460 F.3d 1093 (9th Cir. 2006), 04-17517, Taylor v. Lewis

Docket Nº:04-17517.
Citation:460 F.3d 1093
Party Name:Andy Bernard TAYLOR, Petitioner-Appellant, v. Gail LEWIS, Warden, Respondent-Appellee.
Case Date:August 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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460 F.3d 1093 (9th Cir. 2006)

Andy Bernard TAYLOR, Petitioner-Appellant,


Gail LEWIS, Warden, Respondent-Appellee.

No. 04-17517.

United States Court of Appeals, Ninth Circuit.

Aug. 15, 2006

Argued and Submitted June 13, 2006.

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[Copyrighted Material Omitted]

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Kevin G. Little, Fresno, CA, argued the cause for the petitioner-appellant. Samya Burney, Fresno, CA, was on the brief.

Justain P. Riley, Deputy Attorney General, Sacramento, CA, argued the cause for the respondent-appellee, which filed no brief. Respondent-appellee provided the notification required by Circuit Rule 31-2.3. The court granted permission to argue pursuant to Fed. R.App. P. 31(c).

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Senior Judge, Presiding. D.C. No. CV-02-05655-REC.

Before GOODWIN, O'SCANNLAIN, and THOMAS, Circuit Judges.


O'SCANNLAIN, Circuit Judge.

In this habeas case we review whether it was an unreasonable application of federal constitutional law for a California state court to decide that a "three strikes" sentence of 25 years to life for possessing 0.036 grams of cocaine did not violate the Eighth Amendment.



On the afternoon of August 30, 1998, police officers in Bakersfield, California, observed Andy Bernard Taylor fail to obey a stop sign while riding his bicycle. One of the officers recognized Taylor. The police stopped him and, with Taylor's consent, performed a search of his person. They found a glass pipe used for smoking cocaine base and other paraphernalia. Underneath the sweatband of Taylor's baseball cap, the officers also found small amounts of a substance they suspected to be rock cocaine. Subsequent testing confirmed that the substance contained 36 milligrams (0.036 grams) of cocaine base.


The State of California charged Taylor with felony possession of cocaine, in violation of California Health & Safety Code § 11350(a), and misdemeanor possession of narcotics paraphernalia, in violation of Health & Safety Code§ 11364.

The State also alleged that Taylor had been convicted of two prior felonies. The

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first was a May 23, 1980, conviction for voluntary manslaughter, in violation of California Penal Code § 192.1; the second was a September 24, 1986, conviction for robbery with a firearm enhancement, in violation of Penal Code §§ 211 and 12022.5.

Taylor pleaded not guilty to the charges and denied all allegations. He filed a motion to suppress the evidence obtained from the search of his person, which the district court denied.

Taylor's jury trial on the cocaine and paraphernalia possession charges commenced on January 4, 1999. 1 Taylor claimed that he made a full stop at the stop sign. He further claimed that the baseball cap in which the rock cocaine was found belonged to his girlfriend, and he denied knowledge that the rock cocaine was there. He admitted ownership of the drug paraphernalia.

Taylor also admitted to having used crack cocaine habitually since 1986. He testified that he would buy cocaine daily in small quantities and would smoke it shortly thereafter. One of the officers who arrested Taylor provided rebuttal testimony that it would have been uncharacteristic for a crack user (i.e., Taylor's girlfriend) to leave her drugs in the custody of another person.

The jury found Taylor guilty on both counts. At the subsequent sentencing hearing, the court declined to dismiss any of the prior-conviction allegations. On the felony possession count, the court sentenced Taylor to a term of imprisonment of 25 years to life under California's three strikes law. It also sentenced Taylor to a concurrent six-month term for the misdemeanor count of possessing drug paraphernalia.


Taylor directly appealed the convictions. On August 29, 2000, the California Court of Appeal, Fifth Appellate District, considered Taylor's cruel-and-unusual-punishment argument. The court stated that Taylor's recidivism, not just his current offense, inspired the length of his prison term. It further remarked that Taylor's "offense and criminal history are, in combination, as aggravated as many third strike offenders coming before this court." The court therefore affirmed the trial court's judgment. The California Supreme Court denied review on November 1, 2000.

On January 19, 2001, Taylor filed a pro se petition for writ of habeas corpus in the Kern County Superior Court. The court denied the petition and subsequently denied reconsideration.

Taylor filed the same pro se petition for writ of habeas corpus in the California Court of Appeal on May 18, 2001. The court denied the petition without opinion. Taylor then filed the petition in the California Supreme Court, which denied relief without opinion on April 27, 2002.


On June 3, 2002, Taylor filed this petition for writ of habeas corpus in the United States District Court for the Eastern District of California. A magistrate judge subsequently denied Taylor's motion for appointment of counsel for purposes of the federal habeas proceedings.

On August 27, 2004, Magistrate Judge Lawrence J. O'Neill issued his Findings and Recommendation Regarding Petition for Writ of Habeas Corpus and recommended the denial of all claims. District Judge Robert E. Coyle adopted the magistrate

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judge's recommendation and denied the habeas petition.

Still acting pro se, Taylor timely mailed his notice of appeal. Judge Coyle denied issuance of a certificate of appealability ("COA").

On December 10, 2004, Taylor filed a request for COA with this court. We granted the COA with respect to two issues. 2 We also ordered appointment of counsel on appeal.



Taylor argues that the state court contradicted and unreasonably applied federal law when it held that his three strikes sentence of 25 years to life in prison did not violate the U.S. Constitution's prohibition of cruel and unusual punishment. 3 Specifically, he contends that the "harsh penalty" he received for a "minor offense" indicates gross disproportionality in violation of the Eighth Amendment. Taylor considers his third felony to have been a nonviolent, passive, and victimless crime. In addition, Taylor contends that the sentence imposed is not justified by his prior offenses because our focus must be on the offense that triggered the harsh sentence. 4


The Supreme Court has held that the Eighth Amendment includes a "narrow proportionality principle" that applies to terms of imprisonment. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). 5 The principle

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"does not require strict proportionality between crime and sentence," but rather "it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id. at 1001, 111 S.Ct. 2680 (quoting Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Accordingly, successful challenges based on proportionality are "exceedingly rare," and deference is due legislative judgments on such matters. Solem, 463 U.S. at 289-90, 103 S.Ct. 3001.

In assessing the compliance of a non-capital sentence with the proportionality principle, we consider "objective factors" to the extent possible. Id. at 290, 103 S.Ct. 3001. Foremost among such factors are the severity of the penalty imposed and the gravity...

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