FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTOS L. REYES, 

No. 00-57130 Petitioner-Appellant,

D.C. No.

v.  CV-00-00608-VAP

JILL BROWN,* Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California,

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

March 7, 2002—Pasadena, California

Submission Withdrawn April 2, 2002

Resubmitted April 17, 2003

Filed March 4, 2005**

Before: Harry Pregerson, Raymond C. Fisher and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Tallman

*Jill Brown is substituted for J.S. Woodford, her predecessor as Warden

of San Quentin State Prison. See Fed. R. App. P. 43(c)(2). 

**This case was originally the subject of a memorandum disposition

filed December 29, 2003. See Reyes v. Woodford, 83 Fed. Appx. 985 (9th

Cir. 2003). On January 12, 2004, Reyes filed a petition for panel rehearing

and rehearing en banc. In an order filed contemporaneously with this opinion, we grant the petition for panel rehearing; withdraw the December 29,

2003, memorandum disposition; and deny the petition for rehearing en

banc as moot. 

2629
COUNSEL

Gretchen Fusilier, Carlsbad, California, for the petitionerappellant.

David Delgado-Rucci, Deputy Attorney General, San Diego,

California, for the respondent-appellee. 

REYES v. BROWN 2631
OPINION

PREGERSON, Circuit Judge: 

California state prisoner Santos L. Reyes brought this 28

U.S.C. § 2254 habeas action challenging his sentence under

California’s “Three Strikes” law. Reyes was convicted of perjury for making misrepresentations on a California Department of Motor Vehicles (“DMV”) driver’s license

application. The perjury conviction was Reyes’ third strike.

He was sentenced to twenty-six years to life. Reyes contends

that his punishment violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The district court

denied Reyes’ habeas petition. Because we conclude that the

facts necessary to evaluate Reyes’ petition were not sufficiently developed before the district court — and, therefore,

are not sufficiently developed in the record before us — we

vacate the district court’s denial of Reyes’ petition and

remand to the district court for further proceedings. 

I.

On September 18, 1997, Reyes entered the DMV on Waterman Avenue in San Bernardino, California. He purportedly

filled out an application for a driver’s license under the name

of his cousin, Miguel Soto, who purportedly knew how to

drive but not how to read. Reyes signed the application, which

purportedly stated that the information was being provided

under penalty of perjury.1 After Reyes signed the application,

1The parties dispute whether the application Reyes signed was in

English or Spanish and whether it stated that the information being provided was under penalty of perjury. For example, the State maintains that

Reyes “filled out an English language application . . . . which stated the

information was being provided under penalty of perjury.” See Appellee’s

Br. at 4-5, available at 2001 WL 34355184. In contrast, Reyes maintains

that the application “was in Spanish,” that he “did not know that he was

signing under penalty of perjury,” that he “did not know what ‘perjury’

meant,” and that “nothing on” the Spanish application says “ ‘I have read

and understood the above.’ ” See Appellant’s Opening Br. at 5-6, 8, available at 2001 WL 34355185. We need not resolve this dispute because it

is not germane to our resolution of the instant appeal. 

2632 REYES v. BROWN
DMV employee Debra Alexander gave Reyes two copies of

the written driver’s license test. Alexander suspected that

Reyes was cheating on the exam by using a “crib sheet.” She

confiscated the two tests from Reyes and began filling out

paperwork related to Reyes’ alleged cheating. Meanwhile,

Reyes left the DMV building. 

Alexander contacted California Highway Patrol Officer

José Lopez, who was stationed at the DMV. Officer Lopez

followed Reyes, who was walking away. After catching up

with Reyes, Officer Lopez patted-down Reyes and handcuffed

him. Reyes cooperated with Officer Lopez and voluntarily

admitted that he had attempted to take the written driver’s

license test for Soto. The encounter was without violence. 

On March 2, 1998, Reyes was arraigned on an Amended

Information, charging him with one count of perjury in violation of California Penal Code § 118. Reyes qualified for the

Three Strikes enhancement because of two prior convictions:

one as a juvenile in 1981 for residential burglary in violation

of California Penal Code § 459; and one in 1987 for armed

robbery in violation of California Penal Code § 211. 

The State offered Reyes a deal of four years imprisonment

in exchange for a guilty plea to the perjury charge, but Reyes

rejected the plea deal and exercised his constitutional right to

a jury trial. On March 5, 1998, a jury convicted Reyes of the

perjury charge and found the Three Strikes special allegations

true. On April 2, 1998, the trial court sentenced Reyes to an

indeterminate term of twenty-six years to life. 

Reyes appealed the judgment, claiming, among other

things, that his sentence violated the Eighth Amendment’s

prohibition on cruel and unusual punishment. On June 9,

1999, the California Court of Appeal affirmed Reyes’ conviction and sentence. On September 1, 1999, the California

Supreme Court denied Reyes’ petition for review. 

REYES v. BROWN 2633
On July 26, 2000, Reyes filed a 28 U.S.C. § 2254 habeas

petition in the United States District Court for the Central District of California. On September 21, 2000, Magistrate Judge

Charles F. Eick issued a report and recommendation urging

that Reyes’ petition be dismissed with prejudice. On October

12, 2000, District Judge Virginia Phillips adopted the report

and recommendation and dismissed Reyes’ petition. 

On October 31, 2000, Reyes timely filed a notice of appeal

and a request for certificate of appealability. On May 2, 2001,

we granted Reyes a certificate of appealability on the limited

issue whether his Three Strikes sentence violated the Eighth

Amendment.2

II.

We review de novo a district court’s decision to grant or

deny a 28 U.S.C. § 2254 habeas petition. See Rios v. Garcia,

390 F.3d 1082, 1084 (9th Cir. 2004). The provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub L. No. 104-132, 110 Stat. 1214, govern

Reyes’ habeas petition. Under AEDPA, habeas relief is proper

if the state court’s adjudication of the merits of the habeas

claim resulted in a decision that was “ ‘contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.’ ” Rios, 390 F.3d at 1084 (quoting 28 U.S.C.

§ 2254(d)). “A state court’s decision is ‘contrary to’ clearly

established federal law if it ‘applies a rule that contradicts the

governing law set forth in [Supreme Court] cases[,]’ or (2)

‘confronts a set of facts that are materially indistinguishable

from a [Supreme Court] decision and nevertheless arrives at

a [different] result.’ ” Id. (quoting Williams v. Taylor, 529

U.S. 362, 405-06 (2000)). “A state court’s decision is an

2Reyes subsequently filed two requests to broaden the certificate of

appealability. We deny those requests in a separate unpublished order filed

contemporaneously with this opinion. 

2634 REYES v. BROWN
unreasonable application of clearly established federal law if

‘the state court identifies the correct governing legal principle

from [Supreme Court] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.’ ” Id. (quoting

Williams, 529 U.S. at 413). 

III.

[1] Applying AEDPA in Ramirez v. Castro, 365 F.3d 755

(9th Cir. 2004), we recognized that Eighth Amendment challenges to Three Strikes sentences remain viable in certain “exceedingly rare” cases. Id. at 756, 770; see also id. at 763

(noting that the Eighth Amendment’s “ ‘proportionality principle’ . . . is applicable ‘only in the “exceedingly rare” and

“extreme” case’ ” (quoting Lockyer v. Andrade, 538 U.S. 63,

72-73 (2003))).3 We applied the Supreme Court’s analysis in

Solem v. Helm, 463 U.S. 277 (1983), to examine as an initial

matter “whether [the petitioner’s] extreme sentence is justified by the gravity of his most recent offense and criminal history.” Ramirez, 365 F.3d at 768 (holding that this inquiry

gives rise to an inference of gross disproportionality, which

then calls for intrajurisdictional and interjurisdictional analyses). 

[2] We concluded that Ramirez’ sentence did not match the

gravity of the triggering offense, given that his most recent

offense consisted of the nonviolent shoplifting of a VCR. See

id. Our reasoning that Ramirez’ conduct did not “threaten[ ]

. . . grave harm to society” applies here, id. (quoting Harmelin

v. Michigan, 501 U.S. 957, 1003 (1991) (Kennedy, J., concur3We note that the California Attorney General declined to seek further

review of our decision in Ramirez, stating that he was acting in “the interest of justice” and calling Ramirez an “exceedingly rare case.” Henry

Weinstein, Lockyer Gives Up Three-Strikes Case, L.A. TIMES, Apr. 30,

2004, at B6, available at 2004 WL 55909787. 

REYES v. BROWN 2635
ring)), where Reyes’ act of falsifying a driver’s license application was not a crime targeted at another individual.4

We next considered Ramirez’ criminal history to determine

whether the extreme sentence matched his prior offenses. See

id. at 768-769. Ramirez had been twice convicted of “seconddegree robbery, i.e., willfully and unlawfully taking personal

property ‘by means of force and fear’ in violation of California Penal Code §§ 211, 212.5(c), and 213(a)(2), a ‘serious felony’ under § 1192.7(c)(19).” Id. at 757. The first strike

involved shoplifting from a grocery store, after which a getaway car driven by a third person ran over the store security

guard’s foot. See id. at 757, 768. In the second offense,

Ramirez pushed a security guard away with his open hand as

he ran out of K-Mart with stolen goods. See id. at 757, 768.

Ramirez was found to have committed these offenses with

“force” and was prosecuted for and convicted of “seconddegree robbery,” as opposed to “petty theft” (Cal. Penal Code

§§ 484, 488) or “second-degree commercial robbery” (Cal.

Penal Code §§ 459-61) because of the physical contact with

the security guards. Id. at 768. Ramirez served very little time

in prison for these two offenses. See id. at 769. 

4Signing someone else’s name on a driver’s license application is specifically proscribed by the California legislature as a misdemeanor. See

Cal. Veh. Code § 20 (“It is unlawful to use a false or fictitious name, or

to knowingly conceal any material fact in any document filed with the

[DMV].”); id. § 40000.5 (classifying a Vehicle Code § 20 violation as a

misdemeanor). The offense does not, however, preclude prosecution of the

defendant under Penal Code § 118 for felony perjury, instead of the misdemeanor Vehicle Code section that more accurately proscribed Reyes’

conduct, see People v. Molina, 5 Cal. App. 4th 221, 231 (1992) (holding

that “Vehicle Code section 20 does not preclude perjury prosecutions for

those filing false license applications under oath at the DMV”), and in this

case, Reyes was convicted after trial of felony perjury. The fact that the

California legislature deemed making false statements on a driver’s

license application to be a misdemeanor reflects that Reyes’ offense “is

viewed by society as among the less serious offenses.” Solem, 463 U.S.

at 296 (internal quotations omitted). 

2636 REYES v. BROWN
[3] In the instant case, Reyes earned his first strike for residential burglary, in violation of California Penal Code § 459,

when he was seventeen years old. He was sentenced to two

years at the California Youth Authority and was paroled after

one year. Reyes’ age and the fact that the offense appeared to

be nonviolent5 — for which he was only required to serve two

years at California Youth Authority — weigh against finding

this to be a “grave” offense sufficient to justify his twenty-six

years to life sentence. 

[4] The sticking point in this case comes from Reyes’ 1987

conviction for armed robbery in violation of California Penal

Code § 211. He was sentenced to nine years of which he

served five.6 The record does not reveal the circumstances

under which this felony was committed.7 This conviction rep5The little detail in the record suggests that Reyes was “at some guy’s

house with some friends and . . . walked out with a radio that didn’t belong

to” him. 3/4/98 Trial Tr. at 120:8-9. 

6Reyes also has a history of “non-strike” offenses including petty theft;

being under the influence of a controlled substance; misdemeanor DUI;

and misdemeanor battery. None of these offenses appear to have involved

violence, and unlike the criminal histories of the defendant in Ewing v.

California, 538 U.S. 11 (2003), and the petitioner in Andrade, 538 U.S.

63, Reyes’ criminal history became indisputably less serious over time,

see Ramirez, 365 F.3d at 765-767 (describing Ewing’s and Andrade’s

criminal histories). 

7The paucity of detail in the record indicates that this offense may have

been non-violent. Compare 3/4/98 Trial Tr. at 120:17-24 (suggesting that

Reyes “was stealing” — “not robbing” but “had a knife” on his person),

with Rios, 390 F.3d at 1086 (distinguishing Ramirez because, during the

commission of his triggering offense, “Rios struggled with the loss prevention officer and tried to avoid apprehension” and, during his prior robbery “strikes,” Rios’ “cohort used a knife” (emphasis added)). 

The dissent argues that we are being unfaithful to Ramirez because

Ramirez “focuses on the presence of a weapon, not whether, how, or

where it was or was not used” and “Reyes . . . himself, carried the weapon.” Dissent at 2641 n.1 (emphasis in original). With respect to our able

colleague, we believe that he is misreading Ramirez. Ramirez never refers

to “the presence of a weapon.” Rather, each time Ramirez refers to weapREYES v. BROWN 2637
resents a point of departure from Ramirez, given the nature of

the offense and the nine-year prison term to which Reyes was

sentenced. 

However, in Ramirez, even though the defendant was convicted of two “serious felonies,” we considered the factual

specifics of Ramirez’ conduct. Ramirez, 365 F.3d at 767

(looking past the definitions of the crimes of which Ramirez

was convicted to determine whether Ramirez’ conduct

involved violence or was particularly serious). Although

Ramirez was twice convicted of robbery “by force,” we minimized the gravity of the offenses by noting that in the first

strike offense a third person had run over the security guard’s

foot, resulting in a “minor injury.” Id. And in the second

strike offense, Ramirez pushed away the security guard with

his hand on his way out the door. See id.

ons, it refers exclusively to whether weapons were “involved.” 365 F.3d

at 757, 768, 775; see also Rios, 390 F.3d at 1086 (noting that Ramirez’

“prior convictions were for non-violent robberies in which no weapons

were involved” (emphasis added)). We understand Ramirez’ use of the

word “involved” to mean “engaged or employed.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 1005 (rev. ed. 1996)

(defining “involve” as “to engage or employ”). Surely, involving, engaging, or employing a weapon constitutes more than the mere presence of

an unused weapon. 

The dissent also asserts that “Rios arguably weighs in favor of finding

Reyes’ punishment justified” because “in Rios . . . Rios’ cohort used a

weapon,” whereas here “Reyes . . . himself, carried the weapon.” Dissent

at 2641 n.1 (emphasis added). We think our colleague misses the point.

If Reyes (or an accomplice, if any) actually used a knife in the commission

of his 1987 robbery, “an inference of gross disproportionality” would not

be raised because it is the use of a weapon that “ ‘threaten[s] to cause

grave harm.’ ” Ramirez, 365 F.3d at 765, 768 (quoting Harmelin, 501 U.S.

at 1002 (Kennedy, J., concurring)). Would our dissenting colleague hold

that a shoplifter caught with a small pocket-knife in his pocket necessarily

committed a violent crime? In this case, the record is entirely unclear as

to whether the conduct underlying Reyes’ 1987 conviction involved anything more. 

2638 REYES v. BROWN
In Solem, the Supreme Court found an Eighth Amendment

violation where the habeas petitioner was sentenced to life

without parole for “uttering” a false check under a recidivist

statute. 463 U.S. at 279-80. He had a history of six nonviolent

felonies, including three separate third-degree burglaries,

obtaining money under false pretenses, grand larceny, and

driving while intoxicated. See id. In considering the gravity of

his offenses, the Court noted that “nonviolent crimes are less

serious than crimes marked by violence or the threat of violence.” Id. at 292-93. The Court concluded that “his prior

offenses, although classified as felonies, were all relatively

minor. All were nonviolent and none was a crime against a

person.” Id. at 296-97 (emphasis added).8

[5] In the instant case, but for Reyes’ armed robbery conviction, Reyes would appear to have a plausible case for relief

under Ramirez.

9

 Unfortunately, the circumstances under

which Reyes committed the robbery are not sufficiently

developed in the record for us to determine whether the

offense was a “crime against a person” or involved violence.

Moreover, given that Reyes’ first strike was earned as a juve8The dissent labels Reyes a “career criminal” whose “criminal history

reflects the very type and degree of recidivism the Supreme Court recognizes Three Strikes laws were properly intended to address.” Dissent at

2642 (citing Rummel v. Estelle, 445 U.S. 263, 284-85 (1980)). But Reyes

is no more a career criminal than the petitioner in Solem, who the Supreme

Court held was entitled to habeas relief under the Eighth Amendment.

Compare Dissent at 2642 (noting that, between 1981 and 1997, Reyes

committed six crimes) with Solem, 463 U.S. at 279-80 (discussing Solem’s

six convictions for third-degree burglary, obtaining money under false pretenses, grand larceny, and driving while intoxicated). 

9Our suspicion that Reyes’ twenty-six years to life sentence may be

grossly disproportionate to the gravity of his triggering offense and criminal history is also supported by the fact that the State offered Reyes a deal

of four years imprisonment in exchange for a guilty plea to the triggering

perjury charge. By offering Reyes such a heavily discounted sentence, an

inference may properly be raised that the State did not view Reyes as a

“danger to society” and that the State did not feel “the need to counter his

threat with incapacitation.” Andrade, 538 U.S. at 81 (Souter, J., dissenting). 

REYES v. BROWN 2639
nile, the gravity of his offenses in total rests heavily on his

1987 armed robbery conviction. More facts, such as those on

which we relied in Ramirez, would help determine the true

weight of the offense beyond the label of the crime (“armed

robbery”) of which Reyes was convicted. Accordingly, we

vacate the district court’s denial of Reyes’ habeas petition and

remand for the district court to develop the record further and

to determine in the first instance whether Reyes is entitled to

relief under Ramirez. 

The panel shall retain jurisdiction over this matter. 

VACATED and REMANDED. 

TALLMAN, Circuit Judge, dissenting:

In Ewing and Andrade, the United States Supreme Court

found that California Three Strikes sentences at issue did not

violate the Eighth Amendment prohibition on cruel and

unusual punishment. Lockyer v. Andrade, 538 U.S. 63 (2003),

Ewing v. California, 538 U.S. 11 (2003). In its opinions, the

Court allowed for the remote possibility of finding a statutory

punishment unconstitutional when it is “grossly disproportionate.” Andrade, 538 U.S. at 73; see also Ewing, 538 U.S.

at 23 (noting that the Eighth Amendment contains a narrow

“proportionality principle that applies to noncapital sentences”) (internal quotations and citations omitted). The Court

did not elaborate what types of violations this exception might

encompass, but warned that “it is applicable ‘only in the

exceedingly rare and extreme case.’ ” Ramirez v. Castro, 365

F.3d 755, 763 (9th Cir. 2004) (discussing Andrade, 538 U.S.

at 72-73). This is not one of them. 

After the Court’s decisions in Ewing and Andrade, the

Ninth Circuit quickly found such an exceedingly rare case in

Ramirez. Although Ramirez is now the law of the circuit for

2640 REYES v. BROWN
habeas challenges to Three Strikes sentences, its analysis is

less than ideal. The Ramirez opinion sets forth what is, at best,

a nebulous balancing test for analyzing whether a lengthy

Three Strikes sentence violates the proportionality principle:

whether the sentence is “justified by the gravity of [the petitioner’s] most recent offense and criminal history.” Ramirez,

365 F.3d at 768; see also Ewing, 538 U.S. at 29 (noting that,

when considering the gravity of the offense, the court “must

place on the scales not only his current felony,” but also his

criminal history). 

In determining the gravity of the triggering offense and

criminal history, Ramirez instructs courts to examine the

“core conduct” of the crimes and consider: (1) whether the

crime involved the use of force; (2) whether weapons were present;1

 (3) whether the crime was violent in nature; and (4) the

length and type of sentence imposed. See Ramirez, 365 F.3d

at 768-69 (discussing the factors of Ramirez’s triggering

offense and criminal history that were relevant in determining

whether the sentence was justified).2

1The panel majority attempts to distinguish Reyes from Rios v. Garcia,

390 F.3d 1082 (9th Cir. 2004), by focusing on the fact that Rios’ cohort

used a weapon. This sort of parsing is unpersuasive in distinguishing the

two cases and also illustrates the difficulties of following precedent such

as Ramirez. First, as unworkable as Ramirez is, it focuses on the presence

of a weapon, not whether, how, or where it was or was not used. Second,

even Rios arguably weighs in favor of finding Reyes’ punishment justified; in Rios, the court found his punishment justified simply because

Rios’ cohort had a weapon. Reyes has no such excuse because he, himself,

carried the weapon. Finally, Rios and the majority opinion here foretell

what is to come in the wake of Ramirez: inconsistent outcomes in cases

depending on whether individual panels choose to focus on the presence

versus the use versus the involvement of a weapon. Surely the Eighth

Amendment analysis must rely on more substantive distinctions. All three

cases err in ignoring the key point that the Three Strikes Statute punishes

recidivism, not subtle differences between the nature of the triggering

offense or prior offenses. 

2Ramirez did not explicitly list a set of factors to consider when making

this inquiry, nor did it explicitly state that this was a balancing test, leaving future panels with the unfortunate task of gleaning clear guidelines

from the opinion. 

REYES v. BROWN 2641
The court here declares that Reyes potentially presents

another one of these exceptionally rare cases, and that an evidentiary hearing is required in order to determine whether

Reyes’ punishment violated the proportionality principle.

Based on Supreme Court and Ninth Circuit precedent, I disagree with both of these propositions. However much individual judges chafe at the Supreme Court’s decisions in Ewing

and Andrade or the electorate’s continuing and clear expression of support for tough treatment of repeat offenders, our

obligation is to apply the law which the Supreme Court

upheld in Andrade and Ewing. 

Reyes does not present an “extraordinary” rare case; he is

a career criminal. Between 1981 and 1997, he committed six

crimes and spent almost seven years behind bars, five of

which were passed in state prison. His criminal history

reflects the very type and degree of recidivism the Supreme

Court recognizes Three Strikes laws were properly intended

to address. Rummel v. Estelle, 445 U.S. 263, 284-85 (1980)

(rejecting an Eighth Amendment challenge to Texas’ recidivist statute). Furthermore, even if a narrow class of cases exist

that might constitute an unusual exception, Ramirez’s criminal history pales in comparison to Reyes’ sixteen years of onagain, off-again criminality. I would not characterize the

nature of Reyes’ prior convictions as charitably as does the

majority, particularly where Reyes has been convicted of battery, armed robbery, and driving while under the influence, all

of which pose a potential of seriously injuring other people.

There is no need for an evidentiary hearing. While the

Ramirez balancing test is admittedly vague, at least two of the

four factors that the Ramirez court considered relevant weigh

heavily in favor of finding Reyes’ sentence justified. First,

Reyes was convicted of armed robbery; contrary to the panel

majority’s inferences, this strike certainly involves at least the

presence of a weapon during the commission of a violent

crime. Second, Reyes served five years of a nine-year state

prison sentence for his armed robbery conviction. Not only is

2642 REYES v. BROWN
this a lengthy sentence, but Ramirez explicitly noted that a

critical consideration in determining whether a sentence is

proportionate is whether the petitioner has ever “been sentenced to [or] served any time in state prison prior to committing” the triggering offense. Ramirez, 365 F.3d at 769

(emphasis added). These facts strongly distinguish Reyes’

case from Ramirez and justify the Three Strikes sentence

imposed. 

It is unclear what sorts of facts the court here anticipates

will be revealed during the evidentiary hearing, or what difference they will make in the proportionality inquiry. It is also

unclear what facts the district court on habeas review is permitted to revisit in its “core conduct” inquiry in the face of a

final state criminal judgment that Reyes committed a robbery

while armed. Because Ramirez sets forth a balancing test, the

district court must simply determine that, in consideration of

the four factors, and particularly his pattern of continuing

criminal behavior, Reyes’ prior time spent in state prison and

his earlier conviction for armed robbery render his Three

Strikes sentence for perjury justified under controlling

Supreme Court precedent. There is no need for an evidentiary

hearing to reach that conclusion on the record already before

us. 

I would deny Reyes’ petition for rehearing and petition for

rehearing en banc. Accordingly, I DISSENT from this futile

remand. 

REYES v. BROWN 2643