Andrews v. Lewis

Full title: Tom William ANDREWS, Petitioner-Appellant, v. Gail LEWIS, Warden, et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 25, 2003

62 F. App'x 183 (9th Cir. 2003)

Opinion

62 Fed.Appx. 183 (9th Cir. 2003) Tom William ANDREWS, Petitioner-Appellant, v. Gail LEWIS, Warden, et al., Respondents-Appellees. No. 00-56282. D.C. No. CV-97-09187-NMM. United States Court of Appeals, Ninth Circuit. April 25, 2003

Submitted April 7, 2003. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Andrews' request for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California, Nora M. Manella, District Judge, Presiding.

Before RYMER, KLEINFELD and FISHER, Circuit Judges.

MEMORANDUM ^**

** 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 Tom William Andrews appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging his sentence for petty theft with a prior. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

Andrews contends that his sentence of 28-years-to-life under California's three strikes law, California Penal Code section 667, constitutes cruel and unusual punishment. This contention was recently foreclosed by the Supreme Court's decisions in Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (holding that a state court's affirmance of two consecutive 25-years-to-life sentences for petty theft was not contrary to, or an unreasonable application of, clearly established Federal law), and Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 105 (2003) (holding that petitioner's 25-years-to-life sentence under the California three strikes law did not violate the Eighth Amendment's prohibition against cruel and unusual punishment).

Therefore, it was not an unreasonable application of Federal law for the California courts to affirm Andrews' 28-years-to-life sentence, and the district court properly denied his petition. See 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (stating that the federal habeas scheme "authorizes federal-court intervention only when a state-court decision is objectively unreasonable"), reh'g denied, 537 U.S. 1149, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).

AFFIRMED. ¹

1 Andrews' motion for a broader certificate of appealability, filed on March 7, 2001, is denied. Appellee's motion for summary affirmance, filed on March 26, 2003, is denied as moot.