Wallace v. Castro

65 F. App'x 618

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2003
• Docket: No. 00-16993
• Status: Published

Opinions

MEMORANDUM

**

Larry Eugene Wallace appeals pro se the district court’s denial of his 28 U.S.C. petition. Wallace challenges his California conviction and 50-years and 6-month to life sentence for one count each of grand theft, check forgery, possession of stolen property, possession of a forged driver’s license, posse&sion of a hypodermic needle or syringe, and petty theft with a prior. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Wallace contends that his sentence of 25-years-to-life for petty theft with a pri- or conviction, under California’s three-strikes law, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.¹ Reviewing the district court’s decision de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we cannot agree.

Because Wallace had at least two prior violent or serious felonies, he received a mandatory sentence of 25-years-to-life for his petty theft conviction. See CalPenal Code §§ 667(e)(2)(A). The State of California is entitled to punish recidivist more harshly than first-time offenders. See Ewing v. California, — U.S.-,-, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003). Although Wallace’s sentence is severe, we cannot say that it violates the Eighth and Fourteenth Amendments. See Id. at 1189-90.

Because the state court’s decision was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, the district court properly denied Wallace’s § 2254 petition. See Lockyer v. Andrade, — U.S.-,---, 123 S.Ct. 1166, 1173-75, 155 L.Ed.2d 144 (2003) (upholding state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft).

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 . To the extent that Wallace argues other issues in his brief, we do not consider them because they fall outside the scope of the COA. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).