Skinner v. Roe

130 F. App'x 909

Opinions

MEMORANDUM

Footnotes

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After he was convicted of twenty counts of theft-related offenses, petitioner James Skinner was sentenced to 225 years to life imprisonment under California’s Three Strikes Law. He challenged that sentence under the Eighth Amendment to the United States Constitution and the district court denied his petition for habeas corpus. He now appeals that decision. We have jurisdiction under 28 U.S.C. § 2258 and we affirm.¹

We review the district court’s denial of a 28 U.S.C. § 2254 habeas petition de novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.2004). “Under AEDPA, habeas relief is proper only if the state court’s adjudication of the merits of the habeas claim ‘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.’ ” Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir.2004) (quoting 28 U.S.C. § 2254(d)(1)).

Although Skinner’s sentence is harsh, we cannot say that it is contrary to or an unreasonable application of clearly established federal law under the stringent standards of AEDPA. See Lockyer v. Andrade, 538 U.S. 63, 73-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (delineating the appropriate deference due state court judgments under AEDPA). The Supreme Court’s Eighth Amendment jurisprudence establishes “gross disproportionality” as the controlling principle in assessing petitioners’ claims. Id. at 72. In the “extraordinary case,” id. at 76, in which the sentence raises an inference of gross dis-proportionality, the court must engage in an intrajurisdictional comparison of sentences imposed for similar crimes in that jurisdiction, as well as an interjurisdicitional comparison of sentences for the same crime in other jurisdictions. Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).

Here, the state court, applying state law, but assuming that state and federal standards are the same in this context, found that the severity of Skinner’s criminal history and current offense justified the sentence. The district court, discussing Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), Harmelin, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 886, Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), found that Skinner’s sentence did not raise an inference of gross disproportionality and denied habeas relief.

Although Skinner’s criminal history is non-violent,² his triggering offense was not “passive,” Solem, 463 U.S. at 296 (quoting State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting)). Skinner is serving nine consecutive life sentences for nine theft-related convictions, committed on different days; these offenses are far more severe than the uttering of a no account check that triggered the imposition of a life sentence without parole in Solem, a case in which the Court granted habeas relief. Id. at 284. Skinner’s criminal history, however, is less severe than Solem’s. Id. at 279-81 (recounting Solem’s six prior felonies). Solem, therefore, does not provide a direct analogy for the present case.

Skinner’s triggering offenses are each more serious than the theft of videotapes that lead to two sentences of life, with parole available after fifty years, in Andrade, 538 U.S. at 66. The Court denied habeas relief and Andrade, like Skinner, will probably die in prison. Id. at 79 (Souter, J., dissenting). Although Andrade’s triggering offenses were each more minor than Skinner’s, his criminal history, again, was more serious than Skinner’s. Id. at 66-67 (detailing Andrade’s criminal history, which included a parole violation for escaping from a federal prison and a total of five terms of incarceration).

Skinner urges that his case is most similar to that of Ramirez v. Castro, 365 F.3d 755 (9th Cir.2004), where we granted habeas relief to a petitioner sentenced to twenty-five years to life imprisonment for stealing a VCR from a department store. Ramirez’s entire criminal history, however, consisted of the theft of a VCR and two earlier second degree robbery convictions for which he served six months in county jail. Id. at 768. Skinner’s criminal history is more severe than that of Ramirez, each offense is more serious (because each involved breaking into a locked area), and Skinner engaged in a scheme that resulted in nine theft offenses rather than one isolated one. Each of Skinner’s twenty-five-years-to-life sentences is therefore based on a considerably more serious criminal background than was Ramirez’s sentence.

Skinner’s criminal history, and the nature of each current offense, and the number of current offenses, make his case materially distinguishable from all of the cases discussed above. In particular, the present case is distinguishable from Solem, the only case in which the Supreme Court discussed a life sentence without parole for a non-violent offense, and from Andrade, in which the court examined two sentences without the possibility of parole until the completion of the two twenty-five year minimum terms. Because the facts of Skinner’s case fall somewhere between the facts of relevant Supreme Court precedents, and are not as extreme as the facts in Ramirez, the state court’s decision upholding his sentence cannot be considered contrary to or an unreasonable application of clearly established federal law. Thus, we AFFIRM the district court in denying Skinner’s petition for habeas corpus.

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.

1

. The state also argues that the petition should be denied because it was not filed within AEDPA's one year statute of limitations. The parties agree that the petition was not timely, but Skinner argues that he is entitled to equitable tolling. We need not decide the issue because we affirm the district court on the merits.

2

. Skinner did, however, have a conviction for carrying a loaded firearm in public.