Eric Cowan v. Josie Gastelo

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 18-56681
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC JEFFREY COWAN, No. 18-56681

Petitioner-Appellant, D.C. No. 3:17-cv-01994-WQH- BLM v.

JOSIE GASTELO, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

California state prisoner Eric Jeffrey Cowan appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We have

jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s denial of

a habeas corpus petition, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and we affirm.

Cowan, who is serving an indeterminate term of life imprisonment under

California’s Three Strikes law, argues that the state trial court violated the Equal

Protection Clause by denying his petition for a recall of sentence under the Three

Strikes Reform Act of 2012. The Three Strikes Reform Act of 2012 sets forth the

threshold eligibility requirements for resentencing and provides that inmates are

ineligible for resentencing where, like Cowan, their commitment offense was a

“serious and/or violent” felony. See Cal. Penal Code § 1170.126. The state court’s

conclusion that this classification scheme has a rational basis was neither contrary

to, nor based upon an unreasonable application of, clearly established Supreme

Court law. See 28 U.S.C. § 2254(d)(1); Heller v. Doe, 509 U.S. 312, 319-20

(1993) (where a law neither burdens a fundamental right nor targets a suspect

class, it survives an Equal Protection challenge “if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification”).

Cowan’s claim that the state court denied him due process by failing to

conduct a hearing is not cognizable because Cowan failed to raise it before the

district court. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).

AFFIRMED.

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