U.S. Court of Appeals for the Ninth Circuit, 2003

Wallace v. Castro

U.S. Court of Appeals for the Ninth Circuit · Decided May 19, 2003 · Graber, Pregerson, Reinhardt

65 F. App'x 618

Opinion of the Court

MEMORANDUM **

Larry Eugene Wallace appeals pro se the district court’s denial of his 28 U.S.C. *619§ 2254 petition. Wallace challenges his California conviction and 50-years and 6-month to life sentence for one count each of grand theft, check forgery, possession of stolen property, possession of a forged driver’s license, posse&sion of a hypodermic needle or syringe, and petty theft with a prior. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Wallace contends that his sentence of 25-years-to-life for petty theft with a pri- or conviction, under California’s three-strikes law, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.1 Reviewing the district court’s decision de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir. 2001), we cannot agree.

Because Wallace had at least two prior violent or serious felonies, he received a mandatory sentence of 25-years-to-life for his petty theft conviction. See CalPenal Code §§ 667(e)(2)(A). The State of California is entitled to punish recidivist more harshly than first-time offenders. See Ewing v. California, — U.S.-,-, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003). Although Wallace’s sentence is severe, we cannot say that it violates the Eighth and Fourteenth Amendments. See Id. at 1189-90.

Because the state court’s decision was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, the district court properly denied Wallace’s § 2254 petition. See Lockyer v. Andrade, — U.S.-,---, 123 S.Ct. 1166, 1173-75, 155 L.Ed.2d 144 (2003) (upholding state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the *619courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. To the extent that Wallace argues other issues in his brief, we do not consider them because they fall outside the scope of the COA. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (per curiam).

Concurring Opinion

REINHARDT, Circuit Judge,

specially concurring.

I concur only under compulsion of the Supreme Court’s decision in Andrade. I believe the sentence imposed on the petty theft count is both unconscionable and unconstitutional.

Dissenting Opinion

PREGERSON, Circuit Judge,

writing separately, dissenting in part.

In good conscience, I cannot vote to go along with the sentence imposed on the petty theft count.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.