Clarke v. Galaza , 73 F. App'x 296 ( 2003 )

MEMORANDUM^**

Warden George M. Galaza appeals from the district court’s order granting California state prisoner Samuel E. Clarke’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse and remand.

Warden Galaza contends that the district court improperly determined that Clarke’s 25 years-to-life “three-strikes” sentence, for driving under the influence and reckless driving causing bodily injury, was cruel and unusual punishment in violation of the Eighth Amendment.

In granting the writ in Clarke’s favor, the district court relied on this court’s decisions in Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir.2001), and Brown v. Mayle, 283 F.3d 1019, 1026 (9th Cir.2002) (relying on Andrade to determine that petitioner was entitled to habeas relief). However, the Supreme Court subsequently reversed Andrade and held California’s three-strikes law constitutional. Lockyer v. Andrade, 528 U.S. 63, 123 S.Ct. 1166, 1172-75, 155 L.Ed.2d 144 (2003) (holding that state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft was not contrary to or an unreasonable application of federal law); Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1185-90, 155 L.Ed.2d 108 (2003) (holding that a 25 years-to-life sentence under the California three-strikes law did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment). In light of the Supreme Court’s decision in Andrade, we conclude that Clarke’s sentence is not contrary to clearly established federal law. Id. Accordingly, we reverse the district court’s judgment and remand this case, and order the district court to deny Clarke’s petition in its entirety.

REVERSED and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.