Johnson v. Pliler

Full title: Alvin Ray JOHNSON, Plaintiff--Appellant, v. Cheryl K. PLILER, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 25, 2003

62 F. App'x 180 (9th Cir. 2003)

Opinion

62 Fed.Appx. 180 (9th Cir. 2003) Alvin Ray JOHNSON, Plaintiff--Appellant, v. Cheryl K. PLILER, Warden, Defendant--Appellee. No. 01-16461. D.C. No. CV-99-00194-MJJ. 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).

NOT FOR PUBLICATION.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

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, 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 Alvin Ray Johnson appeals pro se the denial of his 28 U.S.C. § 2254 petition challenging this "three-strikes" sentence for selling or furnishing cocaine with five prior qualifying felony convictions. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Johnson contends that his 25 years to life sentence under California's "three-strikes" law for selling or furnishing cocaine, in violation of Cal. Health & Safety Code § 11352(a), violates the Eighth Amendment guarantee against cruel and unusual punishment. This contention is foreclosed by the Supreme Court's recent decisions in Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003) (noting the broad discretion possessed by legislatures and holding that petitioner's 25 years to life sentence under the California "three-strikes" law did not violate the Eighth Amendment's prohibition on cruel and unusual punishment), and Lockyer v. Andrade, 538U.S. 63, 123 S.Ct. 1166, 1174-75, 155 L.Ed.2d 144 (2003) (affirmance of two consecutive 25-years to life sentences for petty theft was

Page 181.

not contrary to or an unreasonable application of clearly established federal law).

Accordingly, the district court properly denied Johnson's petition. See § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (deciding 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.