Leroy Holsey v. William Knipp

672 F. App'x 731

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2016
• Docket: 15-17091
• Status: Unpublished

Opinion

MEMORANDUM *

We may grant federal habeas relief to a state prisoner if the state’s adjudication “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.” 28 U.S.C. § 2254(d)(1). The Supreme Court has extended the Eighth Amendment’s prohibition on cruel and unusual punishment to non-capital sentences that are “grossly disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). But successful proportionality challenges are “exceedingly rare,” Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and we cannot grant habeas relief if “fairminded jurists could disagree on the correctness” of the state court’s decision, Harrington v. Richter, 562 U.S. 86, 88, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotation marks and citation omitted).

Our circuit has given federal habeas relief to a previous California prisoner convicted of the same offense and sentenced to the same term that Holsey now challenges. See Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008). But the California Court of Appeal distinguished Holsey’s case from Gonzalez based on Holsey’s greater propensity to recidivate, as did the district court. Because fairminded jurists could conclude that Holsey’s pattern of recidivism rendered his sentence constitu-. tional, federal habeas relief is unavailable.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.