Johnson v. Mueller

73 F. App'x 304

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2003
• Docket: No. 03-55185; D.C. No. CV-02-00732-GAF
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Emmith Lee Johnson appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition, challenging his conviction for narcotics violations and related counts. We affirm.

Johnson contends that his sentence of twenty-eight years to life imposed under California’s “three strikes” law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We conclude that petitioner’s argument is foreclosed by Ewing v. California, 538 U.S. 63, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003) (acknowledging broad discretion possessed by legislatures and holding that three-strikes sentence of 25 years to life for felony grand theft was not grossly disproportionate), and Lockyer v. Andrade, 538 U.S. 11, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (holding that state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law). The district court therefore properly denied Johnson’s petition. See Andrade, 123 S.Ct. at 1174.

AFFIRMED.

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.