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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEWIS JENKINS,

Petitioner, No. CIV S-04-1656 FCD GGH P

vs.

STEVE CAMBRA, et al., 

Respondents. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding through counsel with a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction for grand

theft from a person in violation of Cal. Penal Code § 487(c). Petitioner is serving a sentence of

29 years to life pursuant to the Three Strikes Law.

Petitioner challenges his conviction on two grounds: 1) ineffective assistance of

counsel; and 2) his sentence violates the Eighth Amendment. After carefully reviewing the

record, the court recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this

petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle,

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138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 117 S. Ct. 2059 (1997). The AEDPA “worked

substantial changes to the law of habeas corpus,” establishing more deferential standards of

review to be used by a federal habeas court in assessing a state court’s adjudication of a criminal

defendant’s claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.

1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[A] federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

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The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

In reviewing a state court’s summary denial of a habeas petition, this court must

“look through” the summary disposition to the last reasoned decision. Shackleford v. Hubbard,

234 F.3d 1072, 1079 n. 2 (9 Cir. 2000). th

III. Discussion

The opinion of the California Court of Appeal contains a factual summary of

petitioner’s offense. After independently reviewing the record, the court finds this summary to

be accurate and adopts it below:

On August 21, 2000, Rosemont Louissant, a school custodian, reported for work 

at 7:00 a.m., and observed a man sleeping on a picnic table on the grounds of the 

school. He unsuccessfully tried to awaken the man, but when he noticed a gun 

lying on the table next to the man he went to call the police. From inside the 

school, he observed Jenkins and Charlesetta Jackson approach the man. Jackson 

testified that Jenkins reached into the man’s pockets and took some money. She 

also saw Jenkins toss a gun into some bushes as he walked away. A police officer

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arrived at the scene and detained Jackson and Jenkins. The victim stated that he 

felt someone hold his head down and go through his pockets, and that he was 

missing three fives and seven ones. Bills in the same denominations were 

recovered from Jenkins pockets.

The jury convicted Jenkins of one count of grand theft from the person, but was 

unable to reach a verdict on additional counts of grand theft of a firearm (§ 487, 

subd. (d)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The 

court declared a mistrial with respect to these counts.

Jenkins trial counsel filed a motion to strike the priors, which the court denied. 

Upon Jenkins request, a new attorney was appointed to file a motion for a new 

trial, based upon ineffective assistance of counsel. The court denied the motion 

for a new trial and a renewed motion to strike the prior “strike” convictions, or to 

reduce the current offense to a misdemeanor. [Footnote omitted.]

Jenkins’s Personal and Criminal History 

Jenkins was convicted of robbery in 1977. While on parole, he committed 

another robbery and was convicted for that offense in 1980. The court sentenced 

him to four years in prison, and a one-year prior prison term enhancement. He

was released on parole in July 1982. He violated parole in March of 1983, and 

was paroled again in January 1984.

Then, in October of 1984, he was convicted of grand theft from the person, with a 

prior prison term allegation, and sentenced to five years in prison. In February of 

1988, while on parole, he was charged and convicted of violating Health and 

Safety Code section 11350 and sentenced to four years in prison. In October of 

1989, after being on parole for less than a month, he violated parole, and was 

returned to prison. Within months of his February 1990 release on parole, he was 

charged with committing another robbery. The robbery charge was dismissed and

handled as another parole violation, resulting in his return to prison. In January of

1992, a few months after being released on parole, he was arrested for being a

felon in possession of a firearm, which again was handled as a parole violation, 

and in July violated parole yet again.

In December of 1992, a jury convicted Jenkins of violating Health and Safety 

Code section 11352, and the court sentenced him to eight years in prison. In the 

first two years on parole, from 1998 through 2000, he violated parole multiple 

times, and incurred three misdemeanor convictions, culminating in the current 

offense. 

Jenkins had a history of abusing cocaine. The probation officer’s report observed 

that Jenkins “never actively sought treatment while imprisoned or on parole.” 

Although he finally expressed interest in addressing his substance abuse problem, 

“his poor performance while on probation and parole prompts doubt that the 

defendant would remain compliant with terms and conditions.”

Respondent’s Exhibit E, p. 2.

/////

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A. Ineffective Assistance of Counsel

Standards for Ineffective Assistance of Counsel

The test for demonstrating ineffective assistance of counsel is set forth in 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, a petitioner must show

that, considering all the circumstances, counsel’s performance fell below an objective standard of

reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To this end, the petitioner must

identify the acts or omissions that are alleged not to have been the result of reasonable

professional judgment. Id. at 690, 104 S. Ct. at 2066. The federal court must then determine

whether in light of all the circumstances, the identified acts or omissions were outside the wide

range of professional competent assistance. Id., 104 S. Ct. at 2066. “We strongly presume that

counsel’s conduct was within the wide range of reasonable assistance, and that he exercised 

acceptable professional judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d

695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S. Ct. at 2065). 

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at

693, 104 S. Ct. at 2067. Prejudice is found where “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694, 104 S. Ct. at 2068. A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id., 104 S. Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated

based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S. Ct.

1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S. Ct. 838, 506 U.S. 364 (1993)).

The Supreme Court has recently emphasized the importance of giving deference

to trial counsel’s decisions, especially in the AEDPA context:

In Strickland we said that “[j]udicial scrutiny of a counsel’s

performance must be highly deferential” and that “every effort

[must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.”

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 In People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789 (1996), the 1

California Supreme Court found that under the Three Strikes Law, a trial judge has the discretion

to dismiss a prior felony conviction allegation absent the prosecutor’s consent.

6

466 U.S., at 689, 104 S.Ct. 2052. Thus, even when a court is

presented with an ineffective-assistance claim not subject to §

2254(d)(1) deference, a [petitioner] must overcome the

“presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Ibid. (quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

For [petitioner] to succeed, however, he must do more than show

that he would have satisfied Strickland’s test if his claim were

being analyzed in the first instance, because under § 2254(d)(1), it

is not enough to convince a federal habeas court that, in its

independent judgment, the state-court decision applied Strickland 

incorrectly. See Williams, supra, at 411, 65 S. Ct. 363. Rather, he

must show that the [ ]Court of Appeals applied Strickland to the

facts of his case in an objectively unreasonable manner. 

Bell v. Cone, 535 U.S. 685, 698-699, 122 S. Ct. 1843,1852 (2002).

Analysis

On direct appeal, the California Court of Appeal explained its reasons for denying

this claim. Respondent’s Exhibit E. The California Supreme Court denied the petition for

review without comment or citation. Respondent’s Exhibit I. Accordingly, the court looks

through the decision of the California Supreme Court to determine whether the explained

decision by the California Court of Appeal was objectively reasonable. 

Petitioner alleges that the attorneys who represented him during sentencing were

ineffective for failing to investigate and present evidence of his mental illness and traumatic

childhood in support of his Romero motion. The background to this claim is as follows. 1

On October 23, 2001, petitioner’s trial counsel, Mr. McBride, brought a Romero

motion in the trial court requesting that the court exercise its discretion to strike petitioner’s

Three Strike allegations. See Reporter’s Transcript from October 23, 2001. The two prior

convictions were both for robbery, occurring in 1977 and 1980. CT at 16-18. At the hearing on

this motion, Mr. McBride argued that the two strikes were 21 and 24 years old. October 23,

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2001, Reporter’s Transcript, p. 5. Mr. McBride also argued that the victim was not “all clean” as

he had a loaded gun on the table. Id. He further argued that petitioner had expressed remorse. 

Id. 

In denying the Romero motion the court stated, 

All right. Your motion to strike the priors pursuant to Ramiro [sic] is denied. I 

think Mr. Jenkins is an individual within the spirit of the three strikes law. His 

history is long and continuing.

And I agree with the District Attorney’s comment that there is nothing in the 

record that indicates that the prior should be stricken. On the contrary, I think if I 

did strike the priors, it would be a misuse of Court discretion.

Id., p. 7.

At the conclusion of the October 23, 2001, hearing, the court appointed attorney

Mr. Riggs to assist petitioner in bringing a new trial motion. Id., p. 9-10. On December 14,

2001, a hearing was held regarding petitioner’s new trial motion. At the conclusion of the

hearing, the trial court denied the new trial motion. Transcript from December 14, 2001, pp. 20-

21. The court then relieved Mr. McBride of his duty to represent petitioner and appointed Mr.

Riggs to represent petitioner at judgment and sentencing. Id., p. 21.

At the December 21, 2001, sentencing hearing, Mr. Riggs argued that the court

should consider several mitigating factors to reduce petitioner’s sentence. In particular, Mr.

Riggs argued that the court should consider that petitioner was a poly-substance abuser of alcohol

and cocaine, he stole a small amount of money, he appeared to be a non-violent person and grand

theft of a person was a “wobbler,” meaning it could have been charged as a misdemeanor. 

Transcript from December 21, 2001, hearing, pp. 4-6. The court rejected these arguments and

sentenced petitioner to 29 years to life.

Petitioner now argues that Mr. McBride and Mr. Riggs were ineffective for failing

to raise the issues of his mental illness and traumatic childhood in support of their motions to

strike petitioner’s prior convictions. In support of the claim that petitioner had a traumatic

childhood, petitioner has presented the declarations of his sister, Louise Jenkins, and his halfCase 2:04-cv-01656-FCD-GGH Document 20 Filed 03/06/06 Page 7 of 19
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sister, Joyce Nisby. Ms. Jenkins states that petitioner was beaten by his step-father. Petitioner’s

Exhibit B. When petitioner was approximately ten years old, he witnessed his mother put out his

step-father’s eye in a violent assault. Id. Ms. Nisby states that she was present when petitioner

witnessed their mother put out their step-father’s eye. Petitioner’s Exhibit C.

In support of his claim that he was mentally ill, petitioner has presented records

from Napa State Hospital indicating that he was diagnosed as suffering from chronic paranoid

schizophrenia after he was committed there three times within the course of several months when

he was nineteen years old. Petitioner’s Exhibit D. The entry from July 21, 1977, states, 

Symptoms today, paranoid and grandiose delusions. He thinks people are after 

him trying to harm him. He has the grandiose idea of how smart he is, so much 

more so than other people around him. He has responded to hallucinatory voices, 

auditory hallucinations while in jail but denies hallucinations today. He is now 

correctly oriented. Memory is intact. He is functioning in the dull-normal range 

of intelligence. He is semi-literate. He is afraid that people are coming at him, 

trying to harm him. Affect is flat, blunted and inappropriate. He is suspicious and

rather fearful of other people, particularly white people. His speech is blocked 

with little spontaneity and his answers to questions are guarded, evasive and 

sometimes not truthful. He has no insight into his situation and denies mental 

illness. When he was here before he said he did not want to be here and didn’t 

believe that he belonged here. Now he says that he would rather be here than be 

in jail. Judgment poor, insight lacking, impulse control poor.

Petitioner’s Exhibit D.

An entry in petitioner’s medical records from October 17, 2001, while he was

waiting to be sentenced on the conviction challenged in the instant action states, 

A 43 y/o SBM long hr MI, hospitalized Napa 1982 and treated c Haldol and 

Prolixin.

Now presents c hearing telling him he “deserves what I got, telling me not to eat, I

should commit suicide.” Says never had out-pt treatment but at Napa State Hosp 

several times.

Alert, OX3, hyperverbal, pressured to talk about “I have 3 strikes,” thoughts

surprisingly well organized though rambling. Auditory hallucinations, no active 

suicidal preoccupation, no homicidal thoughts.

A-schizophrenia, paranoid type, chrno.

P. Rx Haldol...

Petitioner’s Exhibit F. 

\\\\\

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In her declaration, Ms. Jenkins states that the last time she saw petitioner, he was

out of custody and asked her to take him to Napa State Hospital. Petitioner’s Exhibit B. She

states that petitioner was crying in her backyard and saying that things were talking to him telling

him to take drugs. Id. 

Petitioner has also presented the declaration of Mr. Riggs, in which he discusses

why he failed to present evidence of petitioner’s mental illness. He states, in relevant part,

During the course of my representation of defendant for the Motion for New Trial 

and subsequent sentencing, I spent approximately 7.3 hours meeting with him and

interviewing or discussing the merits of his case, or lack thereof. A segment of 

this time was spent in fact finding about the defendant’s personal history.

During this fact finding segment, the defendant indicated that he had been at Napa

State Hospital in the “Seventies.” It is my recollection that I asked the defendant 

whether or not this had resulted from a California Welfare and Institutions Code 

section 5150 proceeding. When I probed that area of our discussion, he could not 

remember exactly why he had been at Napa State Hospital. Further, he minimized

the significance of this event in his life. I became further interested in his

background, because, as I told him, he seemed to be an intelligent, and likeable 

guy, but had really wasted his life. I asked him if he had any family members that 

could relate more of his history. He indicated that he had no family that I could 

contact. He stated that there was “no one.” 

During my representation of the defendant, I reviewed the court file. Nothing in 

the court file reflected that the client was currently suffering, or had suffered from 

mental health issues, other than alcohol and cocaine addiction.

I also spoke with defendant’s prior attorneys, regarding the merits of defendant’s 

case, including their impressions of the defendant. In addition, I spoke with the 

investigator who worked on defendant’s case about his investigation. In these 

meetings, with prior attorney(s) and the investigator, I did not learn about any 

information that related to mental health issues, (other than alcohol and cocaine 

addiction).

Defendant’s Pre-Sentence Probation Report include’s the defendant’s own 

statement that, “The defendant reported no physical or mental health problems.” 

(Page 5 Line 14, 15). This report was authored, and filed prior to my 

representation, and it was one of the documents I reviewed prior to meeting with 

the defendant.

In addition, defendant’s personal statement attached to the probation report, and 

thereby incorporated into the record, does not mention anything about mental 

health issues, other than his alcohol and cocaine usage and addiction.

My notes of my argument at sentencing indicates that I made a record that the 

defendant’s activity was mitigating and therefore fell within California Rule of 

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Court 423(b)(2), in that the defendant was suffering from a mental or physical 

condition, namely, poly-substance abuse: alcohol and cocaine dependency 

intoxication.

During my representation of the defendant and my person interviews with 

defendant, he did not exhibit any signs of mental illness, my experience as a 

criminal defense lawyer includes the representation of clients suffering from a 

host of mental health issues, in juvenile, adult (Penal Code section 1026 jury trials

and Penal Code section 1368 proceedings), and LPS conservatorships, as well as 

probate conservatorship civil cases, involving elderly clients with severe 

dementia. Other than alcohol and cocaine issues, the defendant did not display 

any mental illness symptoms similar to those clients. To the best of my 

knowledge he was not housed or classified as an inmate with mental health issues.

During my interaction with the defendant, he kept a “clip file” of recent and 

relevant cases, and local news articles relating to his case. He stated that he 

obtained much of this legal information from the jail law library, and indicated 

that he used the library often to work on his case, even befriending the inmate 

who ran the library. He had a clear understanding of how his research related to 

the charges against him, and he had a clear understanding about all of the defense

work that had been implemented on his behalf. He often offered to aid in the 

defense work that was performed on his behalf. His first hand observations about 

his experiences were insightful, relevant, and helpful to the preparation of his 

defense.

Petitioner’s Exhibit G. 

Petitioner has not provided the court with a declaration by Mr. McBride. 

However, in his own declaration, petitioner’s present counsel states that Mr. McBride was

apparently unwilling to provide him with a declaration regarding the issues raised in this action. 

Petitioner’s Exhibit A. 

Petitioner has not moved for an evidentiary hearing regarding the issue of why

Mr. McBride failed to investigate his childhood and mental illness. Even if petitioner had so

moved, the court would not hold an evidentiary hearing because petitioner would not be able to

show that the Strickland prejudice prong, a mixed question of fact and law, and hence, ultimately

a question of law, that the California courts acted unreasonably in their legal determination that

petitioner suffered prejudice. With respect to the present claim, petitioner would have to show

that but for Mr. McBride’s failure to present evidence of his traumatic childhood and mental

illness, the trial court would have stricken his prior convictions and not sentenced him pursuant

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to the Three Strikes Law. As will be discussed below, this court finds that even had the trial

court heard evidence regarding petitioner’s childhood trauma and mental illness, petitioner would

have received the same sentence.

In rejecting petitioner’s ineffective assistance of counsel claim the California

Court of Appeal found that petitioner did not present adequate evidence that either of his

attorneys had any factual basis to suspect that petitioner suffered from a mental illness or an

unusually traumatic childhood:

Jenkins’s first trial counsel, McBride, states that he saw nothing in the files to 

indicate that Jenkins suffered from such a condition. Riggs, who was appointed 

after the trial to file a motion for new trial, declares that the pre-sentence 

probation report included Jenkins’s own statement that he did not have any mental

health problems, that Jenkins exhibited no signs of mental illness in his 

interviews, and actively and ably assisted Riggs in performing work in aid of his 

defense. Jenkins did mention that he had been at Napa State hospital in the 70's, 

but could not remember why, and “minimized the significance of this event in his 

life.”

Similarly, with respect to the evidence of the violence and trauma in his childhood

home, Jenkins did not himself report this personal history, and he provided 

McBride with the name of only one relative, who McBride tried, unsuccessfully, 

to contact, and told Riggs there was “no one” he could contact.

On this showing there is simply no prima facie case that trial counsel knew, or 

should have known, that Jenkins might have a mental illness, and that further

investigation could lead to the discovery of favorable evidence. “Criminal trial 

counsel have no blanket obligation to investigate ‘mental’ defenses, even in a

capital case.” (People v. Gonzales, supra, 51 Cal.3d at pp. 1244.) The case upon 

which Jenkins relies, People v. Mozingo (1983) 34 Cal.3d 926, is distinguishable, 

because in that case, the prosecutor had given trial counsel a file that included 

Mentally Disordered Sex Offender reports which contained significant indications

of a psychiatric problem. (Id. at p. 932).

Respondent’s Exhibit F, pp. 2-3.

With respect to Mr. McBride, the court cannot evaluate the reasonableness prong

of the Strickland test because it does not have any evidence before it regarding why Mr. McBride

acted as he did. However, with respect to Mr. Riggs, the court finds that the California Court of

Appeal’s finding that he did not act unreasonably was not an unreasonable application of clearly

established Supreme Court authority. This court agrees that nothing in the record suggests that

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Mr. Riggs knew, or should have known, that petitioner might have had a mental illness, and that

further investigation could have led to the discovery of favorable evidence. 

In his petition and traverse, petitioner cites several cases in support of his

argument that counsel had a duty to investigate petitioner’s mental illness: Evans v. Lewis, 855

F.3d 633, 636 (9 Cir. 1988); Smith v. Stewart, 189 F.3d 1004, 1009 (9 Cir. 1999); Correll v. th th

Stewart, 137 F.3d 1404, 1414-1415 (9 Cir. 1998). These cases involve counsel’s obligations in th

capital cases during the penalty phase. This court is aware of no clearly established Supreme

Court authority requiring counsel in non-capital cases to investigate potential mitigating evidence

of mental illness prior to sentencing if the record does not suggest that the petitioner has or had a

serious mental illness.

In his state habeas petition, petitioner argued that his mental illness constituted

newly discovered evidence entitling him to habeas relief. The California Court of Appeal

rejected this claim on grounds that it was not more likely than not that evidence of his mental

illness would have resulted in a different outcome on his motions to strike his prior convictions.

While the California Court of Appeal did not explicitly address the prejudice prong of the

Strickland test, this court finds its reasoning regarding petitioner’s newly discovered evidence

claim to be persuasive regarding this issue:

Nor is it, “more likely than not” that this evidence, if presented, would have 

resulted in a different outcome on the motions to strike his prior convictions, or to

reduce the current conviction to a misdemeanor. Evidence of mental illness is, of 

course, a recognized factor in mitigation, if it significantly reduces culpability for 

the crime.

Although evidence of mental illness would not have been strictly cumulative of 

the evidence of substance abuse already presented to the court, it is unlikely that it

would have made a qualitative difference in the court’s exercise of discretion to 

deny these motions. To support the exercise of discretion to grant a motion to 

strike, the evidence must persuade the court that the defendant is outside the 

scheme of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161;

People v. Garcia (1999) 20 Cal.4th 490, 499-500.) Petitioner presents no 

evidence that the diagnosed mental illness actually played any role in the 

commission of the current offense, and his own statement concerning the 

circumstances of the offense does not suggest that he was suffering symptoms of 

his mental illness when he committed it. Nor does he present any evidence 

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linking his illness to the commission of his prior offenses. Neither of his 

attorneys observed any sign of mental illness, and the records he submits show 

that he did not manifest any symptoms in jail until just before sentencing under 

stress that he was facing a Three Strikes sentence. Thus, even if the evidence of 

the diagnosis in 1977 and of the October 2001, apparent relapse were credited, 

there is no nexus established between the mental illness, his current offense, his 

prior convictions, and the innumerable parole violations in the intervening years. 

The court, in denying appellant’s motion to strike stated that in light of appellant’s

record of recidivism, it might even be an abuse of discretion for it to grant the 

motion. The standard for collateral relief requires more than the mere possibility 

that the “new” evidence, might have produced a more favorable result. 

Petitioner’s showing simply does not rise to the much higher standard of 

presenting newly discovered evidence which “more likely than not” would have

altered the outcome.

Respondent’s Exhibit F, pp. 3-4.

Based on the reasoning of the California Court of Appeal, this court finds that

petitioner has not met his burden in demonstrating unreasonableness on the part of the California

courts. Based on petitioner’s extensive criminal history and because petitioner did not directly

link his mental illness to the charged offenses, there is no reasonable probability that introduction

of this evidence would have changed the outcome of petitioner’s motions to strike his prior

convictions. 

This court also finds that there is no reasonable likelihood that the outcome of his

motions to strike his prior convictions would have been different had counsel introduced

evidence of petitioner’s traumatic childhood. Based on his extensive criminal history, evidence

of petitioner’s troubled upbringing would not have changed the outcome. 

For the reasons discussed above, the court finds that petitioner’s ineffective

assistance of counsel claim should be denied.

 B. Eighth Amendment

Petitioner raised this claim in his state habeas petitions. The California Court of

Appeal issued a decision explaining its reasons for denying this claim. Respondent’s Exhibit F.

The California Supreme Court denied petitioner’s habeas corpus petition without comment or

citation. Respondent’s Exhibit I. Accordingly, the court looks through the decision of the

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California Supreme Court to determine whether the explained decision by the California Court of

Appeal was objectively reasonable. 

Petitioner argues that his sentence violates the Eighth Amendment because it is

disproportionate to his crimes.

In Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166 (2003), the Supreme Court

established that although a sentence that is “grossly disproportionate” to the crime committed

violates the Eighth Amendment prohibition against cruel and unusual punishment, state

legislative policies directed to the problem of criminal recidivism are an important factor and are

entitled to great deference in weighing the “gravity of the offense” for which an enhanced

sentence is given under state repeat offender laws. Id. at 72. Deference given to state recidivism

policies in Eighth Amendment cases, however, is not unlimited. Id. And in some “exceedingly

rare” and “extreme case[s],” sentences validly imposed under a state recidivism statute may still

violate the Eighth Amendment. Id.

It is only necessary to review Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179

(2003) and Lockyer to understand that petitioner’s claim herein cannot overcome the AEDPA

“unreasonable” barrier. Each case involved an Eighth Amendment challenge after the sentences

for relatively minor offenses were greatly enhanced pursuant to state repeat offender laws. They

also involved enhanced sentences that mandated a minimum term of imprisonment by reason of

the defendant’s repeat offender status that was higher than the maximum prison term that could

have been imposed for the same crime as a first offense. In each of these cases, the Supreme

Court first found that the “gross disproportionality” standard was the applicable legal standard. 

Next, the Court reasoned that the “gravity of the offense” for which the enhanced sentence was

imposed must be assessed under the Eighth Amendment, not only by reference to the nature and

severity of the triggering offense, but also by reference to the state’s recidivism policy, as

expressed in the state’s repeat offender statutes, and to the totality of the offender’s criminal

history.

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In Lockyer and Ewing, the Supreme Court affirmed California Three Strikes Law

sentences for two “career criminals” with lengthy criminal histories and triggering offenses that

repeated their prior crimes. In Lockyer, a federal habeas proceeding, the defendant was

convicted of two felony counts of petty theft with a prior conviction and sentenced to two

consecutive terms of 25 years to life. Andrade’s criminal history included the following

activities: multiple counts of burglary, for which he was sentenced 120 months in prison;

misdemeanor theft, for which he was sentenced to six days in jail with a year of probation;

transportation of marijuana, for which he was sentenced to eight years in federal prison;

misdemeanor theft, for which he was sentenced to 180 days in jail; and transportation of

marijuana, for which he was sentenced to 191 days in federal prison. He was also arrested for a

state parole violation arising from his escape from federal prison. The Supreme Court held that

because “the precise contours” of the gross disproportionality principle were “unclear” the state

court did not make an objectively unreasonable application of clearly established federal law.

Lockyer, 538 U.S. at 68-70.

In Ewing, a direct appeal case, the Supreme Court affirmed the state court’s

upholding of Ewing’s sentence of 25 years to life in prison. Ewing, 538 U.S. at 29-30. The

triggering offense for Three Strikes Law purposes was grand theft of $1,200 of merchandise and

was petitioner’s fifteenth conviction for which he had previously served nine separate terms of

incarceration. Id. at 18. Petitioner’s criminal history evidenced a pattern of increasing violence. 

While noting that Ewing’s triggering offense of grand theft “was certainly not one of the most

passive felonies a person could commit . . . . In weighing the gravity of Ewing’s offense, we must

place on the scales not only his current felony, but also his long history of felony recidivism. 

Any other approach would fail to accord proper deference to the policy judgments that find

expression in the legislature’s choice of sanctions.” Id. at 28-30. After careful consideration of

Ewing’s triggering offense, along with his long, violent criminal history, the Court ruled that

Ewing’s sentence did not raise an inference of gross disproportionality. Id. at 30.

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A copy of petitioner’s criminal history is attached to the probation officer’s report

filed by respondent:

1. 1976–convicted of Cal. Bus. & Prof. Code § 25665 (misdemeanor); sentenced 

to 36 months probation.

2. 1977–convicted of Cal. Penal Code § 211 ( robbery) (felony); sentenced to 60 

months state prison.

3. 1979–convicted of Cal. Penal Code § 211 (robbery) (felony); sentenced to 5 

years state prison.

4. 1984–convicted of Cal. Penal Code § 487.2 (grand theft from a person)

(felony); sentenced to 5 years state prison.

5. 1987–convicted of Cal. Health & Saf. Code § 11350 (possession of a 

controlled substance) (felony); sentenced to 4 years state prison.

6. 1988–convicted of parole violation. 

7. 1989–convicted of parole violation.

8. 1990–convicted of parole violation.

9. 1991–convicted of parole violation.

10. 1992–convicted of parole violation.

11. 1992–convicted of Cal. Health & Saf. Code § 11352 (sale of a controlled 

substance) (felony); sentenced to 8 years state prison.

12. 1997–convicted of Cal. Penal Code § 148(a) (resisting arrest) (misdemeanor).

13. 1998–convicted of Cal. Health & Saf. Code § 11364 (possession of drug 

paraphernalia) (misdemeanor).

14. 1998–convicted of Cal. Vehicle Code § 40509(a) (failure to appear)

(misdemeanor).

15. 2000–convicted of Cal. Penal Code § 487(c) (grand theft) (felony). 

In light of these two cases, petitioner’s sentence is not grossly disproportionate to

the crime committed for Eighth Amendment purposes in light of his criminal history.

Petitioner’s two prior convictions were for robbery. As did the defendants in Ewing and

Lockyer, petitioner has a lengthy criminal history, and he has been incarcerated several times. 

\\\\\

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In a recent case decided post Lockyer and Ewing, the Ninth Circuit found that the

25-year-to-life sentence under the Three Strikes Law was unconstitutional where imposed for a

third offense of shoplifting a $199 VCR and the petitioner’s prior criminal history consisted

solely of two convictions for second-degree robbery upon a single guilty plea. Ramirez v.

Castro, 365 F.3d 755 (9th Cir. 2004). The federal appellate court held that these facts constituted

one of those “exceedingly rare” cases, referenced in Lockyer v. Andrade, supra, in which the

sentence imposed was grossly disproportionate. Ramirez, 365 F.3d at 756-57. Prosecutors in the

1996 charge used two nonviolent shoplifting offenses committed in 1991 to which petitioner had

pled guilty for which he had served one sentence of just over six months in county jail to charge

petitioner with one count of petty theft with a prior theft-related conviction, punishable as a

felony, after which the jury found the 1991 convictions were strikes. Id. at 756. Although the

trial court, pre-trial, had indicated an inclination to do so, it denied Ramirez’s motion to strike

one or both of the two prior shoplifts. Id. The 25 year-to-life sentence imposed for three

shoplifting convictions, the Ninth Circuit noted, was more severe than that which would have

been imposed if any of the crimes had been murder, manslaughter or rape. Id. 

Ramirez pled guilty to the two earlier shoplifting offenses, unaware that he was 

putting two strikes on his record, since the Three Strikes Law had not yet been enacted. Id. at

757. He took the plea for a one year sentence in county jail and three years probation after

having allegedly been told that his failure to do so would result in his sister, also implicated in

one of the shoplifts, being sentenced to five years in prison. Id. Ramirez served six months and

twenty days, was released and completed probation without incident. Id. Ramirez had no

encounters with the law until the third shoplifting offense several years later in which no force or

violence was associated; minimal force was associated with the prior offenses. Id. at 757-58. 

Ramirez could have been charged with a misdemeanor petty theft and sentenced to a maximum

of six months in jail. Id. at 758. Ramirez, unlike the recidivists in Rummel, Solem, Ewing and

Andrade, (and unlike petitioner herein) had never been sentenced to state prison, and in his entire

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criminal history, had only served one period of incarceration in county jail. Id., at 769. Finding

Ramirez’s case to constitute one of “the extremely rare case that gives rise to an inference of

gross disproportionality,....” the court proceeded to a comparative analysis of his sentence, intra

and inter jurisdictionally. Id ., at 770-773. The state court was ultimately found to have

unreasonably applied the gross disproportionality principle to the “unique facts of Ramirez’s

case.” Id., at 774.

In light of Lockyer and Ewing, petitioner’s sentence herein could only be found to

be grossly disproportionate to the crime committed for Eighth Amendment purposes if the facts

of his case were sufficiently analogous to those of the “extremely rare” case identified in

Ramirez. While the offense that led to petitioner’s Three Strikes sentence could have been

charged as a misdemeanor, his criminal history was more extensive than Ramirez and involved

incarceration in state prison. Petitioner’s criminal history does not demonstrate a criminal record

sufficiently analogous to that of Ramirez to warrant habeas relief. 

Petitioner also suggests that is it unconstitutional to sentence a mentally ill person

to 25 years to life whose offense did not involve injury. 

With respect to mental illness, the Supreme Court has only intervened in an

Eighth Amendment sentencing context in capital cases; it held that seriously mentally retarded

persons could not be given the death penalty. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242

(2002). And, that action was taken only recently. The undersigned cannot say in this AEDPA

context that in non-capital cases clearly established Eighth Amendment law requires the

consideration of mitigating factors. Indeed, circuit courts have held that it does not.

Uphoff’s five year sentence does not violate the Eighth Amendment or any other

provision of the federal Constitution. There was ample evidence by which the jury

could reject his insanity defense, and the imposition of a statutory mandatory

sentence without consideration of mitigating factors does not violate the Eighth

Amendment in circumstances like this. See Harmelin v. Michigan, 501 U.S. 957,

994-95, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); United States v. Rudolph, 970

F.2d 467, 469 (8th Cir.1992).

U.S. v. Uphoff, 232 F.3d 624, 626 (8th Cir. 2000).

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The denial of this claim by the California Court of Appeal was not an

unreasonable application of clearly established Supreme Court authority. Accordingly, this claim

should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for

a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 3/6/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

jenk1656.157

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