
judg-
legislative
defers to
frequently
qualify
thus to
as
charged
felonies and
as
of im-
regarding
proper length
ments
An-
Although
strikes.20
third and fourth
offenses,
it is less
prisonment for
drade
has two federal convictions
also
degree
that the same
of deference is
clear
marijuana,
they
not
transporting
were
are
when extreme sentences
appropriate
record
strikes and there is
counted as
no
misdemeanor
imposed for
conduct.
that the
considered them when sen-
court
(deference
legislative
determination of
tencing
Arguably,
Andrade.
the federal
punishment
pronounced
less
offense
when
not
our
convictions therefore should
affect
Rummel,
felony);
not classified as a
is
imposi-
analysis
they did not affect
as
(acknowl-
274 n.
U.S. at
50-year-to-life sentence.
tion of Andrade’s
analysis
proportionality
edging
entire
Even if we consider
hypothetical
relevant to a
statute
Andrade’s
would be
felonies,
history
by criminal
record'—five
making
parking punishable
overtime
misdemeanors,
and one
violation—-it
imprisonment).
life
days in
and received twelve
jail
theft
months
20.
also has
misdemeanor
probation.
he served six
conviction from
which
quantitatively
qua-
gross dispro-
did not raise an inference of
comparable,
is still
and, therefore,
intrajuris-
portionality
in
no
to that of the defendant
So-
litatively,
comparison
required);
dictional
was
Unit-
burglary
Both defendants had three
lem.
v. Whyte,
ed States
892 F.2d
1176 n.
convictions,
was
although only Andrade
(3d Cir.1989) (upholding
life sentence
single proceed-
all three in a
convicted of
undertaking
intrajurisdictional
without
All of the
were non-violent.
ing.
offenses
comparison).
years
that Andrade’s sentence of 50
Given
to life
a sentence of life without a realis-
is
Where,
here,
the harshness of the
parole,
his case is most
possibility
tic
appears grossly
sentence
disproportionate
analogous
Solem.
gravity
culpa-
to the
of the offense and the
offender,
bility of the
we must assess
Disproportionality
c.
Inference of Gross
disputed
whether the
is
excessive
compared
imposed
when
to “sentences
comparison
A threshold
of the harshness
jurisdiction.”
other criminals
the same
penalty
gravity
and the
Solem,
at
An-
U.S.
tionate. Andrade Meirovitz, States v. United in prison shoplifting mainder of his life (8th Cir.1990) (noting analysis videotapes. nine “rare,” prong ap- under but the second disproportionality inference of This propriate challenged where sentence is life dissipated by Andrade’s criminal possibility parole). without “strikes” non-vio- record. His were above, theft, if petty As noted committed burglaries, prosecuted single judi- in a lent offender, by a first time is a misdemeanor proceeding, cial more than a decade before by up county to six punishable months he under the Three Strikes was sentenced $1,000 jail up fine. Cal.Penal offenses, although not con- law. His other § 490. If a defendant has con Code been sentencing, were also non-vio- sidered offense, may previously victed of a theft he Moreover, unique quirk lent. due to a charged under California Penal Code law, California his recidivism was double- years up 666 and sentenced to to three enhancing counted first his misdemean- misdemeanor, (or, prison charged if as a theft offenses to felonies and then up year county jail). to one Cal.Penal enhancing them to third and fourth Thus, §§ 666. Andrade could Code strikes. have received a total sentence six Comparison Intrajurisdictional maximum had he received the sentences, consecutively, under imposed intrajurisdictional comparison An *18 provisions. these presents only required is when a sentence sentence of 50 gross disproportionality.” an “inference of Andrade’s indeterminate only years 111 to life is exceeded California 501 U.S. at a by first-degree murder and select few Consequently, prong 2680. this second § Code 190 is often men violent crimes. CaLPenal Amendment test death, See, by tioned, (first-degree punishable murder actually applied. seldom but life); Demosthenes, years 25 to id. parole, life mthout or e.g., Cacoperdo v. (9th Cir.1994) (kidnapping § under certain circum- (concluding that a 209 508 parole); by life without gravity punishable of defendant’s stances comparison (train wrecking or de- §§ and 219 of his sentence id. 218 offenses with the harshness 762 said, sentence is unusual That Andrade’s by life without
railing punishable (unlawful to other sentences compared even when death); § or, § 12310 id. recidivists under the Three for non-violent death, mayhem, great causing explosion twice law. Andrade’s sentence is Strikes by without life bodily injury punishable sentences cit- long “comparable” as as the however, crimes, are Most violent parole). Cline, Cal.App.4th 60 by ed the State. § severely. 190 much less punished (25 life); years 41 Cal.Rptr.2d 71 to by 15 punishable murder (second-degree Goodwin, 1084, 69 Cal.App.4th Cal. circumstances); most years to life under (same). long It is twice as Rptr.2d 576 punish- (voluntary manslaughter §id. Terry, upheld which a the sentence § years); (rape id. by up able to third-strike conviction for theft with by years); to id. punishable up (nature Cal.Rptr.2d at 770-71 prior. (sexual by punishable assault on a minor Indeed, we prior specified). strikes not sentence is up years). to 8 Andrade’s published up- no case have found other compared grossly disproportionate when to holding a sentence of 50 life for violent crimes. to the above sentences prison for a non-violent recidivist under that, argues because Andrade State the Three Strikes law.21 recidivist, compare we must sen- is intrajurisdictional comparison of Our other non-violent recidi- tence to those of supports sentences in the con- California The State then lists vists California. gross- clusion that Andrade’s sentence was examples several of non-violent recidivists ly disproportionate to his crimes and under sentenced to harsh sentences Cali- proscribed therefore People fornia’s Three law. Strikes significantly His Amendment. sentence Cline, 1327, 71 Cal.App.4th Cal.Rtpr.2d greater than the sentences under Califor- (25-year-to-life (Ct.App.1998) More- nia law for most violent crimes. felony grand theft with twelve over, compared it is unusual even when burglary); convictions for residential Peo- applications other of the Three Strikes Goodwin, 1084, 69 ple Cal.App.4th law. (25-year- Cal.Rptr.2d (Ct.App.1997) burglary to-life sentence for commercial Interjurisdictional Comparison 3. with two strikes for residential bur- law one California’s Three Strikes glary, plus drug several related offenses twenty-five with this label enacted laws battery). and a misdemeanor and 1995. nationwide between 1993 John agree comparisons Although we al., et “Three and You’re Clark Strikes are rele- sentences for other recidivists A Legislation Review State Out”: vant, problem argu- Justice, with State’s Depart- National Institute justify Justice, it attempts ment ment of Research in Brief of a constitutionally-suspect application Many (Sept.1997). other states have simi- by pointing applications statute to other lar under names like- laws different which than approach punish severely the same statute. We find this wise recidivists more generally People than first-time offenders. convincing. less See State, case, however, triggering Ingram, offenses not cited held that instant *19 Ingram and defendant convicted of two counts of residen- in were "serious” felonies one of prior burglary prior tial strikes be the defendant's strikes was for a violent with two should knifepoint). 25-year-to-life (burglary at Id. at 267- sentenced to two consecutive offense Cal.Rptr.2d Unlike the terms. 48 at 266. E019488, The Rhode Island habitual offender sen- 1997 WL Riggs, No. tencing scheme also differs from Califor- (unpublished) (Cal.Ct.App.1997) *4 n. 2 law that the defen- nia’s Three Strikes forty states have (indicating that at least statute). separate serve “two or more” dant must form of recidivist some qualifies he imprisonment terms of before form of jurisdictions those with some Of § for habitual offender status. Id. 12-19- statute, sentencing State recidivist 21(a). Here, pled guilty Andrade to and trig- only four where Andrade’s suggests burglary three of- was sentenced for his prior) a (petty offense theft with gering single proceeding. fenses in a sentencing: qualify could for recidivist addition, although the Rhode Island Texas, Island, and Virginia, West Rhode requires offender statute the -sen- habitual states, four how- Even in these Louisiana. tencing judge to the defendant order ever, could not receive a sentence years minimum of his serve a number of as he did under Califor- nearly as severe sentence before the defendant becomes eli- the basis of his nia’s Three Strikes law on gible parole, judge’s for discretion to burglary. for residential prior strikes years that minimum number of determine If we also consider Andrade’s convic- 12-19-21(c). § is not restricted. Cali- included in the calculation of his tions not fornia’s Three Strikes law does not afford Three Strikes sentence under California’s any judges. judge such discretion to law—his 1982 misdemeanor theft offense impose mandatory must a minimum term for trans- and his two federal convictions Cervera, 103 possibility parole. without marijuana only in Louisiana portation of — 762,16 Cal.Rptr.2d P.3d at 181. Andrade to receive a possible is it then, Even the sen- comparable sentence. reasons, Therefore, multiple An- challenge would be vulnerable to tence receive severe a sen- drade could not under the Louisiana state constitution. did in tence Rhode Island as he Califor- nia.
a. Rhode Island Virginia b. West Island, may felon In Rhode a three-time to life Andrade could not be sentenced sentenced to an additional 25 Virginia habitual § under the West prison R.I. Gen. Laws 12-19-21. Un- prison. statute, § 61—11— California, however, W. Va.Code theft of mer- offender like 18(c). Supreme Virginia than not a The West chandise valued at less $100 Island, imposed on if has held that a life sentence felony in Rhode even the defen- violates the non-violent recidivist offender theft conviction. Com- dant has 11^41-20(d) proportionality express requirement of § with Cal.Penal pare id. III, Article sentencing mandated Sec- § of Andrade’s Code 666. Each Virginia state constitu- tion 5 of the West property theft offenses involved theft of Deal, ($84.70 $68.84, tion. 178 W.Va. at less than and State valued $100 (1987) (vacating sentence S.E.2d Consequently, Andrade’s respectively). grounds of non-violent recidivist would not be felonies petty theft offenses of- Island, disproportionate not be life in in Rhode and he would Hedrick, fenses); State v. W.Va. 25-year sentence enhance- eligible for (reversing life imprison- maximum term of 391 S.E.2d ment. The prior felonies burglary where year one ment he could receive would be substance delivery of a controlled R.I. were petty theft offense. Gen. for each ll-41-20(d). a non- breaking entering). As Laws *20 (or less, recidivist, because inmates Andrade could not re- of their sentence violent Virginia. in may good-time ceive a life sentence West credit to their time apply served). Tex. Ann. Govt.Code c. Texas 508.145(f). Thus, § if Andrade were sen- Texas, petty punishable Texas, theft is not years he would be tenced to felony (even less, as a unless the defendant has two years in 10 eligible parole previous theft convictions. Tex. Penal credit). good-time with 31.03(e)(4)(D). §Ann. Misdemeanor Code trigger do not Texas’s
convictions habitual d. Louisiana § If offender law. Id. 12.42. Andrade’s At time the courts consid- California only prior petty theft his 1990 offense were appeal, ered Andrade’s Louisiana was the (i.e., disregarding conviction his 1982 theft only among the four cited state conviction, misdemeanor theft as the State Andrade could a sen- State where receive did), An- in its brief and the state courts life,22 comparable years tence to 50 but only present drade’s theft offenses would only if a-Louisiana court considered both Texas, punisha- be misdemeanors in each Andrade’s 1982 misdemeanor theft convic- by up jail up ble to six months in and to a tion and his two federal convictions for $2,000fine. marijuana in transporting addition to those if Even both of Andrade’s theft convictions considered the calculation of counted, present petty convictions are his Andrade’s sentence under California’s only jail thefts would be considered “state then, Three Strikes law. Even such a 31.03(e)(4)(D). § Id. Under felon[ies].” sentence would to a chal- be vulnerable law, jail Texas’s habitual offender a state lenge impermissibly under excessive felony punished second-degree will be as a Louisiana state constitution. (with felony years prison) if up Texas, Similar to theft of less than $300 defendant or more has one felonies. punishable as a under Louisiana 12.42(a)(2) (3), §§ Id. 12.33. It & follows only if previous law a defendant has two that, Texas, up Andrade could receive theft convictions. Ann. La.Rev.Stat. years in if he were sentenced to prison 14:67(B)(3). § not trig- Misdemeanors will consecutive terms. ger Louisiana’s habitual offender law.23 Texas, however, generous parole has a § 15:529.1. policy. Except for those accused of cer- crimes, pro- tain Louisiana’s offender law eligible violent inmates are habitual vides, serving part, after as little as one-fourth relevant defendant 22. Louisiana amended its recidivism statute count as third or fourth strikes. The current year, strikes, La. Sess. Law. Serv. 403 could crimes be treated as second (West), eligi- longer would no 15:529.1(A)(1)(a), § La.Rev.Stat. Ann. comparable for a ble sentence. Under the which case he would receive a maximum of statute, triggering revised offense must be eight years, or twice the maximum sentence violence, offense, "a crime of a sex or ... a petty priors. for each of the thefts with Danger- violation of the Uniform Controlled punishable by imprison- ous Substances Law Therefore, ignored if we Andrade's 1982 years any ment for ten or more or other conviction, present misdemeanor theft punishable by imprisonment crimes only thefts would be misdemeanors in twelve or more” in order to count as a Louisiana, punishable by up each to six third or fourth strike. Because the sentence up $500 months in to a fine. priors for theft with two in Louisiana is a 14:67(B)(3). § La.Rev.Stat. Ann. years, maximum La.Rev.Stat. Ann. 14:67(B)(3), his current crimes would not *21 it].” the minor off State v. felony pushing after subsequent or of a fourth convicted Hayes, (La.Ct.App. minimum term of 303-04 with a So.2d punished Burns, possi- 1999); in without see also State v. 723 So.2d twenty years 15:529.1(A)(l)(c)(i), § bility parole. (La.Ct.App.1998) (invalidating of Id. as ex (G). burglary con- prior three Andrade’s state constitu cessive under the Louisiana single prior a treated as victions would be possession tion a life sentence for and dis courts have con- because Louisiana felony of two rocks of crack cocaine tribution law to have a interpreted the sistently prior felonies had been where defendant’s pen- for enhanced sequential requirement 'mitigat non-violent and there were other Butler, 601 So.2d alties. State circumstances). ing (La.1992); Carry, So.2d State possibility that Andrade the se- (La.Ct.App.1992) (applying comparable have received a sen might to three counts requirement
quential
jurisdiction
other
does not
day).
tence
one
on the same
burglary entered
simple
constitutional under
transporta-
for
render his sentence
convictions
His two federal
Solem,
however,
likely
marijuana,
Eighth
would
Amendment.
tion
299-300,
con-
(holding
second and third
count as his
Ann.
Eighth
La.Rev.Stat.
victions.
defendant’s sentence violated
15:529.1(A)(1).
under this
Accordingly,
§
that de
acknowledging
while
Amendment
Louisiana,
scenario, Andrade,
re-
could
sen
could have received
same
fendant
pa-
without
20-year
sentences
state, Nevada);
ceive
other
see also
tence
one
consecutively.
years if sentenced
role—40
Henderson,
(holding
California’s comparative role for proper California, unlike in possibility, sentences, then, distinct an initial is to validate might have invali- a Louisiana court grossly dispro that a sentence judgment under as excessive dated such a sentence crime.”). to a portionate court, A Louisiana its state constitution. conclude, following the We thus as exces- recently invalidated example, test articulated three-factor revised under the Habitual a life sentence
sive (1) Kennedy in that: Justice convicted of for a defendant Offender Law life years to of 50 punishment Andrade’s taking over “misappropriating $500” gross disproportion an inference of raises “two thefts under prior crimes were whose his two compared to ality when $100, $100, several counts one theft over $153.54, videotapes worth of nine checks, thefts forgery, check issuing worthless felony and misde- light of his stealing bicycle even robbery simple [for [and] convictions; meanor begins analysis Andrade’s sen- The state court its substantially more tence severe than Andrade’s Amendment claim *22 noting validity sentences for most violent that “the crimes Cali- current compared proportionality analysis fornia and is unusual even when Solem question- applications light to other of able in of California’s Three Harmelin.” The remain- (3) law; Strikes and der of its exclusively could not discussion relies any- compares have received Rummel. It such severe sentence Rummel’s three else, with possible exception where the of felonies with Andrade’s two thefts Louisiana. with a Accordingly, disagree we with and his three residential bur- concludes, glaries the California Court of and con- from 1983. It then Appeal grossly “[c]omparing clude that Andrade’s sentence is so crimes and crim- [Andrade’s] disproportionate history inal to his crime that it vio- with that of defendant Rum- mel, the Eighth say lates Amendment to the we cannot United the sentence of 50 States Constitution. to life at issue in this dispro- case is
portionate and constitutes cruel
un-
punishment
usual
under the United States
C. Decision of the California Court
Constitution.”
Appeal
of
Although
appears
the state court
to re
course,
AEDPA,
Of
under
mere dis-
“gross
view for
disproportionality,” its
agreement is not enough.
may grant
We
disregard for Solem results in an unrea
only
relief
if the state court’s decision is
application
clearly
sonable
of
established
to,
“contrary
an
involves
unreasonable
Supreme Court
law. Although Solem’s
of,
application
clearly established Federal
analysis
three-factor
by
was modified
law,
Supreme
determined
the
Court
Harmelin, only
justices
of the Su
the United States.”
28 U.S.C.
preme Court would-have held that Solem
2254(d)(1).
longer good
Indeed,
is no
law.
as dis
above,
Kennedy
cussed
Justice
contrasted
Our
review of
Supreme
severity
of the defendant’s
crime
(1980),
Court’s decisions in Rummel
Solem
“
”
‘relatively
Harmelin with the
minor’
(1983),
and Harmelin
demonstrates
nature of
the offenses
Solem. Harme
that the law governing
application
lin,
Eighth Amendment 957, 1001, 111 S.Ct. Michigan, 501 in a results of a law which application (1991) So (quoting 115 L.Ed.2d to the grossly disproportionate 277, 289-290, Helm, 463 U.S. lem sentence of life crime. Andrade’s (1983) (quoting 77 L.Ed.2d years is with no possibility Estelle, 263, 272, 100 Rummel v. misde to his grossly disproportionate (“Outside 63 L.Ed.2d even S.Ct. videotapes, of nine meanor thefts punished with are all analysis such defendants While Although court ends the state its sentence, they all with a life have not Amendment claim variations of of Andrade’s Rummel, the sec- comparison to it evaluates case Andrade’s same crimes. committed the in its discussion ond third factors compared to other even when is unusual under “cruel and unusual’’ claim defendants, Andrade's is and his sentence three-strikes discus- state constitution. This the California compared sentences extreme when purposes arguably irrelevant for our sion is violent crimes. State's most concern federal law. it did not because appeal’s of the discussion court of state we it as a discussion of federal if treat Even It equally is flawed. concludes third factor however, law, conclusion that the state our Texas, states, including "impose many clearly unreasonably applied estab- court repeat punishments offend- severe law un- Supreme Court remains lished ers,” analysis An- shows that our whereas unreasonably changed. con- The state court received such severe not have drade could effectively factor that the "second cluded state, possible any with the other sentence in defen- "all three strikes because irrelevant” exception Louisiana. punished in the same manner.” dants are capital punishment, the context of success- to the uses proportionality and limits of ful challenges proportionality par- to the review” identifying principles four exceedingly ticular have sentences been application inform the Court’s rare.”)))- Two consecutive sentences of 25 Eighth lengthy prison Amendment years parole eligibility only to life-with af- terms. minimum years-is obviously ter the se- principles Each of the four underlying Nevertheless, it vere. is the sentence “gross Harmelin’s disproportionality” by the mandated citizens California analysis Appel- favors affirmance of through process the democratic initiative lant’s sentence. The first of these is that and, additionally, legislated by their elect- general properly “as a matter [it] within ed representatives. Cal. Pen.Code province legislatures, not courts” to (“three 667(e)(2)(A) § provision strikes” Thus, fix punishments for crimes. Id. “re- minimum
mandating term of 25 viewing grant courts ... should substan- felon); recidivist Cal. Pen.Code 1170.12 tial authority deference to the broad *24 (codifying state-wide initiative identical to legislatures possess determining the “three legislation). strikes” types and limits of punishments for long It has been the law of this Circuit crimes.” Id. that, “[generally, long as the sentence sentencing scheme the instant imposed on a defendant does not exceed case was the result of popular both vote limits, statutory this court will not over (Proposition 184 approved by 71.84 Eighth turn it on grounds.” Amendment electorate) percent of the legislative and Parker, (9th 1114, U.S. v. 241 F.3d 1117 action. Our deference should be at its Cir.2001) (citing United States Zavala- apex. We have before us the clearest Serra, (9th 1512, Cir.1988) 1518 severe, possible indication that mandatory (citing v. Washington, United States 578 sentences for recidivist offenders is the (9th Cir.1978))). 256, F.2d This case expressed penal philosophy of the citizens presents aside, opportunity no to set of California. The initiative process per- qualify, long-established and sound itself, mits the electorate speak to and precedent. heard, its voice should ignored. be not
I
principle underlying
The second
propor-
tionality review
Eighth
“is that
the
sentence,
In reversing Appellant’s
the
Amendment
adoption
does not mandate
majority purports
rely
opinion
to
on the
any
one penological theory.” Id. at
Kennedy
Justice
in Harmelin v. Michigan,
Eighth
S.Ct. 2680. The
Amendment
(Kennedy,
S.Ct. 2680
permits
grant
weights
states to
“different
J., concurring
judgment).
in the
That
at different times to the penalogical goals
opinion (joined by two other members of
retribution, deterrence,
incapacitation,
court)
the
held that
Eighth
Amend-
and rehabilitation.”
All
legitimate
are
ment “forbids extreme sentences that are
goals
sentencing,
and the legislature has
‘grossly disproportionate’ to the crime.”
plenary power
prescribe
to
sentencing ac-
Id. at
2680.
recog-
S.Ct.
While
cordingly.
nizing
that
in-
Amendment
cludes a “proportionality principle,”
Consequently,
Justice
great
we must accord
def-
Kennedy
acknowledged
also
that
pre-
“its
erence to state-mandated sentences. We
cise contours are unclear.” Id. at
employ
power
should not
our
to strike
S.Ct. 2680.
attempted
“give
He
content
unduly
down a sentence as
harsh when its
ever,
objective stan-
lack clear
of an
“that we
incapacitation
is the
purpose
primary
sentences for
distinguish
it
between
Even were
dards
criminal offender.
habitual
years.” Id. at
different terms of
the defendant
that
judgment
collective
our
Solem, 463
See also
U.S. at
rehabilitation,
judgment
that
capable of
is
(“It
is clear that
25-
state
borne out
numerous cases from our
opinions
These two
also reflect what has
sister
In
circuits.
the wake of
been,
today,
until
the consensus of the
single
not a
court has struck down the
regard
federal courts with
scope
to the
sentence of an habitual offender on Eighth
proportionality review under Harmelin.2
grounds.1
Amendment
These cases underscore the
judi-
fact that
fact,
See,
Cardoza,
1. In
in the decade since
e.g.,
Harmelin was
United States v.
129 F.3d
decided,
only
(1st Cir.1997)
one sentence
(affirming
has been struck
sentence of 20
proscribed by
down as
imprisonment
possession
Amend
single
of a
case,
ment to the U.S. Constitution. That
prior
bullet when
defendant had a
his-
Norris,
(8th
Prior,
Henderson v.
tory);
enumerated
federal
court’s
involving
decision as
an ‘unreason
transporting marijuana,
convictions for
application’
able
clearly
established fed
burgla-
dismissal of seven state residential
eral law ... when
independent
our
review
ry charges,
parole
and a
violation for
...
merely
es-
ultimately
does
allow us
to
cape from
prison.
probation
federal
petitioner
conclude that the
has the better
report
Appellant’s
refers to
acknowledged of two
legal arguments,
reasonable
but
heroin
Appellant
addiction and that
admits
rather
leaves us with a ‘firm conviction’
stealing
to support
drug
answer,
habit. The
that one
rejected by
the one
probation report
court,
also
Appellant
other,
states that
was correct and
appli
is unemployed and does not help care for
cation of the federal
law that
the court
erroneous”).
his three children.
adopted,
Before his most recent
Therefore,
conviction, Appellant had
been
and out
repeat, a “rational basis” exists for the
of state or federal
a total of six state of California to conclude that
circumstances,
times. Under such
it is
society
interests of
are
best served
rational for a sentencing court to
Appellant’s
deter-
incarceration for a minimum of
mine that a term twenty-five years
fifty years.
1004,
501 U.S. at
grossly
(“rational
life is not a
disproportionate sen-
dearly erroneous as this Court has defined
it. See Van Tran v. Lindsey, 212 F.3d (9th Cir.2000) (“we 1153-54 hold that
under AEDPA we must reverse a state
(affirming
years
sentence of 25
to life for
separate
theft
rape
combined
offenses of
Goodwin,
clothing); People
59 Cal.
Aiello,
robbery); United States v.
864 F.2d
App.4th
Cal.Rptr.2d
(affirming
(2d Cir.1988) ("Eighth
amendment
years
sentence of
stealing pair
to life for
analysis
imposed
focuses on the sentence
pants);
People
Terry, Cal.App.4th
crime,
specific
each
not on the cumulative
Cal.Rptr.2d
(affirming
sentence of 25
sentence.”); State
Jugs
v. Four
Intoxicating
stealing handbag
to life for
open
left in
Liquor,
(1886),
58 Vt.
2 Atl.
car).
Ramos,
See also Pearson v.
Vermont,
quoted in O’Neil v. State
(7th Cir.2001) ("in any
rate it is
*28
no flicted kept Amendment he violation in sentences totaling life.”). when these sentences were