Smith v. Giurbino

71 F. App'x 684

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 2003
• Docket: No. 02-56505; D.C. No. CV-01-00958-DDP
• Status: Published

Opinion

MEMORANDUM

**

Michael Allen Smith, a California state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition challenging his “three strikes” sentence of 25 years to life for drug possession as cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 2253. We affirm.

Smith contends his sentence under California’s “three strikes” law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We conclude that the California state courts did not unreasonably apply clearly established law in upholding Smith’s sentence. See Ewing v. California, — U.S. ——, 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); Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (holding that state court’s affirmance of two consecutive 25-years-tolife sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law). The district court therefore properly denied Smith’s petition. See Andrade, 123 S.Ct. at 1174.¹

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 . Smith’s motion for a broader certificate of appealability is denied.