Leroy Holsey v. William Knipp , 672 F. App'x 731 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
LEROY DALE HOLSEY, No. 15-17091
Petitioner-Appellant, D.C. No.
2:13-cv-00962-KJM-GGH
v.
WILLIAM KNIPP, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted December 13, 2016
San Francisco, California
Before: KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.
We may grant federal habeas relief to a state prisoner if the state’s
adjudication “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.” 28 U.S.C. § 2254(d)(1). The Supreme Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
has extended the Eighth Amendment’s prohibition on cruel and unusual
punishment to non-capital sentences that are “grossly disproportionate” to the
crime. Ewing v. California, 538 U.S. 11, 23 (2003). But successful
proportionality challenges are “exceedingly rare,” Rummel v. Estelle, 445 U.S.
263, 272 (1980), and we cannot grant habeas relief if “fairminded jurists could
disagree on the correctness” of the state court’s decision, Harrington v. Richter,
562 U.S. 86, 88 (2011) (internal quotation marks and citation omitted).
Our circuit has given federal habeas relief to a previous California prisoner
convicted of the same offense and sentenced to the same term that Holsey now
challenges. See Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008). But the
California Court of Appeal distinguished Holsey’s case from Gonzalez based on
Holsey’s greater propensity to recidivate, as did the district court. Because
fairminded jurists could conclude that Holsey’s pattern of recidivism rendered his
sentence constitutional, federal habeas relief is unavailable.
AFFIRMED.