Lonnie Poslof, Sr. v. James Yates ( 2011 )


Menu:
  •                                                                               FILED
    NOT FOR PUBLICATION                               DEC 21 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    LONNIE LEE POSLOF, Sr.,                            No. 09-55686
    Petitioner - Appellant,             D.C. No. 5:06-cv-01418-AG-SH
    v.
    MEMORANDUM *
    JAMES A. YATES, Warden,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Andrew J. Guilford, District Judge, Presiding
    Argued and Submitted November 17, 2011
    Pasadena, California
    Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
    Lonnie Lee Poslof, Sr., appeals the district court’s denial of his petition for a
    writ of habeas corpus, arguing that his sentence of 27 years to life in state prison is
    cruel and unusual punishment in violation of the Eighth Amendment to the U.S.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Constitution. We have jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253, and we
    affirm.
    In 1992, Poslof pled guilty to two counts of lewd and lascivious acts with a
    child in violation of California Penal Code § 288. He served a sentence in
    California State prison and was released on parole in 1995.
    Because Poslof was convicted of a felony sex offense, California law
    required that he register his residence with the local authorities. He was required
    to register any additional residence, Former § 290(a)(1)(B), or any change of
    residence within five working days, Former § 290(a)(1)(A). California law
    declared willful violation of the registration requirement to be a felony punishable
    by imprisonment “for 16 months, or two or three years.” Former § 290(g)(2).
    In August 2002, Poslof claimed to be residing part-time at two different
    residences. He had registered only one of them. He had not registered the
    residence that he had bought recently, and at which he was residing. The State
    charged Poslof with willful violation of Section 290. Evidence presented at trial
    indicated that he was no longer residing at his previous residence. A jury
    convicted him of the charged offense. In a bifurcated trial, the trial court also
    found true allegations that Poslof had two prior convictions for lewd and lascivious
    acts upon a child, which qualified as serious or violent felonies. The trial court
    2
    sentenced Poslof to 27 years to life in state prison under California’s Three Strikes
    law, 
    Cal. Penal Code § 667
    (e)(2)(A).
    Poslof argues that his third-strike felony of failing to register his second
    address is a nonviolent, regulatory offense and that the harshness of the penalty is
    grossly disproportionate to the gravity of that offense. Poslof relies on Gonzalez v.
    Duncan, 
    551 F.3d 875
     (9th Cir. 2008), and People v. Carmony, 
    127 Cal. App. 4th 1066
     (2005). In those cases, the triggering offense was failing to update
    registration within five working days of the offender’s birthday in violation of
    Former Section 290(a)(1)(D) of the California Penal Code. Gonzalez, 
    551 F.3d at 885, 887
    ; Carmony, 127 Cal. App. 4th at 1071-72. Both courts analyzed the
    gravity of the triggering offense, noting that it was regulatory in nature and that
    there was no danger to society because the offenders were living at their registered
    addresses. Gonzalez, 
    551 F.3d at 885, 887
    ; Carmony, 127 Cal. App. 4th at 1072-
    73.
    Poslof, however, was convicted of the more serious offense of failing to
    register a new residence. Gonzalez and Carmony are inapposite because Poslof
    was residing at an unregistered location. See People v. Nichols, 
    176 Cal. App. 4th 428
    , 436 (2009); People v. Meeks, 
    123 Cal. App. 4th 695
    , 708 (2004).
    3
    The California Court of Appeal’s decision that Poslof’s sentence was not
    grossly disproportionate to his offense was not contrary to, or an unreasonable
    application of, clearly established federal law as determined by the U.S. Supreme
    Court. See 
    28 U.S.C. § 2254
    (d)(1); Lockyer v. Andrade, 
    538 U.S. 63
     (2003).
    AFFIRMED.
    4
    

Document Info

Docket Number: 09-55686

Judges: Goodwin, Fletcher, Rawlinson

Filed Date: 12/21/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024