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affirming summary judgment for defendants in appeal from E. D. Cal. Case No. 99-6417 OWW
Summary of this case from Walker v. MunizOpinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding.
Wallace Clayton, Jr., Soledad, CA, pro se.
Catherine Tennant, Office of the Attorney General, Sacramento, CA, for Respondent-Appellee.
Before B. FLETCHER, SILVERMAN and WARDLAW, Circuit Judges.
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.
California state prisoner Wallace Clayton, Jr. appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging his three-strikes sentence for second degree burglary. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.
Clayton's contention that his sentence of 25-years-to-life is grossly disproportionate in violation of the Eighth Amendment is unpersuasive in light of Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172-75, 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 federal law), and Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1185-90, 155 L.Ed.2d 108 (2003) (holding that a 25-years-to-life sentence for grand theft under the California three-strikes law did not violate the Eighth Amendment's prohibition on cruel and unusual punishment). The district court therefore properly denied Clayton's petition. Andrade, 123 S.Ct. at 1175.
To the extent Clayton raises other claims, we decline to address them since they are not encompassed in the certificate of appealability. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).
The Clerk shall file appellant Clayton's reply brief received on August 26, 2003.