Banyard

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND VACATING SENTENCE

INTRODUCTION

Petitioner Michael Banyard was arrested for possessing a fraction of a gram of rock cocaine, which he had just purchased and which was enough only for a single use. Banyard, however, was charged under the California Three Strikes Law (“Three Strikes Law”) and was determined by the sentencing court to have had two prior “serious felony” convictions (or “strikes”): one for robbery and one for assault with a deadly weapon. CaLPenal Code §§ 1170.12, 1192.7. The cocaine possession conviction was considered to be Banyard’s third strike and he was sentenced to twenty-five years to life in prison. He must serve a minimum term of twenty-five years, without credit for “good time,” before even becoming eligible for parole.

Banyard’s sentence is grossly disproportionate to his offense and constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Moreover, there was insufficient evidence that Banyard’s assault conviction constituted a strike, and he suffered ineffective assistance of counsel at the Three Strikes phase of his trial and on appeal. The California Court of Appeal’s…