Charles Windham v. Matthew Cate , 594 F. App'x 911 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES W. WINDHAM, No. 12-56397
Petitioner - Appellant, D.C. No. 5:09-cv-02340-RSWL-
JEM
v.
MATTHEW L. CATE, Secretary of MEMORANDUM*
CDCR; JERRY BROWN, Attorney
General of California,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted November 21, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**
Charles Windham appeals the district court’s judgment denying his petition
for a writ of habeas corpus. Windham was convicted in 2002 of three counts of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
violating California’s sex-offender registration laws: one count of failing to notify
law enforcement of a change in his address (Cal. Penal Code § 290(f)(1) (2000))
and two counts of failing to update his sex offender registration annually (Cal.
Penal Code § 290(a)(1) (2000)). Pursuant to California’s Three Strikes law, he
received three sentences of 25 years to life in prison—one on each count—to run
consecutively.
After the district court dismissed Windham’s habeas corpus petition, we
granted a certificate of appealability on the following issue: “whether [Windham’s]
sentence of 75 years to life constitutes cruel, unusual and disproportionate
punishment in violation of the Eighth Amendment, including whether [trial]
counsel was ineffective for failing to raise this issue at sentencing.” Because no
state court has passed upon the merits of these questions, we review both de novo.
Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002). We affirm the decision
of the district court.
We first conclude that Windham’s sentence does not violate the Eighth
Amendment. Although a sentence of 75 years to life is indisputably harsh, we
must weigh the harshness of this punishment against the gravity of Windham’s
offenses and, if that comparison does not “lead[] to an inference of gross
disproportionality,” we must reject Windham’s Eighth Amendment claim.
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Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring in part
and concurring in the judgment). A comparison between the gravity of Windham’s
present and past offenses and the harshness of his sentence raises no such
inference.
Our case law “emphasize[s] a consistent principle found in the sex offender
registration context—whether the crime is a de minimis crime for which a life
sentence is disproportionate is related to how closely the violation is tied to helping
achieve the purposes of the sex offender registration statute.” Crosby v. Schwartz,
678 F.3d 784, 794 (9th Cir. 2012). In Crosby, we upheld the Three Strikes
sentence (26 years to life) of a California sex offender who failed to notify law
enforcement when he changed his address because that failure was “directly
related” to the state’s interest in keeping track of sex offenders and thus a serious
offense that posed a threat to the public. Id. at 793–94. By contrast, in Gonzalez v.
Duncan, we held that the Three Strikes sentence (25 years to life) of a defendant
who failed to annually update his California sex-offender registration raised an
inference of gross disproportionality because the defendant’s crime was “‘an
entirely passive, harmless, and technical violation’” that caused the public no
actual harm. 551 F.3d 875, 889 (9th Cir. 2008) (quoting People v. Carmony, 26
Cal. Rptr. 3d 365, 372 (Ct. App. 2005)).
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Windham’s case is far more akin to Crosby than to Gonzalez. Windham left
California for a year and a half, in deliberate violation of his parole and without
notifying law enforcement. When he returned to California, he lived out of his car
and altered his appearance in order to avoid contact with the police. Windham, in
other words, did not merely commit “passive” violations of the registration laws;
rather, he actively and intentionally evaded police surveillance and, in so doing,
posed a threat to the public. See Crosby, 678 F.3d at 794; In re Coley, 283 P.3d
1252, 1272 (Cal. 2012) (holding that a failure to update sex-offender registration
should not be considered a minor or technical offense when committed “as part of
a more general course of conduct that demonstrates a deliberate general
unwillingness to comply with the sex offender registration requirements”). His
offenses of conviction were therefore serious offenses that warranted substantial
punishment.
We must also take Windham’s criminal history into account in assessing the
gravity of his offense. Ewing v. California, 538 U.S. 11, 29 (2003) (plurality
opinion). Although most of Windham’s criminal record derives from a single
incident, that incident—which led to his conviction in 1985 of two counts of
forcible rape, two counts of kidnapping, and one count of assault with a deadly
weapon—was both violent and disturbing. After considering Windham’s 1985
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convictions together with his present offenses, we conclude that Windham’s “is not
the rare case in which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality.” Id. at 30(internal quotation marks omitted).
Because Windham’s Eighth Amendment claim fails on the merits, we reject
his claim of ineffective assistance of counsel on the grounds that Windham
suffered no prejudice from his attorney’s failure to make an Eighth Amendment
argument at sentencing. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
AFFIRMED.
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