James Ivins v. M. Martel , 540 F. App'x 741 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ALLEN IVINS, No. 12-55703
Petitioner - Appellant, D.C. No. 5:09-cv-01022-GW-
MRW
v.
M. MARTEL, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted August 26, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**
Petitioner-Appellant James Allen Ivins appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his sentence as cruel and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
unusual punishment in violation of the Eighth Amendment. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
Our review is governed by the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Id. AEDPA restricts federal courts from granting a
habeas writ to a petitioner in custody after a state court judgment on the merits
unless the petitioner can show that the state court’s last reasoned adjudication of
the petitioner’s federal claim resulted in a decision that (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). AEDPA review is “highly
deferential.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citation omitted).
Ivins, a previously convicted sex offender, was convicted in California state
court for failing to register within five days of changing his location, failing to
inform the law enforcement agency with which he last registered of his change of
location, and for giving false information to a peace officer in violation of
California Penal Code § 290(a)(1)(A) and 290(f)(1), and California Vehicle Code §
31. His convictions for the registration offenses were upheld on direct appeal, but
his conviction for providing false information to a peace officer was reversed due
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to insufficient evidence. Under the California’s Three Strikes statute, the
sentencing judge imposed a mandatary sentence of 25 years to life for the
registration offenses, plus five additional years for Ivins’s five previous prison
terms.
Ivins filed a pro se petition for writ of habeas corpus in the state trial court
that was denied, and his subsequent petitions to the California Court of Appeal and
the California Supreme Court were also denied. In 2009, Ivins filed additional
habeas corpus petitions in each of the state courts that were all denied. He now
challenges the district court’s denial of the habeas corpus petition that he also filed
in 2009.
Ivins argues that his sentence of 30 years to life is cruel and unusual
punishment in violation of the Eighth Amendment because he was convicted of
only technical registration violations. However, we have held that a failure to
register a new address is not merely a technical violation because it goes to the
heart of the statute’s purpose: making sure that law enforcement officers can locate
sex offenders to protect the public. Crosby v. Schwartz, 678 F.3d 784, 793 (9th
Cir. 2012); Gonzalez v. Duncan, 551 F.3d 875, 884 (9th Cir. 2008). Ivins’s failure
to register his new location within the five-day period, coupled with his
falsification of his proof of registration and the false statements he made to parole
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and law enforcement officers, provides a reasonable basis for the district court’s
denial of his habeas corpus petition.
Because Ivins has failed to make “a substantial showing of the denial of a
constitutional right,” we decline to issue a certificate of appealability on the
uncertified issue. 28 U.S.C. § 2253(c)(2).
AFFIRMED.
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