Opinion
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NOT FOR PUBLICATION.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 Southern District of California, Judith N. Keep, District Judge, Presiding.
Page 181.
Richard Franklin Duenas, pro se, Corcoran, CA, Jeff Price, Esq., Los Angeles, CA, for Petitioner-Appellant.
Robert M. Foster, Deputy Atty. General, AGCA-Office of the California Attorney General (San Diego), San Diego, CA, for Respondent-Appellee.
Before KOZINSKI and NOONAN, Circuit Judges, and SCHWARZER, District Judge.
The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
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 district court did not err in denying Duenas's habeas petition. Under Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), and Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), Duenas's sentence is not cruel and unusual in violation of the Eighth Amendment.
2. Duenas's claim that the California trial court abused its discretion in refusing to reduce his crime to a misdemeanor does not raise a federal question, and thus is not properly before us. See Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.1994).
AFFIRMED.