Huegerich v. Lamarque

MEMORANDUM ^**

California state prisoner Rick Lee Huegerieh appeals pro se the district court’s judgment dismissing with prejudice his 28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Huegerieh’s contention that his 25-years-to-life sentence, imposed under California’s Three Strikes law, violates the Eighth Amendment’s prohibition against cruel and unusual punishment is foreclosed by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172-75, 155 L.Ed.2d 144 (2003) (holding that the 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).

Huegerieh also contends that California’s Three Strikes law violates the Ex Post Facto Clause of the Constitution. We do not consider this contention, not only because it is beyond the scope of the certificate of appealability, see 28 U.S.C. § 2253(c), but also because this apparently unexhausted claim was not raised in district court, see Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001) (declining to consider an issue raised for the first time on appeal).

Appellee’s motion for summary affirmance and attached exhibits are deemed Appellee’s Answering Brief and Supplemental Excerpts of Record.

All pending motions are denied as moot.

AFFIRMED.

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